Middleview Ltd & Companies Acts [2015] IEHC 860 (21 December 2015)

Middleview Ltd & Companies Acts [2015] IEHC 860 (21 December 2015)

NAMA/NALM had agreed to fund the preparation of accounts for 2010 and 2011, and should bear those costs. For 2012 and 2013, there was no clear agreement, but the commercial logic and evidence suggest NAMA would likely have continued funding; however, fairness requires that the costs for those years be shared equally between NAMA/NALM and the directors (including Mr. Kelleher). This allocation best places the parties in the position they would have been in had the company not been struck off, as required by s.12B(3).

Citation
[2015] IEHC 860
Parties
Company (restored): Middleview Limited; Petitioner/creditor: National Asset Loan Management Ltd (NALM) / NAMA; Director/notice Party: Garrett Kelleher
Jurisdiction
Ireland
Judgment Date
21 December 2015
Procedural Posture
Restoration of Company to Register (companies Acts) / Post Restoration, Determination of Liability for Costs of Preparing and Filing Company Accounts
Outcome
Partially in favour of Mr. Kelleher and partially in favour of NAMA/NALM; costs allocation ordered.
Legal Topics
Restoration of Dissolved Company, Costs of Statutory Accounts Preparation, Interpretation of Companies (amendment) Act 1982 S.12 B, Directors' Duties, Secured Creditor Rights
Company Law Insolvency Law Restoration of Dissolved Company Costs of Statutory Accounts Preparation Interpretation of Companies (amendment) Act 1982 S.12 B Directors' Duties Secured Creditor Rights

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Parties

Middleview Limited

Company (restored)

National Asset Loan Management Ltd (NALM) / NAMA

Petitioner/creditor

Garrett Kelleher

Director/notice Party

Procedural Posture

Restoration of Company to Register (companies Acts) / Post Restoration, Determination of Liability for Costs of Preparing and Filing Company Accounts

Legal Issues

  1. 1 Who should bear the costs of preparing and filing outstanding company accounts when a company is restored to the register under s.12B of the Companies (Amendment) Act 1982?
  2. 2 How should the court exercise its discretion under s.12B(3) to place parties in the same position as nearly as may be as if the company had not been struck off?

Ratio Decidendi

NAMA/NALM had agreed to fund the preparation of accounts for 2010 and 2011, and should bear those costs. For 2012 and 2013, there was no clear agreement, but the commercial logic and evidence suggest NAMA would likely have continued funding; however, fairness requires that the costs for those years be shared equally between NAMA/NALM and the directors (including Mr. Kelleher). This allocation best places the parties in the position they would have been in had the company not been struck off, as required by s.12B(3).

Court Disposition

Partially in favour of Mr. Kelleher and partially in favour of NAMA/NALM; costs allocation ordered.

Orders

  • NAMA/NALM to bear the costs of preparing audited accounts for the years ended 2010 and 2011.
  • NAMA/NALM and the directors (including Mr. Kelleher) to bear the costs of preparing audited accounts for the years ended 2012 and 2013 on a 50/50 basis.