Court allows liquidation of four companies after nine-year battle
Wexford-based MJ Power Construction among firms Revenue sought to wind up
The Supreme Court found that the evidence did not establish the Revenue had sought winding up of four companies for ulterior motive or improper purpose. Photograph: Nick Bradshaw
A nine-year battle to prevent four companies being liquidated over Revenue Commissioners debts exceeding €1 million has ended with a Supreme Court order permitting the winding-ups to proceed.
The three-judge court unanimously found that no matter how sincerely Martin Power, the “moving spirit” behind the companies, believed otherwise, the evidence did not establish that the Revenue had sought winding up for ulterior motive or improper purpose.
The “express, obvious”, purpose was to gather together hundreds of thousands of euro due to the State and, therefore, the public, Mr Justice John MacMenamin said.
The Revenue presented winding-up petitions in July 2008 for the four companies – Tweedswood Ltd, Global Test and Survey Technologies Ltd, MJ Power Construction (Wexford) Ltd and Groupco Management Services Ltd. They were adjourned to October 2008 when the High Court ordered the winding up of three. In December 2008, it ordered the fourth company, Tweedswood Ltd, be wound up.
The companies lodged appeals in 2009 and a stay applied on the winding-up orders pending that appeal.
For reasons including objections by the companies and delays in the court system, the appeal was not heard by the Supreme Court until this year. No blame attached to the Revenue for the delay, the court said.
Giving the court’s judgment, Mr Justice MacMenamin noted the events had taken place well before the Companies (Amendment) Act 2014 had been enacted but the winding-ups would proceed under that Act. He refused to put a further stay on the winding-up orders.
He ruled the companies had not established evidence from which the court could infer the Revenue and other persons, who were not parties to the litigation, had been part of a “conspiracy” to “stifle” the companies. Nor had they established that the Revenue had acted for ulterior motive or improper purpose.
One of the main issues was a series of transactions concerning the Custom House Quay site in Wexford town, he noted.
In a 2008 affidavit, Mr Power claimed that, in February 2002, Tony Dempsey, then a Fianna Fáil TD who held a 50 per cent shareholding in Tweedswood, sold his interest in the Custom House Quay block to Tweedswood. Having conveyed the property in 2002, Mr Dempsey began a process of “reversing” or rescinding the sale in September or October 2002 and the Revenue had wrongly approved that, Mr Power alleged.
It was alleged that in dealing with Tweedswood in relation to VAT, the Revenue had treated the sale as closed but, in its dealings with Mr Dempsey, it had treated the sale as rescinded by him. Mr Power claimed that, as a result, Mr Dempsey had benefited financially and was able to make appropriate returns as to his financial interests to the standards in public office authorities.
The Revenue denied it had acted unlawfully in its treatment of the VAT transactions and denied the winding-up petitions had been an effort to cover up what it allegedly had done.
High Court proceedings
The judge stressed Mr Dempsey was not a party to this litigation and had had no chance to answer the claims concerning him which could not be taken as established fact. The allegation must also be seen in light of proceedings brought by Mr Dempsey concerning a contract for sale of the Custom House Quay building, which a High Court case settled in 2008 on terms including Mr Dempsey getting judgments totalling more than €864,000 against Tweedswood and Mr Power.
The complaints concerning the Revenue’s handling of the Custom House transaction dated back to 2002-2003, some five years before the winding-up petitions had been initiated, and well before the settlement of Mr Dempsey’s case in 2008, he noted.
A “mass” of “new material” presented in the appeal concerning the validity of the assembly of a site for government departments in Wexford town was “speculative” and suggested “clutching at straws”, he also said. An inquiry ordered at Wexford County Council had found no evidence of impropriety in relation to the assembly of the site and there was no “chain of connection” between that and the winding-up petitions which would establish ulterior motive on the Revenue’s part.