Win, lose, settle, mediate. Corporate disputes can resolve several ways. But for Gerard Feehily, a director of a company called Granja, the end was abrupt and highly unusual.

After three days of cross examination by lawyers for Ulster Bank in the Commercial Court in Dublin, he was rushed directly by ambulance from the witness box to hospital. 

Perhaps unsurprisingly Granja’s case, aimed at enforcing the company’s purchase of a €1.5 million plot of land at the proposed site of a data centre in Kilpedder, Co Wicklow, was immediately withdrawn. 

But even before the arrival of the ambulance, matters had taken a strange turn.

A handwriting expert had cast doubt on the authenticity of signed declarations of trust, important property documents that were relied upon in the proceedings. Specifically at issue was the purported signature of a solicitor, since deceased. 

Ulster Bank, which claims a lien on the land over alleged unpaid loans on the vendor’s side, had done some detective work and produced specimen signatures of the same solicitor drawn from filings in the Companies Registration Office (CRO). The handwriting did not appear to offer a match. 

Feehily, an accountant, was not accused of any impropriety. Nobody in the case had actually witnessed the impugned documents being signed. But the judge hearing the case, Justice Robert Haughton, found there was a “significant possibility” a criminal offence had been committed.

Then Feehily became ill.  On the 16th October, after five days at hearing, Granja’s four year old claim against Ulster Bank, its receivers and the land’s owners Brian McDonagh, Kenneth McDonagh and Maurice McDonagh came crashing down. 

Granja, it claimed, was nothing more than a “front” for Brian McDonagh who had surreptitiously tried and failed to buy back the 82-acre Kilpedder site for a fraction of the loan value.

Much later the company would claim Feehily did not have its permission to quit the case.

The court awarded Ulster Bank its legal costs in full but the McDonagh brothers did not make a costs application. While listed as defendants in the action, they had opted not to contest the case.

The bank, separately seeking judgment for €22 million in allegedly unpaid loans against the McDonaghs, said there was a very simple explanation for their inaction.

Granja, Ulster claimed, was nothing more than a “front” for Brian McDonagh who had surreptitiously tried and failed to buy back the 82-acre Kilpedder site for a fraction of the loan value.

After the case ended, Granja’s involvement in the dispute went off the boil. Until a series of events caused the company to collapse last July in exceptional circumstances.

*****

As a 59 year old businessman, Brian McDonagh has spent much of his career flying under the radar. A glance through records in the Companies Registration Office (CRO) shows a history of mostly defunct enterprises servicing the building trade; Car Coolair Ltd, Rink Air Conditioning, Freetron Global, Heat Right Now. 

That changed in 2016 when he launched a High Court judicial review of to An Bord Pleanala’s decision to grant Apple planning permission for the first phase of an €850 million data centre in Athenry, a mammoth project supported by the government and various organs of state.  

McDonagh, along with two other challengers who took on the tech giant’s bumper plans, was propelled into the spotlight. But not without controversy. Typically, being granted leave to bring a judicial review is a straightforward legal hurdle to jump. But McDonagh’s case was thin. 

For one, he was late to the party. It emerged in court that he had made no attempt to engage with the planning process when it was originally before Galway County Council. 

He also cast his opposition to the project in environmental terms, citing local and conservation interests against the destruction of forest in Co Galway, using a Dublin address.

But by the time the Apple saga sputtered to a close, McDonagh was by no means the only loser. The multinational scrapped its Galway plan and with it went the promise of hundreds of jobs to the West.

His late timing and cross-country location from the proposed data centre worked against him and his application was thrown out.  Justice Paul McDermott found he did not have the requisite legal standing to mount a challenge against An Bord Pleanala’s decision.

More remarkable was the revelation in the course of the leave hearing that McDonagh was a director and shareholder of Ecologic Data Centre, a firm which had, under a different name, spent more than a year trying to market the disputed Kilpedder lands to Apple as an alternative site for the data centre. McDonagh had not voluntarily divulged his own vested interests.

