Seven companies controlled by property developer Liam Carroll have resumed their fresh bid for High Court protection.
Vantive Holdings, Morston Investment and five other businesses are seeking permission from the Court to have a fresh petition for the appointment of an examiner be allowed go to full hearing.
The Court reluctantly accepted the lodging of the petition at an eleventh hour hearing last Friday night.
Last week, the Supreme Court rejected an appeal by six of the companies against a High Court decision not to appoint an examiner to them.
The companies are seeking court protection because ACCBank is seeking to have them wound up over €136m of unpaid loans. On Wednesday of last week, ACC secured the appointment of a receiver and liquidator to six of Carroll's companies.
At the start of the hearing, Mr Justice Cooke posed a number of issues and questions which he said might have an impact on the hearing.
He wondered does company law envisage permitting the bringing of a second such application for examinership when a first has been rejected by the High and Supreme Courts.
He also asked if it is possible, should the court hear a petition which contains new evidence, some of which was available to the first petition.
He also questioned whether there was a legal basis for the court to keep valuations of properties contained in the proposals confidential in a scenario where justice is supposed to be seen to be done in public.
Opening the case on behalf of the companies, Senior Counsel Michael Cush said the new petition contained evidence addressing the two major grounds upon which the Supreme Court rejected the first petition.
On the issue of the absence of proof of ongoing financial support from the banks, he said he hadn't been in a position to provide it during the first petition, but said the supporting banks had now provided evidence of their support.
On the absence of up to date property valuations, which was also criticised by the Supreme Court, he said the new petition contained fresh affidavits from two valuers.
The first from a valuer from CBRE, he said, states that although since the valuations were first done in December 2008 there has been a further contraction in the commercial property market, the valuer is confident it will stablilise within two years and improve in the medium term.
Mr Cush also gave details of a new affidavit from a residential property valuer in Hooke and McDonald which stated that while values had fallen 10-15% since December 2008, 53 units had been sold at prices envisaged in that year or better.
The valuer also states his belief that over the remaining 30 months of the business plan, 150 units could be sold each year at prices at or within 10% of that envisaged.
Mr Cush explained to the court that the reason why the December 2008 business plan and the valuations contained in it were not given to the court during the first application was because Liam Carroll had taken the decision not to include them.
Mr Cush said the information was available when the application was being made, and the advice from the companies legal advisors and other directors was that it should be submitted to the court.
But Mr Carroll as leading shareholder and controller of the group had decided otherwise he said. And an affidavit submitted by fellow director, John Pope, and reports from Mr Carroll's doctors, suggest that at the time that he made the decision, Mr Carroll was operating under stress and his decision making was impaired, Mr Cush claimed.
Mr Cush confirmed to Justice Cooke that it was not the case that Mr Carroll had since withdrawn the insistence to exclude the business plan and valuations, but rather that the application was now proceeding on the basis of a resolution passed by the other two directors of the companies, Mr Pope and Mr Twomey.
The court also heard that, as the other shareholder of the companies, Mr Carroll's wife Roisin supports the petition.
Mr Justice Cooke asked why in this petition no explanation had been given as to why evidence of support from the companies’ banks had not been included in the first petition. Mr Cush said he had no explanation, as the knowledge as to why it wasn't included does not lie with him or his clients, but was a matter for the banks.
The court also heard details of support for the petition from a number of sub-contractors who work for the companies or other businesses related to them. The court also heard that the application contains a letter from SIPTU expressing concern about the possible impact on employment.
Mr Cush said creditors and employees have a far greater interest in the success of the petition than his clients do. Employees aren't to be blamed for any failure by the companies, he said.
In relation to the law, Mr Cush argued there is nothing in company law preventing a second petition being presented, even by the same company. He said the Acts already contain a series of restrictions about the presentation of petitions, which were laid down by the Oireachtas, and which it is not for the court to read further into.
He said the application for examinership is in and of itself unlikely to prejudice ACC Bank, which is relentlessly pursuing its own commercial self-interest.
He pointed out that AIB, Bank of Scotland Ireland and Bank of Ireland all support the petition, and their secured debt is almost seven times greater than that of ACC.
The case has adjourned for today and will resume tomorrow morning at 10.30am.
