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Edenfell Holdings Ltd., Re [1997] IEHC 138; [1999] 1 IR 443 (30th July, 1997)
THE
HIGH COURT
1995
/ 220 COS
IN
THE MATTER EDENFELL HOLDINGS LIMITED (IN LIQUIDATION AND IN RECEIVERSHIP) AND
IN
THE MATTER OF THE COMPANIES ACTS 1963 TO 1990 AND
IN
THE MATTER OF AN APPLICATION PURSUANT TO SECTION 316 OF THE COMPANIES ACT, 1963
AS AMENDED
Judgment
of Miss Justice Laffoy delivered on the 30th day of July 1997
THE
FACTUAL BACKGROUND
1. The
factual background to the two applications to which this judgment relates is as
follows:-
(1) By
a debenture dated the 10th day of September 1992 made between Edenfell Holdings
Limited ("the Company") of the one part and Anglo Irish Bank Corporation Plc
("the Bank") of the other part ("the Debenture"), the Company charged in favour
of the Bank inter alia -
(i) the
lands at Carrigaline registered on folios 48205F and 53927F of the Register of
County Cork,
(ii) as
a first fixed charge all other (if any) freehold and leasehold property of the
Company then vested in it, and
(iii) by
way of first floating charge all other the undertaking, assets and property of
the company whatsoever and wheresoever, both present and future,
to
secure all sums due by the Company to the Bank.
(2) On
25th May, 1995, at a time when there was due by the Company to the Bank on foot
of the Debenture the sum of £929,841.40, the Bank appointed William A.
Lacey ("the Receiver"), Chartered Accountant, to be Receiver of all the assets
of the Company pursuant to the Debenture.
(3) Prior
to the appointment of the Receiver, on 12th May, 1995, a petition to wind up
the Company had been filed by a creditor of the Company. On 19th June, 1995,
an Order was made by this Court directing that the Company be wound up by the
Court and that Sean Flynn ("the Liquidator"), Chartered Accountant, be
appointed Official Liquidator for the purposes of such winding up.
(4) In
November 1995, Stormdust Limited ("Stormdust") applied to the Court seeking
liberty to issue proceedings claiming specific performance of an alleged
agreement by the Company to sell to Stormdust the lands registered on folios
48205F and 53927F for the price of £920,000. At the same time, the
Receiver applied to Court for an Order under
Section 218 of the
Companies Act,
1963 declaring that the alleged agreement was void. By Order of this Court
made on 20th November, 1995 by Murphy J., it was ordered that an issue be tried
between Stormdust, as plaintiff, and the Company, acting by the Receiver, as
defendant, as to whether Stormdust was entitled to a declaration that the
alleged agreement alleged to have been made on 8th May, 1995 was a valid and
binding contract and, if necessary, an Order for the validation of the
agreement pursuant to
Section 218 of the 1963 Act. Directions were given as to
pleadings and discovery.
(5) The
issue was tried by McCracken J. He delivered judgment on 20th June, 1996 and
in his judgment he found that Stormdust did not have any enforceable agreement
to purchase the lands from the Company. Moreover, he indicated his views on
the application under
Section 218, had there been an enforceable agreement on
the terms alleged by Stormdust, although that issue did not arise having regard
to his finding that there was no enforceable agreement. He indicated that he
would have refused to sanction the sale even if there was an enforceable
agreement. By Order dated 20th June, 1996, the relief sought by Stormdust in
the issue was refused and it was ordered that the Receiver should recover
against Stormdust his costs of the proceedings when taxed and ascertained.
(6) Stormdust
appealed to the Supreme Court against the judgment and Order of McCracken J.
