Background
The Applicant, Mr Stephen Wallace was a UK based Liquidator of Carna Meats (UK) Limited (the “Company”). He claimed that his investigations into the Company’s affairs has been impeded by a lack of books and records. The Respondent, Mr George Wallace, was the Company’s former bookkeeper based in Ireland and was identified as holding all of the records of the Company. Despite a number requests from the Liquidator, Mr Wallace did not produce the documents.
Introduction
Summary judgment refers to a process where judgment is given in a case at an early stage, without a full litigation process and without the need for a full trial. It is confined to specific circumstances. A plaintiff can apply for summary judgment where a defendant has entered an appearance or delivered a defence. Summary judgment is most commonly granted where the defendant has no bona fide defence to the claim made by the plaintiff.
A company incorporated under the Companies Act has its own legal personality and can institute legal proceedings in its own name. However, difficulties can arise where proceedings are commenced on behalf of a company where this has not been properly authorised by the company. In addition, where a company is a party to proceedings, in the absence of certain limited exceptions, it must retain legal representation to act on its behalf.
Authority to Institute Proceedings
Directors of the Company
The recent Supreme Court decision in ACC Loan Management v Mark Rickard and Gerard Rickard has confirmed that a judgment creditor may apply to court to appoint a receiver by way of equitable execution over future entitlements due to a judgment debtor, such as the EU Basic Payment Scheme (“BPS”).
The 30th anniversary of the examinership process in Ireland is approaching and it’s a good time to reflect on the development of the process, where it stands now in Irish commercial life and the alternatives that exist.
Summary
This matter related to a High Court appeal brought by two high profile debtors against a Circuit Court order made in favour of Tanager Designated Activity Company (Tanager) which allowed Tanager to enforce an order for possession notwithstanding the fact that a protective certificate was in place in respect of the debtors.
The Personal Insolvency Act 2012 was enacted with the aim of throwing a lifeline to debtors, many of whom may be in arrears on mortgage loans secured against their principal private residence.
McCann FitzGerald acted for the Asia Pulp and Paper Group (“APP Group”) in the recent successful restructuring of over US$1 billion of debt.
In a first for the Irish restructuring market, the debt was restructured through a scheme of arrangement under section 676 of Part 11 of the Companies Act 2014 (“Part 11 Scheme of Arrangement”). On 23 October 2019, the US Bankruptcy Court granted recognition of the scheme under Chapter 15 of the US Bankruptcy Code.
In a recent case involving a company that owned and operated a nursing home (Melbourne Health Care Limited), the Examiner was unable to formulate proposals for a Scheme of Arrangement within the 100 days allowed to do so. At a late stage of the process it became apparent that the preferred investor could not satisfy its lender’s conditions precedent to draw down the financed element of the investment within the period of protection. As a result, the examiner applied to the High Court for directions.
The Supreme Court has just delivered a judgment confirming the entitlement of a judgment debtor to appoint a receiver by way of equitable execution.
The comprehensive judgment is a useful history lesson in the development and expansion of the right to appoint a receiver by way of equitable execution which derives from the old Judicator (Ireland) Act, 1877.
Background
Judgment was obtained by a bank in February 2011 against two borrowers in the amount of €1,064,747.