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Judgment Title: In the Matter of Buzreel Ltd and In the Matter of the Companies Acts 1963 to 2012 Neutral Citation: [2014] IESC 45 Supreme Court Record Number: 205/14 High Court Record Number: 2014 185 COS Date of Delivery: 16/07/2014 Court: Supreme Court Composition of Court: Clarke J., Laffoy J., Dunne J. Judgment by: Clarke J. Status of Judgment: Approved
Notes on Memo: Reasons given | ||||||||||||||||
THE SUPREME COURT [Appeal No: 205/2014] Clarke J. Laffoy J. Dunne J. In the Matter of Buzreel Limited
And In the Matter of the Companies Act 1963 to 2012
Demirca Limited Applicant/Appellant and Niall Hughes, Official Liquidator of Buzreel Limited (in official liquidation) and Midland Web Printing Limited Respondents Judgment of Mr. Justice Clarke delivered the 16th July, 2014. 1. Introduction 1.2 It is as against that very general background that the difficult issue, which had to be considered in the context of this application, which arose both in the High Court and in this Court, arose. The company named in the title to these proceedings ("Buzreel") has been the subject of liquidation proceedings initiated by the second named respondent ("Midland"). Midland presented a petition to wind up Buzreel on the 2nd April, 2014. The first named respondent ("the liquidator") was appointed provisional liquidator on that day. Buzreel was the owner of the only classified advertising business in Ireland being the well known magazine "Buy and Sell". It was at all times clear that achieving the maximum value for the principal assets of Buzreel, being its ownership of "Buy and Sell" and related assets, would be critical to the interests of the creditors. In that context the liquidator immediately advertised the sale of those assets (within two days of his appointment) and decided on an urgent sale process, most particularly because it was not unreasonably anticipated that the value of the title "Buy and Sell" could rapidly decline if the magazine were to be out of publication for any appreciable period. It would be fair, in that context, to describe much of the assets of Buzreel as being of a wasting nature. 1.3 Be that as it may, the sale process ran into difficulties. A number of bidders emerged. One was Midland itself. A second was the applicant/appellant ("Demirca"). It also should be recorded that the liquidator received two other bids although those bidders had ceased to be actively involved when the matter came before the courts. Ultimately, a dispute emerged between Demirca, Midland and the liquidator as to which bid, if any, should be accepted. Hogan J., on the 24th April, 2014, took the view that he should make an order of a type similar to that made in Van Hool McArdle Limited v. Rohan Industrial Estates Limited [1980] I.R. 237 (a "Van Hool order ") which gave both Demirca and Midland a final opportunity to make what were described as unconditional sealed bids. 1.4 Further difficulties, or at a minimum asserted difficulties, emerged in respect of that second bidding round which resulted in the matter coming again before Hogan J. For the reasons set out in a judgment delivered on the 1st May, 2014 (Buzreel Limited & Companies Acts [2014] IEHC 225), Hogan J. took the view that Midland's bid on that second round of bidding was both the highest bid and a valid bid in accordance with the terms of the Van Hool order. In those circumstances Hogan J. directed the liquidator to complete the sale of the assets of Buzreel to Midland in accordance with that bid. 1.5 Demirca appealed to this Court against that judgment and order. The matter came on for hearing on Thursday 5th June. Having considered the arguments made and having regard to the urgency of a sale being completed, the Court indicated, just before lunch, that it was persuaded that the proper course of action to adopt, in all the circumstances, was to permit both parties one final opportunity to bid. Having consulted with counsel it was agreed to put the matter back until 2.00 pm to enable both parties to ascertain the minimum timeframe within which they would be able to make a bid supported by adequate evidence of the availability of funds. In the light of what was then said the Court fixed 4.00 pm as the latest time when such bids should be made. When the Court sat again at 4.00 pm counsel for the liquidator arranged for the two bids to be handed into court and indicated that the liquidator was satisfied that, in both cases, satisfactory evidence of the availability of funds had been provided. Given that the bid from Demirca was of a significantly higher value than the bid from Midland, the Court directed the liquidator to accept the Demirca bid. The Court also indicated that reasons would be given, in due course, for the Court reaching the conclusions which it did. The purpose of this judgment is to set out the reasons why I supported the course of action which the Court took. In order to properly understand the precise issues which arose, it is necessary to start by considering in a little more detail the precise sequence of events which led to the order of Hogan J. I, therefore, turn to those facts. 