Unimpressed with this display of disingenuity, the judge criticised McDonagh’s “non-disclosure and lack of candour”.

The businessman’s reputation took a very public knock.

But by the time the Apple saga sputtered to a close, McDonagh was by no means the only loser.  The multinational scrapped its Galway plan and with it went the promise of hundreds of jobs to the West. While the complaints of the other two local Apple objectors went all the way to the Supreme Court, events rendered their cases moot.

*****

In recent years, animals have grazed on the excellent pastureland, situated off the N11 between Newtownmountkennedy and Kilpedder. But back in 2007, Brian McDonagh and his brothers, acting in partnership, had big plans for the 82-acre site which they sought to develop with the aid of a loan of just under €22 million from Ulster Bank.

Their ambitious aim was to construct a 700,000 square feet data centre, the largest development of its kind in Europe. In 2010, The Wicklow People reported that the project would provide 800 construction jobs, 200 permanent IT jobs and up to 800 support positions. Construction was due to start in 2011.

While they managed to secure planning permission for the data centre from Wicklow County Council in 2010, events took a twist when the National Roads Authority (NRA) and other objectors appealed against the decision to An Bord Pleanala.

The arrangement quickly broke down. Both camps claimed the other had reneged on its obligations. The following year, the bank appointed receivers over the lands, a move Brian McDonagh tried to stop.

The NRA subsequently had a change of heart but An Bord Pleanana said the letter from the Authority withdrawing the objection was not received in time. That meant the Bord’s five to two majority decision refusing permission for the development stood. A case revolving around the proper interpretation of the relevant planning act wound up in the Supreme Court as a matter of public importance. The result was a ruling in favour of Ecologic being allowed to develop the giant technology hub.

But by then, much had changed. The McDonaghs had run into money woes.

In 2013, the brothers entered into a compromise agreement with Ulster Bank over their liabilities, some unrelated to Kilpedder.  While the terms of the deal are still a matter of legal dispute, it appears they agreed to willingly assist the lender in recovering as much of the loans as possible. In exchange, the bank postponed enforcement of the debt. This involved putting the site on the market.

Whatever the exact terms of the arrangement, it quickly broke down. Both camps claimed the other had reneged on its obligations. The following year, the bank appointed receivers over the lands, a move Brian McDonagh tried to stop.

He went to court on the 1st October 2014 and secured temporary orders on an ex parte (one side only) basis stopping the bank from taking any further steps to enforce the loans.

His primary complaint was that the lender had breached the compromise agreement by refusing to consent to the sale of the Kilpedder lands to a company named Granja Limited whose offer of €1,501,000, cited by McDonagh, as the highest available bid, had been accepted by him and his brothers the previous June.

Like the Apple case that followed, McDonagh was caught out being less than candid. The court showed its disapproval by overturning the earlier ex parte order.

When the case returned to court three weeks later, both sides were in attendance. The bank explained its reservations over the Granja deal. The company was a purpose-built vehicle set up the previous September and one of its directors, Tian Su Ooi, an obstetrician living in Malaysia was the brother of Brian McDonagh’s girlfriend Yeoksee Ooi, making the sale appear somewhat circular in nature.

This consequential fact had not been disclosed in court at the first sitting. 

Like the Apple case that followed, McDonagh was caught out being less than fully candid. The court showed its disapproval by overturning the earlier ex parte order. Justice David Keane concluded: “While I do not go so far as to find that the non-disclosure at issue was deliberate, I am quite satisfied that it involved a culpable failure on the part of the plaintiff.”

The bank’s receivers, accountants Paul McCann and Patrick Dillon of Grant Thornton, remained in place at Kilpedder.  

In the meantime, Granja pursued its ill-fated abandoned action against the bank and the McDonaghs, seeking specific performance of the purported €1.5 million land acquisition it had signed up to with the brothers.