On 10th October, 1996, the Receiver issued a Notice of Motion returnable for
18th October, 1996 in the Supreme Court seeking various reliefs, including an
Order to strike out the appeal for want of prosecution or, alternatively, an
Order that the appeal be given priority in listing for hearing. At that stage,
the debt due to the Bank was in excess of £1.1 million and interest was
accruing weekly at the rate of £2,849.98. In the Affidavit to ground the
application to the Supreme Court, the Receiver's solicitor, Mark Bennett,
averred that Patrick Chesser, one of the two auctioneers retained by the
Receiver to market the lands, had received an offer of £1.6 million and
the other auctioneer, Frank Ryan of Colliers Jackson Stops, had also received
an offer of £1.6 million for the lands. The Motion to dismiss was
adjourned until 1st November, 1996, and then for a further two weeks, Stormdust
having undertaken to lodge books of appeal within that period.
(7) On
13th November, 1996, another prospective purchaser came on the scene, Astra
Construction Services Limited ("Astra") which was represented by a Cork
auctioneer, Mr. Tom O'Driscoll. Astra offered to enter into an unconditional
contract with the Receiver to purchase the lands at the price of £1.5
million, the sale to be closed on 19th December, 1996 and to pay Stormdust the
sum of £100,000 to procure the withdrawal of the appeal to the Supreme
Court. The Receiver was advised by Mr. Chesser and Mr. Ryan to accept the
offer which, initially, was only open for acceptance until Friday, the 22nd
November, 1996, which date was subsequently extended to 25th November, 1996.
(8) On
18th November, 1996, the Receiver's solicitor, on his instructions, sent
contracts to Astra's solicitors with a covering letter which stated that the
Receiver would not sign the contracts until he had first invited all other
interested parties to better Astra's offer and unless they had all failed to do
so. On 21st November, 1996, the Receiver's solicitors notified the
Liquidator's solicitors by fax that the contracts had been sent out and, if no
better offer was received, it was expected that the Receiver would sign the
contracts on 25th November but that he would not sign unless Astra procured the
withdrawal of the Stormdust appeal.
(9) On
21st November, 1996, Mr. Ryan sent a notice by fax to 15 parties advising that
the Receiver had an unconditional proposal of £1.5 million which, if
accepted, was without any liability to the Receiver in respect of the
outstanding Supreme Court appeal. The matter was receiving serious
consideration and, if the party to whom the notice was sent wished to submit an
offer or a revised offer for consideration, Mr. Ryan's office should be
contacted forthwith. On 20th and 21st November, 1996, Mr. Chesser contacted
all of the parties he knew of who had evinced a serious interest in acquiring
the lands. A Limerick property developer contacted the Receiver directly but
no offer materialised from that contact.
(10) The
only responses which Mr. Chesser's and Mr. Ryan's contacts elicited were the
following:-
(a) A
letter received by Mr. Ryan by fax on the morning of 25th November, 1996 from
Martin Sheehan & Company, Solicitors, which was headed "
subject
to contract/contract denied
"
and "
without
prejudice
",
in which it was stated that the previous offer of £1.6 million made by
their unnamed client was confirmed "
on
the same basis as the offer from the other party
"
but subject to their client being furnished with copies of all of the relevant
legal documentation in respect of the appeal including all relevant counsels
and other opinions and subject also to their client "
being
satisfied with the contents and opinions in such documentation
".
Messrs. Sheehan's client was Anglo Eire Property Company Limited ("Anglo
Eire"), which had been interested in the lands even before the receivership and
which in September 1996 had made an offer of £1.6 million for the lands on
the basis of a successful outcome to the Supreme Court appeal, which I
understand to mean on the basis that the Supreme Court appeal would be dismissed.
(b) A
letter received by the Receiver's solicitors by fax at 12.20 p.m. on 25th
November, 1996 from Deane & Partners, Solicitors for Roedean Homes Limited,
in which the writer stated that Mr. Ryan had indicated that he might contact
the Receiver's solicitors "
to
discuss the title and the context of the proposed sale
"
and queried whether it would be possible for the writer "
to
look at your file or at a selection of papers therein so as to fully advise our
client
".