2. The Facts 2.2 The liquidator then applied to the High Court by motion dated 15th April, 2014 for approval of the sale of the relevant assets to Demirca, who at that point was the highest bidder in respect of which the liquidator had satisfactory proof of funding. Midland opposed this sale and stated that it had been expressly confirmed that the liquidator would accept the investment portfolio as proof of funding. A further issue arose in that the liquidator had disclosed to Demirca the bid placed by Midland. Faced with those difficulties, Hogan J. decided that the fairest way to proceed was to make a Van Hool order and to give the two parties one final opportunity to make unconditional sealed bids which were required to be with the liquidator by 5 p.m. on Monday April, 28th. It was a term of the order that the liquidator was entitled to reject a bid not accompanied by a “bank draft or its equivalent or a letter from a senior official from a bank of standing confirming that the funds are available for immediate transfer to the Provisional Liquidator on completion of the contract for sale.” The court also ordered that signed contracts accompany the unconditional sealed bids. 2.3 On Monday April 28th, Demirca submitted an unconditional bid at 4.45 p.m. Midland submitted a bid at 4.59 p.m. offering a sum by bank draft, plus an additional cash amount to the value of 1% of the draft amount. However, the cash amount was not handed over until about 5.20 p.m. Further, it was stated in Midland’s bid that: “The offer is also subject to the purchaser acquiring clean title and all computers and software that that is required for running the business as per your information memorandum.” The liquidator questioned whether such a clause complied with the High Court's directions as to unconditionality, in response to which Midland agreed to delete the clause. Midland had made the highest offer and the liquidator then applied, on the 29th April, to the High Court, for an order under s.231(3) of the Companies Act, 1963 ("the 1963 Act") in respect of that bid. 2.4 As Demirca were not present on the morning of the 29th April, Hogan J. took the view that it was in the interests of procedural fairness that Demirca be afforded an opportunity to object and on that basis postponed the making of any order until 11 am on Thursday, 1st May. 2.5 On the 1st May, Demirca argued against the making of an order approving the sale to Midland. Legal argument was heard and Hogan J. delivered an ex tempore judgment concluding that, as the Van Hool order was intended to be the final step in the process and that, in his view, Midland’s bid was valid, he would direct that the liquidator accept that bid. However, Hogan J. put the matter in for 2 p.m. on the following day, the 2nd May, in order to give Demirca an opportunity to consider its position. On the 2nd May, Demirca indicated an intention to appeal and Hogan J. agreed to extend the stay on the order to 5 p.m. on the 7th May, to facilitate Demirca in bringing an appeal to this Court. It was in that context that Hogan J. agreed to elaborate on his reasons in a written judgment. As appears from that written judgment, Hogan J. found that any deviation from the terms of the Van Hool order by Midland was not material and as such found that the Midland bid was in compliance with the Van Hool order. 2.6 It is also important to record that one further matter of fact, which did not appear to have featured as a material issue before the High Court, emerged in the course of argument before this Court. As has already been noted, one of the terms of the Van Hool order made by Hogan J. was to the effect that both parties should, as well as making a bid and supplying appropriate evidence of the availability of funds, also hand over a signed contract. It does appear from what the Court was told by counsel in the course of argument during the appeal that, strictly speaking, neither side complied with that requirement. So far as Midland is concerned, it would appear that no signed contract was proffered although counsel did point out that Midland personnel were present on the occasion when the bids were opened and were in a position to sign a contract as soon as one was proffered. It further needs to be noted that the contract as ultimately signed was one which had required some amendment from a draft previously supplied to both bidders. One of the amendments would appear to have been purely technical in that, in the intervening period, the liquidator had changed status from a provisional liquidator to an official liquidator and reference to that new status required to be inserted. Second, and perhaps of greater materiality, the Court was informed that the original draft contract did not include a list of the equipment to be included in the sale and that such a list was inserted in the document which was ultimately signed by Midland. 2.7 So far as Demirca is concerned, it would appear that Demirca had already proffered a form of signed contract to accompany an earlier bid which it had made in the course of the hearing which led to the Van Hool order. The Court understands that, on the second round of bidding, Demirca indicated that it would be bound by that contract. However, it of course needs to be pointed out that the bid made by Demirca on the second round was for a larger sum of money than that which had originally been included so that, strictly speaking, there was no signed contract from Demirca in the terms of its revised and increased bid. Likewise, although Demirca can hardly be blamed for this, the contract which it had earlier signed did not have, for obvious reasons, the amendments to which I have just referred. 2.8 Against the background of those facts it is next necessary to turn to the reasons why the trial judge took the view that he should direct the liquidator to accept the Midland bid. 3. The Trial Judge's Reasons 3.2 With regard to the argument concerning the late cash payment, Hogan J. noted that the draft amount put forward by Midland exceeded the bid of Demirca, in and of itself, and in any event also concluded that immediate payment on or before 5 p.m. was not absolutely necessary given that a letter from a bank of standing was specified as being sufficient. Thus, he concluded there could be said to be a high degree of compliance with the Van Hool order in that respect. 3.3 In relation to the argument that the bid was not unconditional, Hogan J. held that the Van Hool order did not require the bid to be unconditional in the literal sense. Proof of clean title was, in his view, a standard requirement, and the stipulation that all computers and software were to be acquired was found to be “no more than a statement of the obvious” given that such items were included in the information memorandum. Hogan J., therefore, held that the words did not convey equivocation and, as they were subsequently deleted, he found that no real prejudice was caused to Demirca. 