Having withdrawn its suit on the Kilpedder lands in October last year, Granja bowed out wounded from the row.

But it wasn’t over. The firm still had designs on the Wicklow site. Post-trial, the company reached a side agreement with the McDonaghs that the Kilpedder sale would remain live. 

The remaining legal hurdle would be in convincing a court that Ulster Bank had agreed to the sale under terms allegedly agreed in the 2013 compromise agreement.

The bank denies ever giving such consent.

And then there was the matter of costs.

The high cost of litigation

Ask any lawyer or litigant: High Court cases are an expensive business. Costs rise depending on the nature of the claim, going from mildly jaw dropping to heart tightening.

At the base of the pyramid are a myriad of public law cases: child care proceedings, asylum law, Article 40 inquiries into the lawfulness of a person’s detention and all the various other types of judicial reviews challenging the decisions of public bodies. In the middle, are a hodge-podge of chancery, non-jury and personal injury actions. 

And then at the top are the corporate battles fought in the forum of the fast-track Commercial Court, where the threshold for entry is a claim worth over €1 million. Efficiency comes at a price.

Granja’s dispute fitted the criteria for entry to the commercial list and the legal bills racked up accordingly.

Granja was in trouble. That much was obvious even to a casual observer. The company had not filed accounts since 2015 and was set to be struck off by the CRO.

By the time the firm withdrew its claim on the fifth day of trial, Ulster Bank’s legal bill stood at €691,669.  The figure was shaved down by the taxing master on appeal last June to €569,404. As a share of the bill had already been paid upfront by Granja, thanks to a pre-trial security for costs order in favour of the bank, the due amount was €322,449.

A letter of demand for the outstanding sum was issued on the 7th June last by AMOSS Solicitors, the law firm representing Ulster Bank. Granja was warned that failure to discharge the bill in full within 21 days would result in a High Court wind-up petition being brought against the company.

Granja was in trouble. That much was obvious even to a casual observer. The company had not filed accounts since 2015 and was set to be struck off by the CRO.

The 21 day deadline came and went. When the demand on the debt had expired, the bank was as good as its word and on July 2nd, it moved a petition to force the company into liquidation.

The case was listed for hearing in the High Court on the 22nd July. Shane McCarthy of KPMG was lined up to take on the role of liquidator. Everything was set to proceed in an orderly fashion for the bank.

Until Granja threw a curveball. On the 3rd of July, just a day after the bank’s strike to liquidate the business, the company appeared to jump the gun on the petition.

AMOSS Solicitors, acting for Ulster Bank, got notification that Granja was convening an Extraordinary General Meeting (EGM) of creditors on the 17th June in order to voluntarily wind-up the company. The business had its own nominee as liquidator, an accountant named Barry Forrest. The meeting was to allow creditors vote on his appointment.

The notice was issued by Forrest following consultation with Yeoksee Ooi, Brian McDonagh’s spouse, who had joined her brother Tian Su as a director of the company in 2017. Like Tian Su, her professional background was in medicine. She, however, is resident in Ireland, not Malaysia.

According to CRO filings, Granja is owned by the Kilpedder Settlement Trust whose beneficiaries are said to be the siblings of Tian Su and Yeoksee Ooi.   Kimeon Trustee Services, run by the former Granja director Gerard Feehily, acts as trustee. 

A meeting of creditors

When solicitor Gavin Simons, head of the commercial litigation team at AMOSS, arrived at the creditors’ meeting at the Crown Plaza Hotel in Blanchardstown on the 17th July, he immediately began to record the proceedings. A transcript was later produced in court.

Simons was attending the meeting in a proxy capacity for his client Ulster Bank and for Connolly Lowe legal costs accountants (owed money by Granja for their services before the taxing master). He had several axes to grind. 

His main aim was to try and block the appointment of Forrest, the company’s nominee for liquidator, in favour of his alternate nominee Shane McCarthy. A key issue was whether the company would be able to rally enough support from other creditors to push their man over the line regardless of the bank’s opposition.

