O'Connors Nenagh Shopping Centre (in liquidation) -v- Companies Acts [2011] IEHC 508 (14 December 2011)

O'Connors Nenagh Shopping Centre (in liquidation) -v- Companies Acts [2011] IEHC 508 (14 December 2011)

The applicant failed to prove that the dominant intention of the company in entering the mortgage was to prefer the bank over other creditors; the evidence showed the directors acted to keep the company trading and pursue restructuring, not to prefer the bank.

Citation
[2011] IEHC 508
Parties
Applicant/liquidator: Anthony Fitzpatrick; Respondent/director: Joseph O’Connor; Respondent/director: Donal O’Connor; Respondent/creditor: The Governor and Company of the Bank of Ireland; Respondent: Kieran Wallace
Jurisdiction
Ireland
Judgment Date
14 December 2011
Procedural Posture
Company Law Application / Judgment on Application for Declaration of Fraudulent Preference
Outcome
Application refused
Legal Topics
Fraudulent Preference, Liquidation, Secured Creditor, Dominant Intention, Section 286 Companies Act
Company Law Insolvency Fraudulent Preference Liquidation Secured Creditor Dominant Intention Section 286 Companies Act

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Parties

Anthony Fitzpatrick

Applicant/liquidator

Joseph O’Connor

Respondent/director

Donal O’Connor

Respondent/director

The Governor and Company of the Bank of Ireland

Respondent/creditor

Kieran Wallace

Respondent

Procedural Posture

Company Law Application / Judgment on Application for Declaration of Fraudulent Preference

Legal Issues

  1. 1 Whether the mortgage constituted a fraudulent preference under s.286 Companies Act 1963
  2. 2 Whether the dominant intention of the company was to prefer the bank over other creditors

Ratio Decidendi

The applicant failed to prove that the dominant intention of the company in entering the mortgage was to prefer the bank over other creditors; the evidence showed the directors acted to keep the company trading and pursue restructuring, not to prefer the bank.

Court Disposition

Application refused

Orders

  • Declaration that the mortgage constituted a fraudulent preference is not granted