3.4 Against that background it is necessary to set out the position of the parties on the appeal. 4. The Appeal 4.2 To the extent that the Court might not be persuaded to depart from the overall reasoning at the level of principle adopted in the High Court, counsel for Demirca suggested that the trial judge was wrong to conclude, on the facts, that the Midland bid was compliant. It was said that the bid was demonstrably conditional and that some of the cash element of the funds had not been made available within the specified time. In addition, counsel argued that the process had failed to comply with the terms of the Van Hool order which required the bids to be sealed. Counsel adopted that position by virtue of the fact, which was undisputed, that discussions were carried on, after the closing time for receipt of bids, between the liquidator and his representatives and Midland and its representatives which ultimately led to the withdrawal of the clause said to make the bid conditional. Counsel argued that permitting any discussion as to the terms of a bid after the time for making the bid had expired amounted to a breach of the obligation that the bid be sealed. Even if, therefore, the Court was not persuaded that a general jurisdiction to act in the best interests of the creditors was the overriding consideration, counsel for Demirca argued that the Midland bid had not been compliant. 4.3 In that latter context it is, however, of significant importance to note that counsel did not thereby urge that the Court should treat the lower Demirca bid as being the only compliant bid and, thus, the victorious one. Rather, counsel argued that the proper course of action for the Court to adopt in the complex situation which had arisen was to permit a further round of bidding. 4.4 Broadly speaking, counsel for the liquidator supported the position adopted by counsel for Demirca. In addition, counsel urged that it was possible that the extent to which Demirca might be willing to offer more money than the bid which the High Court had directed be accepted was a material factor for, it was argued, the extent to which the creditors might benefit by a reopening of the matter as a whole was a factor which should properly be taken into account. In that context it should be noted that the Court was not aware of the amount of the higher bid which had been tendered on behalf of Demirca on the occasion of the second hearing before the High Court. It should be noted that, on the occasion of the hearing of a motion seeking a stay which ultimately led to a greatly expedited hearing of this appeal, counsel for Demirca gave an undertaking to the effect that that bid would be kept on the table until the appeal had been concluded. Before going on to consider the issues, it should also be noted in passing that, as a condition of a stay being imposed for the brief period anticipated as being likely to last between the hearing of the stay motion and the hearing of the substantive appeal, Demirca was required to give an undertaking analogous to the type of undertaking as to damages given on the occasion of an application for an interlocutory injunction. Against that background it is appropriate to turn first to the legal issue as to the proper approach which I have already identified. 5 The Proper Approach
5.2 Next it is necessary to consider the judgment, from which the notion of a Van Hool order derives, in Van Hool McArdle Limited v. Rohan Industrial Estates Limited [1980] 1 I.R. 237. In Van Hool, O'Higgins C.J. noted that the liquidator concerned could have exercised his power to proceed to sale by private treaty independent of the Court but that “different considerations apply where the liquidator decides not to exercise this power and not to act independently of the court.” Kenny J. specifically distinguished the case from Hibernian Transport, stating that in that case the court had already sanctioned the sale and “had to keep faith with the purchaser”, whereas, in Van Hool , the High Court had not given its consent to the sale at the point in time when the higher bid came in. Kenny J. re-stated the principle that “[t]he primary duty of the court and of the liquidator in a court winding up is to get the maximum price for the assets.” 5.3 Thus, in Van Hool, this Court held that the High Court had erred in proceeding with one offer where a higher bid was available before any court order was made. In fact, Kenny J. noted that “[a] system under which a bid of £730,000 is accepted when one of £850,000 has been made would bring the court into well-deserved ridicule.” The solution devised was to open up the bidding process to the two parties for fresh offers. This is the origin of what is known as a “Van Hool order”. 5.4 There might, on one view, be said to be something of a tension between the decisions of this Court in Hibernian Transport, on the one hand, and Van Hool, on the other. Van Hool emphasises the importance of obtaining the maximum funds for the benefit of the creditors. Emphasis is placed on the fact that the court process would be rightly criticised if the Court were to require that a sale of assets be completed at a lower price than one which had become available. On the other hand, Hibernian Transport emphasises the necessity for the Court to keep faith with its own earlier order even if, strictly speaking, it might not necessarily be the case that a binding contract had been entered into. Clearly if the liquidator in Hibernian Transport had already entered into a binding contract for the sale of the assets in question in that case then no question of the matter being reopened could have arisen. 