Approving Proposals
Cases
Padraic Tuffy Ltd -v- O’Neill & Anor
[2013] IEHC 231
Finlay Geoghegan J.
“4. Secondly, as the requirement that a notice be sent by post specified in O. 75A, r. 18(1) is a rule of court, it may be modified in circumstances where it is necessary to do so in the interests of justice pursuant to the Court’s inherent jurisdiction and/or pursuant to Order 124 of the Rules of Court. Non-compliance with the Rules does not render a proceeding void unless the Court so directs. Hence, for example, an examiner who had sent notice by email by arrangement with creditors or in circumstances where he was able to demonstrate that the creditor had received the email and did not follow up by sending a letter by post could apply to court to dispense with the requirement that the notice be sent by post and a court would have jurisdiction to grant the application if it considered it was in the interests of justice to do so. The decision would depend on the facts of the application.
15. Section 25A(1)(c)(i)(II) must be construed as creating, insofar as possible, certainty. This appears to me to follow from the potentially serious consequences for a creditor who does not serve a notice on the guarantor pursuant to s. 25A(1)(c)(iii) within the time specified. The Oireachtas, in commencing the 48 hour period at the time at which a creditor “has received notice of such meeting” intends to create such certainty by commencing the relatively short period of 48 hours from an actual receipt of notice by the creditor. The creditor knows when he or, in the case of a company, it receives notice of the meeting. Undoubtedly, 48 hours is a short period of time but the Oireachtas clearly envisaged that having regard to the overall time constraints in an examinership, that meetings might be held at relatively short notice. The Oireachtas, in the legislation, does not specify how notice of meetings must be given. Accordingly, it appears to me that the words in s. 25A(1)(c)(i)(II) must be construed as meaning that the 48 hours commences from the time at which the creditor actually received notice of the meeting and cannot be construed as meaning that it should only commence when the creditor received a notice which was given in accordance with a rule of court. This is particularly so as for the reasons stated compliance with the rule of court may subsequently be complied with.
16. In reaching this conclusion, I have had regard to the fact that the rights of the applicant under the guarantee which it holds from the respondents are property rights which benefit from constitutional protection, and insofar as s. 25A may limit such rights, its provisions should be strictly construed, see Byrne v. Grey [1988] I.R. 31 at p. 38 and Murphy v. Greene [1990] 2 I.R. 566. The respondents also have property rights, including their right of indemnity from the Company which are being interfered with by the scheme of arrangement provided for by the Act. A construction of the words used in s. 25A(1)(c)(i)(II) in the context of the entire section and the provisions in relation to schemes of arrangement under the Act, requires that they be construed as providing that the 48 hour period starts from the time of actual receipt of a notice of the meeting by the creditor concerned and is not dependent on the manner in which the notice is sent.
17. It follows from my conclusion that on the undisputed facts herein, the applicant received notice of the meeting for the purposes of s. 25A(1)(c)(i)(II) upon receipt of the email on Tuesday 30th April, 2013. The evidence is that the email was sent at 12:36pm and no evidence has been adduced by the applicant disputing that it was received by it at that time or very shortly thereafter. Accordingly I find that the applicant received notice of the meeting at approximately 12:36pm on Tuesday 30th April, 2013 and hence, the notice served on the evening of Thursday 2nd May, 2013, was not served within 48 hours after it had received notice of the meeting.”