The Supreme Court has made orders granting ACC Bank the legal costs of the final stages of its successful opposition to the long-running bid for court protection by developer Liam Carroll’s heavily insolvent Zoe companies.
Today’s orders follows earlier costs orders in favour of ACC entitling it to the substantial legal costs of various stages of the court proceedings, estimated at well over €1 million.
The application for costs was made by Lyndon MacCann SC, for ACC, who said solicitors for the Zoe companies had written to his side indicating consent to costs.
The Chief Justice Mr Justice John Murray made orders awarding ACC the costs on a party-party basis.
The latest orders relate to the costs of a High Court hearing in which Mr Justice John Cooke allowed the companies bring a second petition for court protection just weeks after both the High and Supreme Courts had rejected the first petition as “fanciful” and grounded on no evidence. They also relate to the costs of ACC’s successful Supreme Court appeal against Mr Justice Cooke’s decision.
The Supreme Court ruled the bringing of that second petition was an abuse of court process. The Chief Justice said the companies had to bear the consequences of Mr Carroll’s “conscious and deliberate strategic” decision, in “the teeth of legal advice”, to withhold crucial information from the court when first seeking protection in July.
The Chief Justice said there was no evidence under which the court could find either Mr Carroll’s health or his concerns about the commercial sensitivities of the information were the exceptional excusing factors necessary under the Companies Act to allow a second petition to proceed in August.
Ms Justice Susan Denham ruled Mr Justice Cooke was wrong to find that other considerations, such as the rights of creditors and employees, could override a company’s obligation not to abuse court process.
ACC had previously secured costs orders in relation to an earlier High Court hearing in which Mr Justice Frank Clarke refused the companies second petition on grounds they had produced no evidence to support their claim of a reasonable prospect of survival.
The court battle began in late July and the group’s first petition for protection was refused by Mr Justice Peter Kelly on July 31st. In a decision upheld by the Supreme Court in early August, he ruled there was no evidence on foot of which the court could find the companies had a reasonable prospect of survival.
Last week, the Supreme Court made orders confirming the liquidation of key companies in the group. ACC, which is owed €136 million by Zoe companies, had not opposed the first Zoe application for protection but, immediately after Mr Justice Kelly gave his decision on that petition, it signalled a change of attitude and from then on strenuously opposed protection.
The application for protection was by Vantive Holdings and Morsten Investments (the key funding companies in the Zoe group); Villeer Developments; Peytor Developments; Carragh Enterprises Ltd; Parlez International Ltd and Royceton.
