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Bluzwed Metals Ltd. v. Transworld Metals S.A. [2001] IEHC 89 (9th May, 2001)

THE HIGH COURT

1999 51 COS

IN THE MATTER OF TRADALCO LIMITED

AND

IN THE MATTER OF THE COMPANIES ACTS, 1963 TO 1990

BETWEEN

BLUZWED METALS LIMITED

CLAIMANT

AND

TRANSWORLD METALS S.A.

RESPONDENT

Judgment of Mr Justice Lavan delivered the 9th of May 2001

1. I am satisfied on the Affidavit evidence before me that there is a complete deadlock between the two partners who set up this company to carry out a joint venture namely the Claimant and the Respondent.

2. I am also satisfied on that evidence that the company’s activities are effectively paralysed to the detriment of both the members and the creditors.

3. This clearly indicates that the company may be wound up on the “just and equitable” ground. The leading case is Re Yenidji Tobacco Company [1916] 2Ch at 426, the principle of which was applied by Kelly J. in Re Irish Tourist Promotions (Unreported 22 April 1974) and Murphy J. in Re Vehicle Buildings and Insulations Limited [1986] I.L.R.M. at 239.

4. That being the situation I have to decide what has to be done in relation to the Respondents application to postpone the winding up of these proceedings pending the determination of a Swiss Court dealing with totally different causes of actions and a variety of parties including the Claimant and the Respondent.

5. I am satisfied that the proceedings before this Court are governed by the provisions of the Lugano Convention. It seems to me that were I to accede to a postponement then the Court would be repudiating an international convention which is a course I decline to take.

6. I have carefully considered all of the written submissions provided by the parties to the Court. In the result I accept the Plaintiff’s submissions on all of the issues raised on this Motion.

7. I am satisfied on the balance of probability that I can find no merit in this application to postpone.

8. To the contrary I consider that it is essential that a Liquidator be appointed at the earliest opportunity to the company. Serious decisions required to be made and in my view the Liquidator is the proper person to make these decisions. Among these decisions may well fall for consideration the question as to whether any action might have to be taken on behalf of the company to protect its interest in Switzerland and other jurisdictions.

9. I therefore refuse this application for postponement.

10. In conclusion I would like to draw the parties to the opinion of Lord Templeman in the Spiliada Maritime Corporation -v- Cansulex Limited [1987] appeal cases at 461, in dealing with the type of Motion which is before this Court in the following manner:-

“In the result it seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge. Commercial Court Judges are very experienced in these matters. In nearly every case evidence is on affidavit by witnesses of acknowledged probity. I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chievely in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on the facts; and that submissions will be measured in hours and not days. An appeal should be rare and the Appellate Court should be slow to interfere.”

11. I would like to point out that this Motion took some three days to argue. In my view that was two and a half days longer than it should have taken.