5.5 As a result of the hearing on this appeal, I came to the view that there is, in reality, a consistent overall approach between Hibernian Transport and Van Hool. There are two important principles involved. A court is required to take all reasonable steps, whenever issues arising in liquidations come before it, to maximise the return to creditors. But in so doing a court is required to keep faith with its own process and with any earlier orders which it has made. Just as it would bring the court process into disrepute if a court were to turn down a significantly higher offer, so also would it bring the court process into disrepute if the Court were to go back on a completed process which the Court had previously ordered or approved. 5.6 It is important to emphasise the comments made by O'Higgins C.J. in Van Hool. As he pointed out, the offer which the liquidator proposed that the Court might direct be accepted had not been the subject of any court order and did not arise from a court directed process. It could not be assumed that an application to the Court (if that was the course of action which the liquidator chose) would simply involve the Court in rubber-stamping the views of the liquidator. There would be little point in an application to the Court if the Court did not have a function. Thus the Court was required to make an independent judgment as to whether to approve the bid being put forward and, in the light of the fact that a significantly better bid was then available, the Court took the view that it should not approve the bid put forward by the liquidator. 5.7 But it seemed to me that different considerations would have applied in Van Hool had the process which had led to the bid in question coming before the Court been itself the subject of court approval or direction. In such circumstances the Court's duty to "keep faith" with its own process would loom as a very significant factor. Thus, it seemed to me that the overall position was that a court should, as in Van Hool, take whatever measures are best designed to secure the largest amount of money for the liquidation save that, to the extent that any aspect of the process leading up to the application for the Court's approval had itself been the subject of court approval or direction, the Court should lean very heavily in favour of keeping faith with that process and its results. 5.8 In relation to that latter consideration it seemed to me that it would require very exceptional circumstances for the Court to countenance a deviation from the consequences of a process which the Court itself had approved or specified. However, in saying that it also seemed to me that careful consideration must always be given to the precise terms of the process which the Court has either approved or specified to determine whether it can properly be said that such a process had brought about true finality so that a court, in permitting a further bid to be made, might be taken to be deviating from a process which it itself had either approved or specified. 5.9 If the Court has approved or specified a process which is, in its terms, clearly designed to lead to finality and assuming that the process has progressed in accordance with the Court's order, then it seems to me that the situation is analogous to that which occurred in Hibernian Transport and the Court should not reopen the process even if it would appear that a higher bid might be available. Where, however, either the Court has not mandated any particular process at all or where there are sufficient factors which can lead to a proper conclusion that a court mandated process can not, in accordance with its own terms and having regard to the facts, be properly said to have led to finality, then the Court should take whatever action is required which is designed to maximise the return to the creditors. In those circumstances I was not satisfied that the submissions made on behalf of either the liquidator or Demirca, on this point of principle, were correct. The mere fact that Demirca might be willing to offer more would not, in itself, be a sufficient basis for the Court refusing to sanction a sale which derived from an unimpeachable result at the end of a court mandated process designed, on its own terms, to bring finality. For those reasons I am satisfied that the trial judge was correct, at least in general terms, in the approach which he adopted. The real question which properly had to be addressed by the trial judge (and which has to be addressed by this Court on appeal) is as to whether the bid by Midland on the second round can properly be characterised as resulting from unimpeachable compliance with a court mandated process designed to lead to finality. If it was, then the Court was required to approve that bid. If it was not, then the Court was required to consider what action to take in the best interests of the creditors. I, therefore, turn to the issue of whether the process was unimpeachable. 6 Was the Process Unimpeachable? 6.2 In assessing the weight to be attached to such technical deficiency it is relevant to consider the point made by the trial judge to the effect that, even without the cash element, Midland's bid was still for a sum higher than that contained in Demirca's bid. On the other hand, one of the sensible stipulations in the Van Hool order was that there be a signed contract. What sum should such signed contract specify? It seems clear that each party, if they were to be strictly speaking compliant, should have made available to the liquidator a contract which would be signed by them and, thus, provided that their bid was the highest, could create immediately binding legal obligations simply by the liquidator also signing the contract in question (with the Court's approval it required). The difference, although admittedly small, between the amount of money for which adequate evidence of availability had been provided prior to the bids closing and the bid itself is of somewhat greater materiality when seen in that context. 