Insolvency practitioners are routinely asked to adjudicate on claims to retention of title of goods supplied. This task often involves an analysis of whether the goods in question have become fixed to land, irreversibly mixed with other goods or whether they remain as identifiable items.

In the recent case of Re Moormac Developments Limited (in receivership)[1], the High Court gave further clarity to this area of the law.

A number of recent High Court decisions suggest an increase in the number of interlocutory applications being brought by receivers seeking to obtain vacant possession of the properties over which they have been appointed.

This update focusses upon two recent High Court decisions dealing with (respectively) the ability of the court to retrospectively extend court-appointed receiverships, and the issue of whether COMI had shifted to England for a German national seeking bankruptcy here.

Extension of court-appointed receiverships

The case of Bank of Ireland v (1) Edeneast (2) Cosgrove and (3) Maguire (17/09/2013) concerned an application by the bank to retrospectively continue and extend the appointment of a courtappointed receiver.

On 23 August 2013, the High Court granted the petition of Bank of Ireland to have Brian O’Donnell and his wife, Mary Patricia O’Donnell adjudicated bankrupt.  One of the issues before the Court was the appropriate date for determining the centre of main interests (COMI) of a debtor.  Two possibilities were put forward: (i) the date of presentation of the bankruptcy petition to the Examiner’s Office of the High Court; or (ii) the date of the hearing of the application by the High Court.

The Courts and Civil Law (Miscellaneous Provisions) Act 2013 was signed into law by the President on 24 July 2013.  While certain sections of the Act commenced immediately on its signing into law, other provisions have yet to be commenced by ministerial order.

A summary of the key changes brought about by the Act are set out below.

Increase in the Monetary Jurisdiction of District and Circuit Courts

The Act increases the monetary jurisdiction of:

An order providing for the commencement of certain provisions of the Personal Insolvency Act 2012 brings the following three new debt settlement arrangements into operation with effect from 31 July 2013:

There have been a number of recent cases where companies have sought a reduction in their share capital by way of a High Court sanctioned process. One such case involving Aer Lingus raised interesting issues about the status of pension fund shortfalls as liabilities of the employer company as Emmet Scully and Jennifer McGuire report.

In a reduction of capital application, the High Court’s primary concern is whether the company’s creditors would be prejudiced by the reduction of capital.

The High Court has made an order disqualifying the two directors of Mossway Limited (In Liquidation) for a period of 12 months.

Background

The principal business of the company had been the provision of haulage services with a warehousing and distribution facility. On 3 June 2011, the Revenue Commissioners presented a petition to wind up the company on the basis that it was unable to pay its debts as they fell due. The Court made the order sought and appointed an Official Liquidator.

The Personal Insolvency Act 2012 (the “PI Act”) was signed into law on 26 December 2012 and introduces significant changes to the personal insolvency regime in Ireland, as described in our previous client briefing concerning the PI Act (issued in December 2012 and available on our website). All provisions of the PI Act, other than Part 4 which relates to bankruptcy, have now been commenced and it is expected that debtors will shortly be able to avail of the new insolvency measures.

It has been suggested that Ireland improperly transposed the Employer’s Insolvency Directive into Irish Law by adopting a definition of “insolvency” which requires an actual winding up order (or a resolution of voluntary winding up to be passed) before an employee can have access to the Insolvency Fund, a Government payment scheme which provides for the payment of certain employee entitlements, in the event of the insolvency of their employer.