(11) On
25th November, 1996, the Receiver signed the contracts which had been sent to
Astra on 18th November, 1996 and which had previously been executed on behalf
of Astra and dated 24th November, 1996, in Limerick. Simultaneously, Mr.
O'Driscoll, Astra's agent, handed over a sum of £100,000 to Stormdust's
solicitors in Dublin and received a receipt acknowledging that the sum was "
in
full and final settlement of all actions, claims, costs and expenses whatsoever
in relation to the Company and the Company's lands and in particular the
proceedings and the appeal to the Supreme Court
".
Stormdust's solicitors also furnished a letter addressed to the Registrar of
the Supreme Court, the solicitors for the Receiver and the solicitors for the
Liquidator withdrawing Stormdust's Notice of Appeal.
(12) On
29th November, 1996, the Supreme Court made an Order striking out the appeal
with no Order as to costs.
(13) With
their letter of 21st November, 1996, the Receiver's solicitor had sent to the
Liquidator's solicitors "
a
very rough sketch of the financial position
"
on the assumption that the lands would be sold for £1.5 million. This
revealed that, after providing for various claims against the proceeds of sale,
including the Bank's debt and sums aggregating £105,000 in respect of the
costs and expenses in connection with the Stormdust proceedings, a sum of
£45,000 would be available to the Liquidator. The Liquidator's position
as of 25th November, 1996, as set out in a letter of that date from his
solicitors to the Receiver's solicitors, was that he did not have sufficient
information to consider whether the proposed transaction with Astra would
properly discharge the Receiver's duty under Section 316A of the
Companies Act,
1963 and he sought certain information.
THE
APPLICATIONS
2. Two
applications are before the Court.
3. The
first is the Receiver's Motion under Section 316 of the Companies Act, 1963
("the 1963 Act") for directions in relation to the contract with Astra seeking,
if necessary,
(a) an
Order directing the Receiver to complete the contract and
(b) an
Order directing the Liquidator to join in the completion of the contract and to
convey to Astra such interest as he may retain in a certain unregistered strip
of land adjoining the lands registered on the two folios referred to above.
4. At
the time this Motion was initiated, it was perceived that the Receiver, on his
own, could not give Astra title to the unregistered strip, which was included
in the sale to Astra. Since the Receiver's application was initiated, the
Receiver has been advised by Senior Counsel that he has power under the
Debenture to sell the unregistered strip to Astra and to make title thereto
without the concurrence of the Liquidator. Moreover, in an Affidavit sworn on
20th June, 1997, the Managing Director of Astra has averred that, even if the
Receiver cannot make title to the unregistered strip, he is anxious to proceed
with the transaction and, if necessary, he will enter into negotiations with
the Liquidator to acquire to the unregistered strip. In the light of these
developments, at the hearing of the Receiver's application, Counsel for the
Receiver indicated that all the Receiver requires is an Order directing the
Liquidator to cooperate with the Receiver in completing the sale to convey the
unregistered strip, if the Receiver requests such cooperation.
5. The
second application is brought by Denis Barrett, who was a director of and a 25%
shareholder in the Company, under Section 316 of the 1963 Act seeking
directions. A number of specific reliefs are claimed which, in essence, seek -
(i) an
Order directing the Receiver not to complete the contract with Astra;
(ii) an
Order directing the manner and method of marketing or reselling the Carrigaline
lands; and
(iii) directions
as to whether the Receiver is entitled to deduct the sum of £105,000
representing the costs of the Stormdust proceedings from the proceeds of the
sale to Astra or of any other sale.
