Star Elm Frames Ltd and the Companies Act 2014 between Fitzpatrick and Gladney
| Jurisdiction | Ireland |
| Judge | McKechnie J.,O'Donnell J. |
| Judgment Date | 12 December 2019 |
| Neutral Citation | [2019] IESCDET 294 |
| Date | 12 December 2019 |
| Court | Supreme Court |
| Docket Number | S:AP:IE:2018:000083 A:AP:IE:2016:000412 2016 No. 242 COS |
[2019] IESCDET 294
THE SUPREME COURT
DETERMINATION
O'Donnell J.
McKechnie J.
Dunne J.
S:AP:IE:2018:000083
A:AP:IE:2016:000412
2016 No. 242 COS
IN THE MATTER OF STAR ELM FRAMES LIMITED AND IN THE MATTER OF THE COMPANIES ACT 2014
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 19th April, 2018 |
| DATE OF ORDER: 27th April, 2018 |
| DATE OF PERFECTION OF ORDER: 8th May, 2018 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 5th June, 2018 AND WAS IN TIME. |
This application seeks leave to appeal a decision of Peart J. (Irvine J. and Gilligan J. concurring) in the Court of Appeal, in which he affirmed a particular aspect of the order made by Humphreys J. in the High Court relating to costs. Peart J. delivered his judgment on the 19th April, 2018 and the resulting order was made on the 27th April, 2018 with the date of perfection being the 8th May, 2018.
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. In order for this Court to grant leave to appeal from a decision of the Court of Appeal, the Court must be satisfied that there are circumstances which have the presence of either or both of the following factors: i) that the decision sought to be appealed involves a matter of general public importance, or ii) the interests of justice.
The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
It should be noted that any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive Issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
Furthermore, the application for leave filed and the respondent's notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.
In that context it should be noted that the respondent does oppose the grant of leave and neither party has requested the making of a reference to the Court of Justice of the European Union under Article 267 TFEU.
By way of a determination dated the 28th January, 2019 ( [2019] IESCDET 14) it was decided that consideration of this application for leave would be adjourned, pending the outcome of this Court's decision in In the Matter of Ballyrider Limited (In Voluntary Liquidation), Revenue Commissioners v. Fitzpatrick in which judgment was delivered by McKechnie J. on the 31st July 2019 and the appeal dismissed. In light of this, the Court can now consider the application.
The applicant brings this application as the former liquidator of Star Elm Frames Limited (“Star Elm”) seeking to challenge the aspect of the Court of Appeal judgment which affirmed the costs order of the High Court, namely that the petitioner should recover his costs against the applicant personally and the company jointly and severally with the costs payable to the applicant for his work as liquidator being used to set off his liability for the costs ordered against him.
The background to this order is of some complexity and only a brief statement of the relevant facts is necessary here. The Revenue Commissioners brought a petition for the compulsory winding up of Star Elm on the 24th June, 2016, following a letter of demand being sent by them to Star Elm on the 9th March, 2016 informing them that the company owed €585,523.35, although it was later found that this figure had been an overstatement: by the time the petition came before the High Court, the amount owed was €566,930.
The company ceased trading on the 6th July, 2016 and a meeting of the creditors was held on the 18th July 2016, at which the applicant was appointed as liquidator in a creditors' voluntary winding up. At that meeting, the Revenue Commissioners sought to have Mr. Myles Kirby appointed as liquidator and it was on this basis that they continued with their petition in the High Court, in order to again seek to have Mr. Kirby appointed.
When the petition of the Revenue Commissioners came before the High Court though it was opposed by two directors of the company and one employee, none of the interested parties had given any formal notice of their...
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