Nine days before the EGM, Simons had emailed Ooi looking for a list of Granja’s creditors. She replied two days later on the 10th June, naming four parties: Ulster Bank, Connolly Lowe, Tian Su and McDonnell Dixon Architects.  

The AMOSS partner also had serious reservations about the legitimacy of the big-ticket debts the company had listed in favour of Tian Su, architects McDonnell Dixon and, most of all, the McDonaghs.

On “mature recollection”, as Simons later put it on affidavit, she got in touch with him again the following day listing another three creditors of the company she had not mentioned first time round: Brian McDonagh, Maurice McDonagh and Ken McDonagh.

Each was allegedly owed half a million euro from the €1.5 million Kilpedder land sale.  “If genuine creditors of the company, it is quite surprising that they were not included in the initial listing, particularly Dr Ooi’s spouse,” he said.

Ooi described it as an oversight. “I wasn’t thinking,” she later said in response.

Connolly Lowe’s debt was in the low thousands giving the practice little by way of heft in a vote. But the firm had not been paid at a time when Granja was on the brink of insolvency. Simons thought an investigation into whether the company directors should be held personally responsible for fraudulent or reckless trading might be appropriate in liquidation.

He also found it curious that Brian McDonagh had contacted Connolly Lowe on the day of the taxation hearing in June. He wanted to explore exactly what role the businessman played in relation to the company. McDonagh’s position was that he did not have any involvement in the management of the business. Simons was convinced otherwise.

The AMOSS partner also had serious reservations about the legitimacy of the big-ticket debts the company had listed in favour of Tian Su, architects McDonnell Dixon and, most of all, the McDonaghs. If legitimate, these six figure creditors would easily outweigh Ulster Bank on quantum in the vote to appoint a liquidator. 

McDonnell Dixon had been involved in obtaining planning permission for a data centre on the rezoned lands at Kilpedder, racking up fees of around €860,000. There was no question of wrongdoing on the part of the practice which had been hired by Ecologic Data Centres, a separate company owned and run by the McDonaghs. It was the handling of their fees that was in issue.

In a witness statement before the court in the aborted Granja proceedings, practice architect Nigel Jones said former company director Ger Feehily had given him a conditional undertaking that if Granja purchased the lands and relied upon the planning permission obtained, the firm would discharge the architectural fees.

But Simons believed, based on an earlier averment made by Ooi in separate proceedings, that the contingency sum promised was at most €100,000, if it existed at all.

The money allegedly owed by Granja to Tian Su, the remnants of a €1.6 million loan towards the Kilpedder investment, was stated to be in the order of €996,674. Again this was problematic as the debt was allegedly routed through Tian Su’s collapsed UK company Balcora Holdings and not him personally. Directors of Balcora had included Ger Feehily and Brian McDonagh.

The bank’s objection to the McDonaghs being listed as creditors was of another order of magnitude. As far as the lender was concerned, Granja had given up on any entitlement to acquire the lands once it withdrew its legal action for specific performance on the sale.

“Coaching”

In the chair’s seat at the Crown Plaza on June 17th was Yeoksee Ooi, assisted by a solicitor. In total, there were 11 people in attendance including the McDonaghs, the two proposed liquidators, a financial advisor to the firm, a Revenue representative and Simons.

Some of the exchanges were choppy and colourful. McDonagh’s presence and behaviour was later used by the bank as evidence that he was a shadow director who controlled the company behind the scenes. 

Simons was there to challenge everything, from whether the EGM had been properly convened to apparent irregularities in the company’s accounts. 

On arrival he was provided with a statement of Granja’s affairs. He was surprised to see Connolly Lowe’s name had been excised from the creditors’ list altogether. Ooi, as chair, explained that this had been done on the advice of Forrest, the company’s nominee for liquidator, on the basis that the costs’ accountants had not submitted an invoice.

