Appeals court upholds winding up of Dublin flower business
Posted on 10th February 2022 at 20:48
Judge describes outcome at family company as ‘regrettable’
The Court of Appeal has upheld a High Court decision to direct the winding up of a company involved in flower-growing in north Dublin.
Mr Justice Maurice Collins said it was “regrettable” that an apparently successful family company, Lanskey Limited, should be wound up, but the parties have had years to resolve their difficulties to save or revive it.
He said it “may not be too late to do so even now”, and there is an option for the appellants to seek to purchase the business and/or assets of the company from the liquidator.
However, he dismissed their appeal after finding they had not identified any error in the order of the High Court judge.
Lanskey Limited was incorporated in 2012 for the purpose of acquiring “Blooming Baskets”, a flower-growing and plant basket business based on lands in Ballyboughal, said the judge. He said it appeared the business was generally “very successful and profitable”.
Catríona Byrne and her son Sean Byrne, who between them hold 60 per cent of the company’s shares, appealed the High Court’s order made in December 2020 directing the winding up of Lanskey Limited and the appointment of an independent liquidator.
Ms Byrne was a company secretary and former director, while Sean Byrne was a director prior to the winding up order.
Mr Justice Senan Allen had made the order on petition of Ms Byrne’s husband, Joseph Byrne, who was a company director and 40 per cent shareholder. Although there had been allegations and counter-allegations of oppression, the court then noted that the application had ultimately been argued on the basis that a winding up order was just and equitable, said Mr Justice Collins.
Joseph Byrne, who is in his 70s, had prior to this issued proceedings pursuant to section 212 of the Companies Act 2014. In October 2020, while the section 212 proceedings were pending, he issued a winding up petition on just and equitable grounds as well as the alleged failure to pay in excess of €300,000 which was the subject of a statutory demand issued that month, said the judge.
This sum included some €275,000 said to be due to Joseph Byrne by way of loans allegedly advanced by him to the company, as well as an amount of €11,000 in respect of allegedly outstanding salary and expenses.
Catríona and Sean Byrne argued in their appeal that the judge erred in excluding affidavits they wished to file and also submitted that the judge was wrong to make the winding up order.
Mr Justice Collins said he was “a little surprised” by the High Court’s refusal to allow the delivery of the affidavits having regard to the nature of the order sought and in circumstances where the petitioner had not identified a pressing urgency. However, that the judge may arguably have erred in the exercise of his discretion is not a sufficient basis for setting aside the order, said Mr Justice Collins.
Having seen the draft affidavits, the judge said the Court of Appeal does not believe they would have advanced the appellants’ position. Mr Justice Collins said it was “painfully evident” from all of the affidavit evidence that trust and confidence between the parties had “irretrievably broken down” as of December 2020. Endeavours to resolve this through mediation were unsuccessful, he noted.
While the appellants had submitted that the winding up of the company should be the “option of last resort”, the High Court was entitled to take the view that there was no adequate or satisfactory alternative remedy, said Mr Justice Collins. “Therefore, it was appropriate to reach for the ‘option of last resort’,” he said.
Mr Justice Seamus Noonan and Ms Justice Mary Faherty agreed with the judgment.
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