THE
STANCE OF THE NOTICE PARTIES
6. The
attitude evinced by the various Notice Parties, who have been put on notice of
the two applications, in the Affidavits filed by them and the stance they
adopted at the hearing of the applications is as follows:-
The
Liquidator
7. It
is clear from an Affidavit sworn by the Liquidator on 13th May, 1997 that he is
acutely aware of the commercial realities of the entire matter. Nonetheless,
in that Affidavit, he criticised the Receiver's handling of the sale and, in
particular, the stringent time limits he imposed on interested parties other
than Astra and the lack of clarity of the notice sent to and the paucity of
information given to other interested parties. He also criticised the
Receiver's tardiness in relation to the Stormdust appeal and in bringing his
own application. He disclosed in an Affidavit sworn on 17th June, 1997 that
the amount due and owing to the unsecured creditors of the Company at this time
is £352,523. The stance adopted by the Liquidator before the hearing was
that he was not prepared to consent to the sale to Astra unless this Court is
satisfied, having reviewed the evidence on Affidavit, that the sale complies
with Section 316A of the 1963 Act. At the hearing, when on all the Affidavit
evidence was in place, it was argued on his behalf that, if to complete the
contract would constitute a breach of the Receiver's duty of care, the Court
has power, and even a duty, to intervene and prevent completion of the sale.
It was further argued that the Receiver was in breach of his duty in being
involved in the arrangement whereby £100,000 was paid to Stormdust to buy
off the appeal and no provision was made to recover the costs of the Stormdust
proceedings from Stormdust. It was submitted that the Court should direct the
Receiver not to complete the sale to Astra and that, having heard further
submissions as to the mode of a resale, the Court should direct the form of the
resale.
Mr.
Barrett
8. Mr.
Barrett has filed a long Affidavit, sworn on 7th May, 1997, in response to the
Receiver's application and to ground his own application, in which he is highly
critical of the conduct of the sale by the Receiver and the disposal of
Stormdust's appeal. Mr. Barrett averred in his Affidavit that he is a
guarantor of the Company's indebtedness to the Bank and of "
£135,000
capital to unsecured creditors together with interest thereon
".
Astra
9. As
I have already indicated, in the Affidavit of its Managing Director, Stephen
McCarthy, Astra has evinced an eagerness to complete the sale and a willingness
to negotiate with the Liquidator for the unregistered strip, if he is
constrained to do so. Astra's Counsel submitted that Astra is an innocent
party who contracted with the Receiver in good faith and has part performed its
agreement with the Receiver in paying £100,000 to Stormdust to buy off the
appeal, which sum, in all likelihood, is irrecoverable. If the Receiver is
directed not to complete the sale to Astra, Astra is facing an almost
incalculable loss - the loss of the opportunity to develop the lands.
Anglo
Eire
10. In
an Affidavit sworn by Denis O'Sullivan, a director and the principal
shareholder in Anglo Eire, the conduct of the sale by the Receiver is
criticised, It is averred that Anglo Eire made an offer for the lands as long
ago as March 1996 and, at all times, had a genuine and real interest in
purchasing the lands. By a letter dated 18th December, 1996, from its
solicitors, Messrs. Ronan Daly Jermyn, to the Liquidator's solicitors, Anglo
Eire offered the sum of £1.8 million for the Carrigaline lands "
subject
to title and on the basis that the Court proceedings affecting the lands have
been discharged
".
This letter was headed "
subject
to contract / contract denied
".
At the hearing, Counsel for Anglo Eire contended that the provisions of
Section 316A are mandatory and that the Court could not make an Order which
would have the effect of condoning a breach of Section 316A.
Denis
O'Brien
11. Mr.
O'Brien, jointly with his wife, Margaret (otherwise Maeve) O'Brien, owned 49%
of the issued shared capital of the Company. He filed a long Affidavit sworn
on 23rd June, 1997. The overall thrust of that Affidavit and of the
submissions made on his behalf by Counsel is that the transaction whereby the
Company acquired the registered lands at Carrigaline from Mr. and Mrs. O'Brien,
in whose names the title to the lands was previously vested, was in breach of
Section 60 of the 1963 Act, that the Bank's Debenture is invalid, that the Bank
had no right or power to appoint the Receiver and that the Receiver has no
right to sell the lands. As I made clear at the hearing of the applications,
the validity of the Debenture and of the Receiver's appointment cannot be
impugned on these applications, to which the Bank is not a notice party.
