O'Riordan v O'Connor

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan,Ms. Finlay Geoghegan
• Judgment Date: 05 May 2005
• Neutral Citation: [2005] IEHC 96,[2005] IEHC 153
• Court: High Court
• Docket Number: [2002 No. 53 Cos]
• Date: 05 May 2005

O'RIORDAN v O'CONNOR; TIPPERARY FRESH FOODS LTD (IN LIQUIDATION), IN RE

IN THE MATTER OF TIPPERARY FRESH FOODS LIMITED

(IN LIQUIDATION)

AND IN THE MATTER OF

SECTION 150 OF THE COMPANIES ACT, 1990

AND

SECTION 56 OF THE COMPANY LAW ENFORCEMENT ACT, 2001

BETWEEN

WILLIAM O'RIORDAN

APPLICANT

AND

JOSEPH COLEMAN O'CONNOR JOSEPH PETER O'CONNOR AND DONAL O'CONNOR

RESPONDENTS

JUDGMENT RE COSTS OF INVESTIGATION

[2005] IEHC 153

[No: 53 COS/2001]

THE HIGH COURT

COMPANY LAW:

Directors

Restriction - Costs - Costs of investigation - Whether court had discretion to award costs to official liquidator for remuneration for time spent investigating matter - Companies Act 1990 (No 30), s 150(4B) - Order refused - (2001/53COS - Finlay Geoghegan J - 5/5/2005) [2005] IEHC 153

O'Riordan v Coleman

Facts: Declarations of restriction pursuant to s.150 of the 1990 Act were made in respect of each of the respondents. Subsequently, the solicitors for the official liquidator claimed on behalf of the official liquidator pursuant to s.150(4B) of the 1990 Act the costs incurred by him in investigating the matter.

Held by Finlay Geoghegan J. in favour of the respondents: That s.150(4B) of the Act of 1990 could not be construed so as to include in the phrase "costs incurred by the applicant in investigation the matter" the amount claimed by the official liquidator as remuneration in respect of the time spent by him and his colleagues in investigating the matter.

Mitek Holdings Limited (In Liquidation) and Ors.

[2002 No:438 COS] followed.

Reporter: L. O'S

COMPANIES ACT 1990 S150(4B)

COMPANY LAW ENFORCEMENT ACT 2001 S56

GRACE (LIQUIDATOR) v KACHKAR (MITEK HOLDINGS LTD) UNREP FINLAY GEOGHEGAN 21.2.2005 2005/39/8110 2005 IEHC 63

1 Ms. Justice Finlay Geoghegandelivered on the 5th day of May, 2005.

2 Declarations of restriction pursuant to s.150 of the Companies Act of 1990 were made in respect of each of the respondents herein. On the 18th March, 2005, I concluded that s.150 (4B) of the Act of 1990 applies to this application. Following that decision, the solicitors for the official liquidator furnished details of the claim on behalf of the official liquidator for the costs incurred by him in investigating the matter. The claim includes a claim in respect of the remuneration of the official liquidator in respect of the time spent by him, a senior manager and a senior associate of his firm in investigating the matter. It also includes a claim in respect of legal costs incurred by him in investigating the matter. These are sums due by him to his solicitors for advices and work done by them.

3 The respondents oppose the claim for the remuneration of the official liquidator in respect of the time spent by him and his colleagues in investigating the matter upon the basis that such sums are not "costs incurred by the applicant" within the meaning of s.150 (4B). The same point was taken on behalf of the respondents in the matter of Mitek Holdings Limited (In Liquidation) and Ors. I had already heard submissions on the issue in that application and reserved my decision. Accordingly I arranged for submissions on the same issue in this application prior to my determining the issue.

4 The submissions made by counsel for the parties in these proceedings were substantially the same as the submissions made by the parties in Mitek Holdings Limited (In Liquidation) albeit perhaps put in a slightly different way. I have considered the submissions made by counsel in both sets of proceedings.

5 I have concluded that s.150(4B) of the Act of 1990 cannot be construed so as to include in the phrase "costs incurred by the applicant in investigating the matter" the amount claimed by the official liquidator as remuneration in respect of the time spent by him and his colleagues in investigating the matter. The reasons for which I have reached this conclusion are fully set out in the judgment delivered to-day in the matter of Mitek Holdings Limited (In Liquidation) and Ors. [2002 No: 438 COS].

6 In this application, I will disallow so much of the claim as relates to remuneration for the time spent by the official liquidator and his colleagues in investigating the matters. The claim for the legal costs is allowable in principle.

