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Court appoints liquidator to Fleming Group
05 March 2010
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The High Court has today ordered the winding up of three companies in the Fleming construction group following a decision yesterday by the Supreme Court to uphold an appeal by ACC Bank against an earlier High Court order placing the companies under examinership.
In the High Court today Mr Justice Brian McGovern also appointed Mr Tom Kavanagh of Kavanagh Fennell as liquidator to the companies, Tivway Ltd, John J. Fleming Construction and J.J. Fleming Holdings.
Mr Justice McGovern ordered that a statement of affairs for the three companies be prepared within 21 days, and that they appear on the examinership list for April 26.
Yesterday the Supreme Court had upheld ACC’s appeal against the placing of the companies into examinership.
In a unanimous judgment, delivered by Ms Justice Susan Denham, the Court found that the schemes provided for the companies by the examiner did not provide for the survival of each of the companies as going concerns.
Instead, the Court found, the schemes provided for the companies’ survival “in a holding plan over the next ten years”. Delivering the judgment, Ms Justice Denham said that this did meet the legal parameters provided for in section 2 of the Companies (Amendment) Act, 1990. This section, the judgment stated, provided that what is at stake is “not just a question of a reasonable prospect of the survival of the company – it is the survival of the company as a going concern”.
As the schemes did not meet the legal parameters of the act, the Court found, the Court did not have jurisdiction to appoint an examiner. The Court proposed an order reversing the High Court’s order of 16 November 2009, and referred the matter back to the High Court, where today Mr Justice McGovern ordered the winding up of the companies.
In its judgment, the Supreme Court said that “the facts of this case are bleak. They epitomize the consequences of the recent property boom and bust.”
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