Counsel for the Liquidator intimated that the Liquidator cannot, on the basis
of the averments made by Mr. O'Brien, form a view as to whether there was a
breach of Section 60, but that the Liquidator will look at any evidence which
is submitted to him on this issue and will take appropriate steps. Counsel for
Mr. O'Brien supported the objections of the other Notice Parties to the Court
sanctioning the completion of the sale to Astra.
Margaret
(otherwise Maeve) O'Brien
12. In
an Affidavit sworn on 21st July, 1997, Mrs. O'Brien criticised the Receiver's
involvement in the transaction whereby £100,000 was paid to Stormdust to
buy off the appeal and the conduct of the sale by the Receiver. It was
submitted on her behalf that the Receiver did not achieve the best price for
the Carrigaline lands and that he was at fault not selling by tender or by open
advertisement.
THE
LAW
Section
316(1) of the 1963 Act provides that where a receiver of the property of a
company is appointed under the powers contained in any instrument, any of the
persons mentioned may apply to the Court for directions in relation to any
matter in connection with the performance or otherwise by the receiver of his
functions. The persons who are mentioned include the receiver and any officer
or member of the company. It is acknowledged by the Receiver that Mr. Barrett
is entitled to invoke
Section 316(1) and to seek directions.
"A
receiver, in selling property of a company, shall exercise all reasonable care
to obtain the best price reasonably obtainable for the property as at the time
of the sale."
14. That
provision is merely a statutory restatement of the common law duty of care owed
by a receiver in relation to the sale of property charged by the debenture
under which he is appointed.
15. There
are a number of situations analogous to the situation of a receiver selling
property charged by a debenture on foot of the powers contained in the
debenture. One is the situation of a mortgagee selling as such and his
situation was considered by the Supreme Court in
Holohan
-v- Friends Provident and Century Life Office
[1966] I.R. 1. In that case, the defendant mortgagee, in exercise of its power
of sale as legal mortgagee, entered into a contract for the sale to a Mr.
Sweeney of certain property of which the plaintiff was mortgagor. In
negotiating the sale and the purchase price to be paid, the defendant offered
the premises for sale on an investment basis without attempting to disturb the
occupying tenants and refused to consider an alternative mode of offering the
premises for sale, notwithstanding the advices of auctioneers and house agents
that a sale with vacant possession would realise an enhanced purchase price.
The plaintiff mortgagor sought an order restraining the defendant from
completing the sale. In his judgment, O'Dalaigh C.J. stated at page 21 that
the test to be applied was whether the defendant acted as a reasonable man
would in selling the plaintiff's property and he held that it did not. The
significant point for present purposes which emerges from the judgment of
O'Dalaigh C.J. is that an issue arose after the appeal to the Supreme Court had
been argued but before judgment as to whether, in the absence of Mr. Sweeney,
the purchaser under the contract, as a party to the proceedings and in the
light of the provisions of Section 21(2) of the Conveyancing Act, 1881 and
Section 5(1) of the Conveyancing Act, 1911, the plaintiff's remedy, if any,
should lie in damages only. The matter was relisted for argument on this point
before judgment was given. In his judgment, O'Dalaigh C.J. said at page 26:-
"...
I am satisfied, firstly, that Section 21 subsection (2) cannot have any
application until a conveyance has been made. In this case, no conveyance has
been made. And, secondly, as to Section 5 subsection (1) of the Act of 1911, I
am also satisfied that a purchaser who in fact has notice, actual or
constructive, of an irregularity in the exercise of the power of sale before
completion by conveyance could not get a good title. No question of a remedy
in damages between the parties before the Court can arise: the contract of sale
is either properly made or it is not. If not, then it cannot be permitted to
be completed and the appropriate remedy is an injunction. Whatever Mr.
