Dolliver (Andrew) and Charleton (Joseph) (as joint administrators of Cloghogue Enterprises Limited, in Administration) v O'Callaghan (Eileen), SPOC (NI) Limited and Murphy (Derek)
| Jurisdiction | Northern Ireland |
| Judge | Horner J |
| Judgment Date | 29 November 2017 |
| Neutral Citation | [2017] NICh 27 |
| Court | Chancery Division (Northern Ireland) |
| Date | 29 November 2017 |
1
Neutral Citation No: [2017] NICh 27
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: HOR10405
Delivered: 29/11/2017
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
CHANCERY DIVISION
________
Between:
ANDREW DOLLIVER AND JOSEPH CHARLETON
(AS JOINT ADMINISTRATORS OF CLOGHOGUE ENTERPRISES LIMITED,
IN ADMINISTRATION)
and
EILEEN O’CALLAGHAN
First-named Defendant;
and
SPOC (NI) LIMITED
Second-named Defendant;
and
DEREK MURPHY
Third-named Defendant.
________
HORNER J
A. INTRODUCTION
[1] The plaintiffs claim to be the joint administrators of Cloghogue Enterprises
Limited (“the Company”) lawfully appointed by Clipper Holdings II SARL
(“Clipper”).
[2] Clipper is the successor in title, it claims, to the AIB Group (UK) Plc (“AIB”)
and claims to have a Qualifying Floating Charge (“QFC”) over the Company’s
property following a Global Deed of Transfer (“the Deed”) of 29 January 2016.
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[3] The plaintiffs made an application for summary judgment in respect of two
transactions by the Company to the second defendant, which they claim were an
undervalue, namely:
(i) The transfer of August 2015 of Folio AR109171 Co Antrim to the second
defendant and
(ii) The March 2016 lease to the second defendant in respect of Unit 1 of the
Cloghogue Business Park (“the Business Park”) dated 29 March 2016.
[4] The application for summary judgment was heard on 20, 26 and 27 June and I
delivered an ex tempore judgment on 29 June 2012 in favour of the plaintiffs setting
aside both transactions as being at an under value pursuant to the Insolvency (NI)
Order 1989.
[5] Following the ex tempore judgment the second defendants’ solicitors wrote
on 4 July 2017 challenging the appointment of the plaintiffs as administrators. At
that time the Order had not been finalised and had been neither signed nor sealed.
The court had asked to hear further submissions in respect of the consideration paid
by the second defendant and also on the issue of costs. The court decided that in
accordance with Order 1 Rule 1(A) that the best course was to determine the issue of
whether the appointment of the plaintiffs was lawful and valid before taking any
further steps. It is true to say that the first and second defendant had never admitted
the plaintiffs’ title. If the title issue is not resolved at the outset, then there is a risk of
inconsistent decisions in respect of the property, including any application being
made for possession of the Business Park. Further, as part of the challenge was to
the efficacy of the floating charge, it was important pursuant to paragraph 17 of
Schedule B1 that the floating charge should be enforceable. Also the notice of
appointment made under paragraph 19 of Schedule B1 states that there must be a
statutory declaration by or on behalf of the person who makes the appointment that
“the person is a holder of a qualifying floating charge in respect of the company’s
property”. However, even though this challenge was made very late in the day, it
seemed to me that it was essential that it be addressed. Any unfairness arising from
the tardiness of the application could be met by, for example, an order in respect of
any additional costs which may have been incurred being made against the party
responsible for the delay. To be fair, Mr McCausland on behalf of the plaintiffs,
recognised the good sense of obtaining a ruling on the validity of the appointment at
this stage.
[6] The above is the briefest of summaries of the circumstances which form the
background to the present jurisdictional challenge and which has involved hearings
extending over a period of six months. I should also say that I am indebted to
counsel on both sides for the helpful written and oral submissions made during this
application.
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