This was disputed by Connolly Lowe who had a copy of the invoice document. Ooi would later say on affidavit that the demand for payment on the 7th June had been issued prematurely, given that the taxation of costs hearing took place three days earlier and both parties had 14 days to raise objections if they were unhappy with the outcome. No such appeal was lodged. As it turned out, Connolly Lowe was granted a proxy vote at the meeting.

Ooi insisted she was unaware of the bank’s strike when she phoned her brother in Malaysia to pull the plug on the insolvent business. This would later be accepted by the bank.

At times, when Ooi seemed uncertain about company matters, McDonagh stepped in to answer questions about the company’s affairs. Simons said the businessman deliberately posed rhetorical questions out loud that happened to contain useful nuggets of background information that Ooi could pick up on.

Simons was not the only one to take issue with McDonagh’s behaviour. The Revenue official in attendance at one point asked Ooi’s solicitor to note that she was being coached by her spouse. 

In a protracted exchange between Simons and the proposed liquidator, accountant Barry Forrest, it slowly emerged that he had been approached for the role by McDonagh and that he had previously worked for the businessman winding up one of his companies, Glow Heating, in 2016.

Simons was far from reassured.

Gathering information for Ulster Bank’s upcoming day in court, he began to probe whether the creditors’ meeting, called on the 2nd July, had been triggered as a reactionary move to scupper the compulsory wind-up petition brought by his client.

Ooi insisted she was unaware of the bank’s strike when she phoned her brother in Malaysia to pull the plug on the insolvent business. This would later be accepted by the bank.

Simons was also curious how director Tian Su had remotely approved the company’s statement of affairs the day before the meeting as he did not use email. When Ooi’s lawyer suggested she might have sent it as an attachment in WhatsApp, McDonagh interjected to say he had seen his spouse photographing the document. However, he later accepted that he had not seen her send it.

Asked for an explanation as to why company accounts had not been filed since 2015, Ooi said the court proceedings meant certain business matters had been put on hold. She said she was aware that the firm was on a list to be struck off and accepted she not do anything to stop that happening. She was subsequently informed by the CRO that Ulster Bank had issued instructions to maintain its live status on the register.

McDonagh’s debt

By far the biggest bone of contention at the meeting was the €1.5 million allegedly owed by Granja to the McDonaghs, in an even split three ways.

Explaining the position at the EGM, McDonagh said he and his brothers had been obliged, under instruction from Ulster Bank, to sell off the asset before July 2014. 

Granja was the highest bidder offering a price of just over €1.5 million for the Kilpedder lands. He said the money was still owing. McDonagh assured Simons that when it was paid, the funds would be passed on to Ulster Bank in service of his and his brother’s debts.

But Simons, or Simmons as McDonagh referred to him at the meeting despite being corrected, refused to accept his bona fides as a creditor in “any way, shape or form”, calling the whole thing a “charade”.

For a start, McDonagh had previously given evidence under cross examination in the High Court that he owed Granja €608,502, making him a debtor – not a creditor – of the company. Yet this was not reflected in the company’s statement of affairs.

At the meeting, McDonagh backtracked from his earlier position in court, maintaining that he had received the loan from Tian Su personally and not Granja. When this was contradicted by Simons reading an extract from the court transcript, McDonagh accused the lawyer of being selective in his quotes, adding that he didn’t want to get into an “argy bargy”.

Simons persisted, noting that the money had been paid out to the businessman in the name of Granja Ltd. 

The meeting then took a heated turn. McDonagh let fly at the bank. “This is not your pedestal,” Simons told him.

But the businessman continued, accusing Ulster Bank of coming to his office when he had no debt owing and stripping him of his 40-year-old company Glow Mechanical. He alleged the bank stole €500,000 worth of stock and left eight people on the live register. 

At the end of his tirade, he claimed to have recently found a document showing a full and final settlement of his and his brother’s debts to Ulster Bank.

This was in direct opposition to what he had said minutes earlier in the meeting about using the proposed Kilpedder sale to Granja to pay off €1.5 million on the brothers’ loans. 