Sweeney's rights against the mortgagee's may be, they are not for consideration
now".
16. It
was submitted by Counsel on behalf of the Receiver that, even if the sale to
Astra was not at "
the
best price reasonably obtainable
"
as at 25th November, 1996, the appropriate remedy to be pursued by any person
who was owed a duty of care by the Receiver is an action for damages. The
Receiver does not deny that a duty of care was owed by him to Mr. Barrett. Mr.
Barrett can be compensated for any loss incurred by reason of the sale to Astra
by an award for damages and, in fact, Mr. Barrett has already instituted
proceedings in this Court (1997 No. 6128p) on 25th May, 1997 claiming a
declaration that the contract with Astra was in breach of the Receiver's duty
of care to him and damages. Similarly, the remedy of the Liquidator for any
breach of Section 316A is an action for damages. It was contended that none of
the Notice Parties is entitled to upset the contract for sale with Astra, which
the Receiver was entitled to enter into under his powers in the Debenture.
That contract is binding on the Receiver and must be completed and Notice
Parties, if they so wish, can bring an action for damages against the Receiver.
17. By
virtue of Section 316A, the Receiver was under a duty to exercise all
reasonable care to obtain the best price reasonably obtainable for the
Carrigaline lands as at 25th November, 1996. If he was in breach of that duty
in entering into the contract for sale with Astra, then on the authority of the
judgment of the Supreme Court in
Holohan
-v- Friends Provident and Century Life Office
,
that contract was not properly made and the completion of it must be restrained
by injunction.
APPLICATION
OF THE LAW TO THE FACTS
18. In
his grounding Affidavit, the Receiver has averred that he was advised by the
auctioneers and estate agents he had retained, Mr. Ryan and Mr. Chesser, to
sell to Astra and that he took the following factors into account:-
(a) that
the Supreme Court appeal, and the doubt and uncertainty caused by it, would be
removed forthwith;
(b) that
negotiations with other interested parties up to then had all been on the basis
that the purchaser would apply for planning permission and would require a
closing date some six months later;
(c) that
the monthly accrual of interest at that time was approximately £12,000 and
that any delay in closing would be to the detriment of other creditors, secured
and unsecured;
(d) that
he believed that Astra would not wait beyond 25th November and that he had no
knowledge what the outcome of negotiations with other parties would then be;
(e) that
the indications from other interested parties did not contain the element of
certainty involved in the offer from Astra; and
(f) that
at the hearing of the Stormdust proceedings in the High Court in April 1996,
Stormdust had adduced evidence that £920,000 was a reasonable price for
the Carrigaline lands in May 1995 and that, at that time, the highest value the
Receiver's own valuers, Mr. Ryan and Mr. Chesser, put on the property was
£1.2 million.
19. When
the Astra offer materialised in mid-November 1996, the Receiver's joint agents
had been endeavouring to sell the Carrigaline lands for some time. In fact,
Mr. Ryan had been in negotiations with Anglo Eire for over six months. It is
true that the other interested parties were given rather peremptory notice on
21st November, 1996 to make their final offer. Nonetheless, in my view, the
Receiver could not be regarded as acting unreasonably in not giving more time
and in not waiting longer to see if further offers were forthcoming, given the
time limit imposed by Astra for acceptance of its offer, assuming the Astra
offer was an offer which could properly be accepted by him. The Receiver had
to have regard to commercial realities and, in particular, to the fact that if
he allowed the Astra offer to lapse, he might have had to wait some time, while
interest was accruing on the Bank's debt, before getting any further offer
which matched or bettered the offers he already had, including Astra's offer.
