Waterside Management Company Limited v Brendan Kelly and Asta Kelly[1]
Since July 2011, lenders have lived with great uncertainty as to their statutory rights, particularly their right to obtain possession of a secured property by way of summary proceedings. This uncertainty arose as a result of the 2011 High Court decision in Start Mortgages Limited & Ors v Gunn and Ors[1] (the “Start Mortgages Case”).
In In re Kerr Aluminium Ltd (In Voluntary Liquidation) [2012] IEHC 386, the High Court dismissed an application by a liquidator that certain payments made by the company in favour of Bank of Ireland be deemed a fraudulent preference within the meaning of section 286 of the Companies Act 1963. The decision is a further reminder of the challenges liquidators face in establishing a dominant intention to prefer one creditor over another in fraudulent preference applications.
The high profile liquidation of Custom House Capital Limited (In Liquidation) continued in 2012. Following a successful exercise to reconcile and confirm the position regarding certain client assets, the liquidator of the company proposed applying a fee of 0.5% when transferring the assets to clients to cover the costs of the reconciliation exercise.
Amantiss Enterprises Limited and Wilbury Limited were placed into creditors’ voluntary liquidation in 1994. Following the appointment of a liquidator, proceedings were issued by the two companies, together with a third company, Framus Limited, against a multitude of defendants including CRH plc, Readymix plc and Kilsaran Concrete Products Limited, alleging breaches of competition law.
In two cases decided towards the end of 2012, the High Court applied reductions to the hourly charge out rate of staff members employed by the liquidator who had been promoted during the course of the liquidation.
The High Court has recently held that a former employee of a construction company, which was in liquidation, had no reasonable cause of action against the company’s insurer. This was despite the fact that he had obtained judgment for negligence against the employer and the insurance policy covered the employer for such a claim in negligence.
Recent attempts by Bank of Scotland plc to enforce its security over the company operating Foley’s Bar and O’Reilly’s Bar in Dublin city centre have been frustrated following various challenges in the High Court, culminating in the appointment of an examiner.
The Belohn Limited is the company which operates Foley’s Bar and the adjoining O’Reilly’s Bar. Its parent company is Merrow Limited. The two companies are reported to owe the bank in the region of €4 million and €1 million respectively.
Recent attempts by Bank of Scotland plc. to enforce its security over the company operating Foley’s Bar and O’Reilly’s Bar in Dublin city centre have been frustrated following various challenges in the High Court culminating in the appointment of an examiner.
Bank of Scotland plc. appointed a receiver to The Belohn Limited, the company operating the two bars, in October 2012. The Belohn Limited and its parent company, Merrow Limited, are reported to owe the bank in the region of €4 million and €1 million respectively.
A recent High Court decision has further demonstrated that failure to comply with the Code of Conduct of Mortgage Arrears (the “Code”) is likely to result in the court refusing to grant an order for possession.
Summary