McDonagh would not back down. Nor would Simons.

In the exchange that followed, it emerged the businessman had previously threatened to file a complaint against Simons with the Law Society but it seems he did not go through with it.

The meeting drew to a close. Despite Simons’ objections and his request for Forrest to stand aside, majority rules meant the company nominee was confirmed, by vote, as liquidator.

But the bank had another card up its sleeve.

The court case

On the 31 July, the last day of the legal term before the long summer break, Ulster Bank’s petition to replace Forrest with a court appointed liquidator came before Justice Robert Haughton. “The facts here are very special and unique,” said Rossa Fanning, senior counsel for the bank.

Having sat through Granja’s earlier abandoned case, the judge was familiar with the background.

At the beginning of the hearing, the court registrar asked if there were any creditors of the company present. The attendance of counsel for the Revenue Commissioners was noted. The court heard Granja had not filed corporation tax or Vat returns and that Revenue, owed a yet to be determined sum, was appearing in support of Ulster Bank’s petition to replace Forrest as liquidator with Shane McCarthy of KPMG.

Ooi’s legal team, solicitor Robert Dore and barrister Hugh McDowell, also made their presence known to the court. Ooi sat on a bench at the back of the courtroom, two seats down from her spouse Brian McDonagh.

“Commercial morality?” Justice Haughton asked. “That’s an interesting concept. Has it been discussed elsewhere?” he enquired, prompting several fleeting smiles in the courtroom.

Fanning began setting out the relevant British and Irish case law he intended to rely upon as precedent for his wind-up motion. He said the court had a discretion to replace a voluntary liquidator, particularly in circumstances where the incumbent appeared to have connections with the company.

It was not enough that they were independent, they must be seen to be independent in their investigations. He said liquidations involving inter-group transactions may require special scrutiny and creditors should not be left feeling cynical or with a strong sense of grievance at liquidation work conducted by a nominee associated with a company.

Fanning said it was a matter of “commercial morality” which intrigued the judge.

“Commercial morality?” Justice Haughton asked. “That’s an interesting concept. Has it been discussed elsewhere?” he enquired, prompting several fleeting smiles in the courtroom.

Fanning explained it related to the general principle of fairness.  “I don’t have to prove any fraud. I don’t have to ask the court to make a finding that there has been wrongdoing,” he continued. “Or that someone has forged a document. Or that the company is a front for Brian McDonagh. All I’m asking you to find is that I’ve reached a threshold that there are serious issues or concerns under those headings to warrant the appointment of an independent liquidator.”

He also stressed that Ulster Bank had no criticism of Forrest, a qualified accountant, or of anything he had done since his appointment. His probity was not in question. The Ulster Bank petition to wind up the company had been issued prior to him becoming liquidator. His introduction to the case was described as “unfortunate”.

Fanning pointed out that aside from Revenue, the only other party represented in court was Ooi whose status in objecting to the application was that of company director. “This is not a case where one creditor appears on a petition swimming against the tide. The only person opposing the petition is not a creditor at all,” he said.

Ulster Bank’s view about the voluntary liquidation was that the company had jumped before it was pushed. On the day the bank issued a compulsory wind-up petition, Granja held a 6am directors’ meeting by phone to dissolve the voluntary liquidation of the business. Ooi and McDonagh were on holiday with their sons in Portugal. Tian Su Ooi was in Malaysia, which is several hours ahead. 

It was accepted that the call was not a reaction to the bank’s petition but to the precursor of the petition, the letter of demand for €332,449 in taxed court costs for the abandoned court action.

An affidavit filed by Ooi was deemed to be replete with hearsay information that only McDonagh could know. “He is a ventriloquist in legal terms; speaking through her,” Fanning submitted.

Fanning gave a mostly uncontested rehash of the alleged facts of the case concluding: “Granja was a device by Brian McDonagh to try and pull the wool over the receiver’s eyes and buy back the Kilpedder lands.”