20. The
issue I have to decide is whether, on evidence adduced, the Receiver exercised
all reasonable care to obtain the best price reasonably obtainable for the
Carrigaline lands as at 25th November, 1996. The fact that Anglo Eire made an
offer of £1.8 million, subject to contract, on 18th December, 1996 cannot
influence that decision. There was an offer from Anglo Eire before the
Receiver on the relevant date, 25th November, 1996, and it must be assumed that
that offer reflected the "best price" which Anglo Eire was prepared to pay for
the Carrigaline lands at that date.
21. A
comparison of the offers which the Receiver had on 25th November, 1996 reveals
the following:-
(a) The
Astra offer was an unconditional offer in that the contracts produced by the
Receiver had been executed on behalf of Astra. It provided for a purchase
price of £1.5 million and it provided for a closing date of 19th December,
1996.
(b) The
offer from Anglo Eire was a "subject to contract" offer, which meant that the
offeror was not bound until a contract was concluded. It stipulated a price of
£1.6 million "
on
the same basis as the offer from the other party
",
which I interpret as an intention on the part of Anglo Eire to purchase subject
to the Stormdust appeal but subject to the further condition stipulated in the
offer. That condition was that Anglo Eire must be satisfied with the contents
of the documents and opinions in relation to the appeal. This was an extremely
vague stipulation and it is not the type of stipulation which, in my view, a
reasonable vendor could be expected to accept. No closing date was mentioned
in the Anglo Eire offer.
22. The
two offers, in my view, are no more comparable than "apples and oranges".
Given the dual conditional nature of the Anglo Eire offer, it would have been
difficult, if not possible, for the Receiver to evaluate its worth and I do not
think the Receiver could be regarded as being unreasonable in concluding that
the Astra offer was the more attractive offer of the two.
23. But
that is not the end of the matter. It is quite clear that Astra was a very
eager purchaser and that the Carrigaline lands were worth £1.6 million to
Astra, which was the aggregate amount which Astra was prepared to outlay to get
the lands, albeit free from the encumbrance created by the Stormdust appeal.
There is no evidence whatsoever that the Receiver gave any consideration to
whether paying £100,000 out of the £1.6 million, which was available
to acquire the lands, to Stormdust to procure the withdrawal of the appeal at
that juncture was a reasonable and prudent course. While it is undoubtedly the
case that the appeal gave rise to a number of imponderables -
(i) whether
the appeal would be successful, the prevailing view now being that there was an
overwhelming probability that it would not,
(ii) how
long it would take for the appeal to be determined by the Supreme Court and, in
particular, would it take the eight months it would take to accumulate
£100,000 of interest charges under the Debenture, and
(iii) what
costs and outlay would be incurred in responding to the appeal, and, if the
appeal was unsuccessful, were these costs likely to be recoverable from
Stormdust,
the
Receiver should have considered all of these matters before becoming involved
in an arrangement under which £100,000, which would otherwise have been
available to the Company as part of the price of the land, was paid to
Stormdust. Moreover, given the limited nature of the authority conferred by
the Order of 20th November, 1995, the Receiver should have considered applying
to Court on notice to the Liquidator for leave to enter into the arrangement
before committing himself to it. There was £1.6 million available for the
acquisition of the lands free from the appeal on 25th November, 1996. Under
the arrangement entered into by the Receiver, the Company would only get
£1.5 million for the land. I am not satisfied, on the evidence, that the
Receiver exercised all reasonable care to free the lands of the encumbrance
which the appeal constituted and to obtain for the Company the best price
reasonably obtainable for the lands as of 25th November, 1996.
DECISION
24. Accordingly,
I will direct the Receiver not to complete the contract with Astra and to
return to Astra the deposit paid by it thereunder. I will hear submissions
from the Receiver and the Liquidator as to the mode of resale.
25. I
am not deciding the issue raised by Mr. Barrett as to whether the Receiver is
entitled to deduct £105,000 in respect of the costs of the Stormdust
proceedings from the proceeds of any sale, as I consider that this aspect of
the matter was not sufficiently argued before me. I will adjourn this issue
generally with liberty to re-enter.
© 1997 Irish High Court
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