Legal order freezing assets of scaffolding products company is discharged

The order had prevented Instant Upright Ltd reducing its assets below a value of €3.6m following an application by its landlord

The Four Courts in Dublin.

The Four Courts in Dublin.

 

An order freezing the assets of a company that makes scaffolding and engineering products has been discharged by the High Court.

The order, which prevented Instant Upright Ltd reducing its assets below a value of €3.6 million, was obtained earlier this month by Airscape Ltd on an ex parte basis, where only one side is represented.

Airscape, a property development and investment firm, is the landlord of a factory unit at Friel Avenue, Park West Industrial Estate, Nangor Road, Dublin 12, from where Instant Upright previously operated for many years.

Airscape claims Instant Upright breached a lease agreement in respect of the premises and it has brought a damages claims against its former tenant. Those claims are denied and that action remains pending before the Commercial Court.

Airscape had obtained a temporary freezing order against Instant Upright after claiming the defendant was attempting to dissipate its assets.

Instant Upright denied the claims and argued the freezing order was an abuse of process and should be removed. Its reputation and ability to trade had been damaged by the order, it claimed.

An application by Airscape to keep the freezing order in place until the case was determined had opened before Mr Justice Brian O’Moore on Thursday.

Seeking to have the order set aside, Thomas Hogan SC, with Martin Canny, for Instant Upright, argued there had been a material non disclosure of evidence to the court that initially granted the freezing order.

There was no evidence to support the applicant’s claims of fraud by his client that would justify a freezing order, he said.

On Friday afternoon, lawyers for Airscape told the judge it was withdrawing its application to continue the order and the order could be discharged.

Mr Justice O’Moore said the application for continuation of the freezing order had been “abandoned” by Airscape and that was an “appropriate and wise” decision.

The defendant was entitled to have its legal costs paid by the applicant, the judge added. He directed that €75,000 plus VAT be paid on account to Instant Upright’s lawyers but declined an application for costs to be paid on a solicitor-client basis, the highest level of legal costs.

Airscape’s damages claim remains pending and will be mentioned before the Commercial Court next week.

In that action, Airscape claims it entered into a 25-year lease agreement with the defendant in 2001 for an annual rent of about €1.5 million. It claims arrears of rent of €1.3 million have built up and the defendant decided last March to terminate the lease and subsequently left the Nangor Road premises.

Airscape disputes the manner of the purported termination and claims, despite having secured a new tenant, the alleged breach will result in losses of €2.3 million in future rent. The defendant denies any rental arrears are owed or that it is responsible for any future loss of rental income.

Instant Upright, which has entered into a lease for a new factory in Citywest, Dublin, has counterclaimed against Airscape regarding losses allegedly sustained when its former premises was damaged following a snowstorm in March 2018.