6.3 So far as the "condition" set out in Midland's bid is concerned, it seems to me that somewhat like considerations apply. The draft contract, as signed by Midland, did not include a list of equipment and the like. Strictly speaking, in accordance with the Van Hool order, there should have been a contract signed by both parties which was complete in all respects and which could form, without amendment, the contract to be approved by the Court. The absence of such a signed contract created, in my view, a greater difficulty in the context of the specification in the Midland bid concerning clear title and equipment and software. If those matters were fully dealt with in a contract which Midland had signed prior to handing in their bid, then it might well be possible to conclude that the stipulation in the bid did no more than confirm matters which were already in the contract in the first place. However, the absence of a pre-signed contract in full form makes that stipulation potentially more significant. 6.4 In addition, it must reasonably be asked as to what the intention of Midland was in seeking to include the stipulation in question. Apart altogether from the process in this case, if a party were to include such a condition in a bid in any process and if a dispute were to arise as to the proper interpretation of any contract resulting from the process concerned, then doubtless argument would be put forward that the relevant sentence must mean something, for if it was not intended to alter that which would otherwise be the legal position why then, it would be argued, was it included in the first place? The relevant sentence is, therefore, in my view, of somewhat greater materiality than the trial judge found particularly when viewed in the context of the fact that the signed contracts, which the trial judge had required in the Van Hool order, were not present or at least present in proper form. 6.5 Finally, it seemed to me to be necessary to assess the extent to which the Van Hool order itself necessarily contemplated a final process in which the Court would, in reality, have no further function other than the formality of approving the highest compliant bid. As indicated earlier, it seemed to me that the underlying principle is that a court is required to keep faith with a process which is, in its terms, one designed to lead to absolute finality and where the process specified or approved by the Court is carried out in an unimpeachable way. In that context it is necessary to look at the order itself. 7 The Van Hool Order
2. the Provisional Liquidator is entitled to accept the highest bid tendered which is cash backed and for the avoidance of doubt the Provisional Liquidator is entitled to reject a bid not accompanied by a bank draft or its equivalent or a letter from a senior official from a bank of standing confirming that the funds are available for immediate transfer to the Provisional Liquidator on completion of the contract for sale. 3. that the matter stands adjourned to this Court for final approval 4. the motion herein stands adjourned to this Court on Tuesday 29th day of April 2014 at 10.45 a.m. Liberty to apply to the duty judge” 7.3 For example, the use of the phrase “the Provisional Liquidator is entitled to accept” does not necessarily lead to the conclusion that the Provisional Liquidator should or must accept the highest bid tendered in compliance with the order. Further, finality is not conveyed in the fact that it is stated that the liquidator is “entitled to reject a bid” not accompanied by evidence that the funds are available for immediate transfer, but does not state that the liquidator must reject such a bid and, indeed, as a consequence, accept the other. The Court retained the right of “final approval”, which also tends to negate any intention of absolute finality. 7.4 While there can be no doubt but that the Van Hool order was designed to seek to bring about very early finality to the bidding process, it nonetheless remains the case that the order, as actually made, does not quite go so far as to rule out any potential future involvement of the Court other than the mere formality of approving the sale by the liquidator to the highest compliant bidder. 7.5 Against that background it was next necessary to consider the consequences of the conclusions already addressed. 8 The Consequences 8.2 Second, the Midland bid was, while very close to totally compliant, deficient in a number of ways which cumulatively (and, in particular, taking into account the absence of a proper signed contract) created a situation where it was not possible to conclude that the process directed by the Court had been completed in an unimpeachable way. 8.3 Third, having regard to the fact that Demirca had not, itself, provided an appropriate signed contract to reflect its own new bid and also that the signed contract on the Demirca side suffered from some of the same infirmities which have been identified in respect of Midland, the process was not unimpeachable on the Demirca side either. In the light of that factor taken together with the other factors and the fact that Demirca did not seek to argue that its earlier bid should be regarded as the only compliant bid and, thus, accepted, I came to the view that the Court should reopen the process in the manner identified earlier in this judgment. 9 Conclusions 9.2 For the reasons which I have also addressed, I was not ultimately satisfied that either the process directed, having regard to the terms of the Van Hool order, or compliance with that process, was sufficiently final and unimpeachable so as to require the Court, in keeping faith with that process, to regard the result of that process as binding. 9.3 For those reasons, I was satisfied that, in the circumstances of this case, the appropriate course of action to adopt, in fairness to all of the parties and having regard to all of the circumstances leading to the matter being before this Court, was to permit one further round of bidding.
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