O'RIORDAN v O'CONNOR

IN THE MATTER OF TIPPERARY FRESH FOODS LIMITED

(IN LIQUIDATION)

AND IN THE MATTER OF

SECTION 150 OF THE COMPANIES ACT, 1990

AND

SECTION 56 OF THE COMPANY LAW ENFORCEMENT ACT, 2001

BETWEEN

WILLIAM O'RIORDAN

APPLICANT

AND

JOSEPH COLEMAN O'CONNOR JOSEPH PETER O'CONNOR AND DONAL O'CONNOR

RESPONDENTS

[2005] IEHC 96

[No: 53COS/2001]

THE HIGH COURT

COMPANY LAW:

Costs

Directors - Restriction - Liquidation prior to commencement of Act - Restriction order post-commencement - Whether liquidator entitled to order for costs of investigation - Companies Act 1990 (No 33), s 150(4B) - Costs refused (2002/53Cos - Finlay Geoghegan J - 18/3/2005) [2005] IEHC 96

In re Tipperary Fresh Foods Ltd: O'Riordan v O'Connor

STATUTORY INTERPRETATION:

Construction

Presumption against retroaction - Whether s. 150(4B) of Act of 1990 retrospective - Whether presumption against retrospective construction applies to enactments which affect only practice and procedure of courts - Whether presumption against retrospectivity applies to s. 41 of Act of 2001 - Whether power conferred on court under s. 150(4B) of the Act of 1990 procedural in nature - Rules of the Superior Courts 1986 (SI 15/1986), O 99 - Companies Act 1990 (No 33), s 150 - Company Law Enforcement Act 2001 (No 28), ss 41 and 56 - Costs refused (2002/53Cos - Finlay Geoghegan J - 18/3/2005) [2005] IEHC 96

In re Tipperary Fresh Foods Ltd: O'Riordan v O'Connor

The High Court made declarations of restriction against the first and third respondents. The liquidator sought, pursuant to s. 150(4B) of the Companies Act 1990, both the costs of the application and the costs incurred in investigating the matter. It was undisputed that the Court had jurisdiction to make an order for the costs of the application under O. 99. However, it was also common case that the costs of investigation would not come within the ambit of an order for costs under O. 99. On behalf of the respondents it was contended that the liquidator was not entitled to rely on s. 150(4B) as the liquidation commenced before the subsection came into force.

Held by Finlay Geoghegan J. that the Oireachtas had clearly and unequivocally in the terms of s. 41 of the Company Law Enforcement Act 2001 which inserted s. 150(4B) of the Companies Act 1990 declared its intention that such section should take effect retrospectively in the sense of applying to a liquidation which commenced prior to the coming into operation of s. 41 of the Act of 2001.

Reporter: R.W.

COMPANIES ACT 1990 S150

COMPANIES ACT 1990 S150(4)(B)

RSC O.99

COMPANY LAW ENFORCEMENT ACT 2001 S41

COMPANY LAW ENFORCEMENT ACT 2001 (COMMENCEMENT) (NO 5) ORDER 2002 SI 53/2002

COMPANY LAW ENFORCEMENT ACT 2001 S56

COMPANY LAW ENFORCEMENT ACT 2001 (WINDING-UP & INSOLVENCY PROVISIONS) (COMMENCEMENT) ORDER 2003 SI 217/2003

HAMILTON v HAMILTON 1982 IR 466

CRAIES ON STATUTE LAW 7ED 387

MAXWELL INTERPRETATION OF STATUTES 12ED 1969 222

HEFFERON KEARNS LTD (NO 1), IN RE 1993 3 IR 177

WRIGHT v HALE 1860 6 H & N 227

KIMBRAY v DRAPER 1868 LR 3 QB 160

COMPANIES ACT 1990 S150(2)

COMPANIES ACT 1990 S150(1)(A)

COMPANIES ACT 1990 S150(1)(B)

COMPANIES ACT 1990 S150(1)(C)

COMPANIES ACT 1990 S149(3)

COMPANY LAW ENFORCEMENT ACT 2001 S41(1)(C)

COMPANIES ACT 1990 S150(4A)

COMPANY LAW ENFORCEMENT ACT 2001 S7

1 Judgement of Ms. Finlay Geoghegan dated the 18th day of March 2005 .

2 The applicant is the Official Liquidator of Tipperary Fresh Foods Limited (In Liquidation) ("The Company") having been so appointed by order of the High Court on the 26th March, 2001. On the 26th April, 2004, the Official Liquidator issued a motion seeking declarations of restriction pursuant to s.150 of the Companies Act, 1990 in respect of the three respondents.

3 The first and third named respondent did not oppose the application against them. On the 11th October, 2004, a declaration of restriction was made in respect of the first and third named respondents pursuant to s.150 of the Act of 1990.

4 The Official Liquidator now seeks, pursuant to s.150 (4B) of the Act of 1990, (as amended) both the costs of the application and the costs incurred in investigating the matter. It is undisputed that the court has jurisdiction to make an order for the costs of the application under Order 99 of the Rules of the Superior Courts. On behalf of the respondents it is contended that the Official Liquidator is not entitled to rely on s.150 (4B) in this liquidation as the liquidation commenced before the subsection came into force. It is contended on behalf of the respondents that to permit the Official Liquidator to rely on s.150 (4B) would be to give it a retrospective application which it is contended is not warranted.

Background facts

5 The first named respondent was appointed a director of the Company on 18th November, 1988. The third named respondent appears to have acted as a director at latest in 2000. The Company appears to have ceased trading on the 12th March, 2000. The Company's premises were sold in July, 2000. A petition was presented for the winding up of the Company on the 9th February, 2001. The winding up order was made and the Official Liquidator appointed on the 26th March, 2001.

6 The Company Law Enforcement Act, 2001 was passed on the 9th July, 2001. Section 41 of the Act of 2001 which inserted subs. (4B) into s.150 of the Act of 1990 was brought into force on the 1st March, 2002 by the Company Law Enforcement Act, 2001 (Commencement)...