The High Court has dismissed an application to wind up a green fuel distributor after finding there was a “culpable and material” non-disclosure to the court by the petitioner.
Mr Justice Mark Sanfey discharged the provisional liquidators he appointed last month to Green D Project Ireland on the application of UK-based distributor Green Biofuels Limited, with support from fuel supplier Certa Ireland Limited.
He said Green Biofuels had not established that the company was unable to pay its debts.
The appointments had been made without prior notice to Green D, which, when informed, told the judge through its senior counsel Gary McCarthy that it would be strongly contesting the petition for its winding up.
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In a ruling this week, Mr Justice Sanfey said Green Biofuels, which is under administration, specifically relied on its status as a creditor, alleging it was owed €40.5 million, to establish standing to present the petition.
The petition should have informed the court that the petitioner’s business and certain assets were sold to Certas Energy UK, the judge said. He said Green Biofuels also needed to clarify whether its alleged debt remained in its property.
It was a “significant omission” that while claiming another company was unable to pay its debts it did not take care to definitively establish it was a creditor of the company, he said.
It appeared, however, that it had legal standing to bring the petition as a contributory of Green D, which has an office at Fitzwilliam Street Upper in Dublin, the judge added.
The evidence about Green D’s ability to pay its debts was disputed through sworn statements from either side, including by Green D’s hired accountant, who said it would be owed more than €31 million by Green Biofuels. This was against the backdrop of figures produced months earlier showing a “very different position”, the judge said.
Bristol-based Green Biofuels, which has a 65 per cent stake in Green D, told the court there was no evidence to support Green D’s assertion it was owed money. The petitioner submitted it was owed €40.5 million, while Certa was due €16 million.
Its counsel submitted that management accounts showed Green D incurred losses of €10.7 million in the 10 months to August 2023 and had a deficiency of assets over liabilities of about €13.3 million.
Mr Justice Sanfey said it could be that Green D had “very difficult questions to answer” of its ability to pay its debts. However, he said, it was not appropriate to disregard the accountant’s affidavit evidence when it had not been challenged via cross-examination.
The judge said Green D’s sole director, Karl Pattemore, of Coliemore Road, Dalkey, Co Dublin, had alleged the petition was a “direct attempt” on the part of Green Biofuels’s administrators to obtain control of Green D to sell its assets, claimed Mr Pattemore, who holds a 30 per cent stake in Green D. This was denied by the petitioner.
In support of the petition, Certa had claimed 9.3 million litres of biofuel Green D was supposed to be storing in Ringaskiddy, Co Cork, appeared to be missing.
Mr Justice Sanfey said this situation was not on its own a basis for finding the company was insolvent. He said the facts of this were “strongly contested” by Green D, which submitted that much of the oil may still be held in the UK.
While the company’s inability to give a definitive account of what had happened to the oil bought by Certa was “disquieting”, the petitioner’s interaction on this issue, in particular a “misleading” measurement of oil by an employee of the petitioner, had contributed to confusion, the judge said.
The judge dismissed the petition.
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