High Court disallows certain fees sought by liquidator

A High Court judge has disallowed certain fees sought by a liquidator which would have meant the Revenue, owed €490,000 by the liquidated company, would get none of the total €95,444 recovered in the liquidation.

Mr Justice Paul Gilligan said Anthony J. Fitzpatrick, appointed liquidator in 2005 of Cherryfox Ltd, was entitled to €53,281 total remuneration but must also pay the Revenue €42,161, irrespective whether that sum remains in the liquidation.

To allow the €66,000 remuneration sought by the liquidator, plus costs outlay and expenses, would effectively mean the liquidator takes the entire available funds in discharge of his own fees, legal fees, consultant fees and expenses, the judge said.

Explanation

This would not be a “justifiable outcome” to a liquidation in which all monies recovered were recovered by early 2006, restriction orders against the company’s directors were made in 2009, it was “unclear” what had been happening in the years since and there was no reasonable explanation for the delay finalising the liquidation.

While Mr Fitzpatrick contended this was a difficult liquidation made worse by the death of an expert member of his staff, the court considered it was relatively simple and straightforward, the judge said.

The relevant staff member had died in 2008, two years after the monies were recovered, and a report was delivered to the Office of the Director of Corporate Enforcement for a “simple” restriction application at fixed costs of €1,500. CherryFox Ltd, a security services company, of Robinhood Industrial Estate, Dublin, went into liquidation in 2005 owing Revenue €490,000.

The Revenue had objected to the remuneration claimed by Mr Fitzpatrick as excessive and its counsel Kieran Binchy BL on Friday sought costs of the application personally against the liquidator. The Revenue had told Mr Fitzpatrick in 2014 and 2015 it would not object to fees of some €45,000, plus VAT, but he refused that offer and had now been awarded less by the court, Mr Binchy said. Patrick O’Reilly SC, for Mr Fitzpatrick, argued the liquidator is an agent of the company entitled to his costs in the liquidation. His client also intended to appeal the direction to pay Revenue €42,161.

The judge said he considered, with “some reluctance” and for reasons including his concern the €42,161 for Revenue should not be absorbed by legal costs, the balance of justice required each side pay their own costs. In his judgment earlier, the judge noted Mr Fitzpatrick, chartered accountant and insolvency practitioner, practising from Clonmoney House, Newenham Street, Limerick, was appointed liquidator of Cherryfox in July, 2005 and by February, 2006 had recovered funds of €95,440.

Proceedings

He also brought proceedings leading to restriction orders in 2009 against the directors of the company. A final creditors meeting was held in 2014 and in July 2014 it was estimated there would be a dividend of some €15,000 available to the Revenue. Mr Fitzpatrick later sought remuneration of €65,981, including VAT, based on 352.25 hours work, plus costs outlay and expenses.

That bill was advanced after deducting 50 hours. Mr Justice Gilligan held, on the evidence, the claim for 352.25 hours could not be justified for reasons including, by early 2006, the entire monies collected in the liquidation had been taken in. Mr Fitzpatrick had also not sought to tie in the claim for hours worked with the dates upon which work was carried out, he said.

He saw no basis for the retention by Mr Fitzpatrick of various consultants and also considered it was not necessary for Mr Fitzpatrick to run up fees of €2,000 in personally attending a court hearing relating to the proceedings against the company directors.