The High Court has appointed a liquidator to three insolvent companies in the Fleming building group, which has debts of more than €1 billion, following the Supreme Court’s decision to end court protection for them.
On the application of ACC Bank, Mr Justice Brian McGovern today appointed Mr Tom Kavanagh, of Kavanagh Fennell, liquidator to John J Fleming Construction (JJFC), JJ Fleming Holdings (JJFH) and Tivway Ltd.
ACC, which is owed €22 million by Tivway, previously appointed a receiver over that company.
Seeking the appointment of Mr Kavanagh, senior counsel for ACC Paul Sreenan said it had previously nominated Kieran Wallace of KPMG. However, as another person in that firm had been appointed receiver over Tivway, it was inappropriate Mr Wallace should be liquidator and ACC was instead proposing Mr Kavanagh.
There was no issue with the professionalism and experience of Mr Wallace and Anglo Irish Bank, owed some €260 million, had indicated it had no objection to either Mr Wallace or Mr Kavanagh, counsel said.
Lyndon MacCann SC, for the Fleming companies, said while they had no issue with the professionalism or independence of either Mr Kavanagh of Mr Wallace, their nominee for liquidator was Jim Hamilton of BDO Simpson Xavier.
ACC was pursuing “its own agenda” which it was entitled to do but its wishes were at odds with many of the other creditors and it would be better if Mr Hamilton was liquidator, counsel said. AIB, another large creditor, had no objection to Mr Hamilton, he added.
A solicitor representing some 19 smaller creditors said they supported Mr Hamilton as liquidator and ACC’s nominee would have “a different agenda”.
Mr Sreenan said any suggestion Mr Kavanagh may have an agenda because he was a nominee of ACC was “reprehensible”. Had protection not been granted last year to these companies, ACC would have applied then to have them wound up and it was almost unheard of for a company’s nominee as liquidator to be accepted.
Various unsecured creditors were clearly supportive of all these companies had done, counsel added.
Mr Justice McGovern said, had the companies not secured court protection last year, ACC would have applied to wind them up and its position had been “vindicated” by its success in the Supreme Court. None of the proposed nominees would adversely affect the interests of the creditors, he added.
In the circumstances, the judge said he would appoint ACC’s nominee, Mr Kavanagh, as liquidator, with a range of specific powers, including to carry on the business, secure the companies assets and retain valuers as necessary. He returned the matter to the High Court examiners list next month.
The hearing arose after the five judge Supreme Court unanimously refused court protection to the three companies last Thursday after finding proposed survival schemes for them did not amount to a plan with a reasonable prospect for their survival as “going concerns”.