The meat of Ulster Bank’s application was the affidavit of solicitor Gavin Simons claiming McDonagh was a shadow director – a view compounded by the businessman’s presence and action at the creditors’ meeting where he allegedly sought to correct and coach the chair in her answers.

The fact that McDonagh had been the subject of repeated unfavourable comment by the courts over the years was raised against him, including a case involving Bank of Scotland, where the judge described his evidence as “not reliable”. 

For a man buying development lands in Co Wicklow, Tian Su’s studious remove from the jurisdiction, much less the proceedings, was also noted by the bank’s lawyers. 

An affidavit filed by Ooi was deemed to be replete with hearsay information that only McDonagh could know. “He is a ventriloquist in legal terms; speaking through her,” Fanning submitted.

Certainly the sworn document had references to her spouse ringing Forrest, an insolvency practitioner, for advice. She says McDonagh also asked Forrest to carry out the statutory steps to convene a creditors’ meeting. This included putting a notice in Iris Oifigiuil and posting advertisements in two daily Irish newspapers, the Irish Daily Star and the Irish Daily Mail.

Ooi claimed Simons had overstated the role of her partner McDonagh and that it was her brother Tian Su, a “man of considerable wealth” who held the reins of the company. And he wanted Forrest to remain in situ. In her view, the corporate or private provenance of the €1.6 million loan to Granja was of no concern.

“I asked my brother to lend the money. He lent the money and he is a creditor of the company,” she said. Simons had tried to “muddy the waters” about his indebtedness, the court heard. He was “simply wrong”.

She said her partner Brian McDonagh had acted in a protective manner towards her at the creditors’ meeting as she had been intimidated by the “aggressive approach” adopted by Simons. She claimed the Revenue was not a creditor of the company and had no entitlement to be there at all.

On his feet her barrister Hugh McDowell said the bank’s attacks on McDonagh were irrelevant distractions. He was naturally involved in the company’s affairs by dint of being Ooi’s partner, the court heard.

McDowell said in the circumstances it was “the most natural thing in the world” for McDonagh to assist her in finding a liquidator. To her credit, he added, she had not tried to deny it. “I don’t think it makes for compelling evidence of a shadow directorship,” he said.

He submitted that Ooi had been at the creditors’ meeting on a proxy basis for her brother Tian Su and not in her capacity as a company director. In terms of quantum, his debt was by far the biggest. If it was found to validly exist, then no reconfiguration of the company balance sheet by Ulster Bank could change the fact that his proxy vote would carry on who would take the job as liquidator.

Was the money lent to Granja by Tian Su or by his collapsed company Balcorra? That is what it boiled down to, he argued. The other objections raised by the bank could have no determinative effect. 

McDowell said his client believed the loan was transmitted through Balcorra from her brother and in that respect had no concern about where it came from. 

“Tian Su Ooi should be seen as an independent creditor. He lent the money to the company at arms’ length. He is a bona fide creditor entitled to be heard. He has voted that Barry Forrest should be appointed.”

Ooi was willing to meet the bank half way, the court heard. Moments before the case began, she had proposed that Forrest and McCarthy could work together as joint liquidators.

As a last ditch attempt at compromise, it was rejected out of hand by Ulster Bank.

Deciding the case on the spot, Justice Haughton came down, without hesitation, on the bank’s side.  Forrest was out, McCarthy was in.  The judge agreed that there were question marks over whether Tian Su and McDonnell Dixon architects could properly be described as creditors. He said there was a very significant degree of uncertainty attached to those seeking debts.

In the judge’s view, the Brian McDonagh situation alone gave rise to “clear and special” concerns.

Elaborating on the background to the case, he noted that the court had previously considered freezing the €1.5 million loan to Granja by Balcora to acquire the Kilpedder lands – until it emerged the monies had already been put to use.

Haughton noted that over €800,000 had been paid out to Kimeon Accountants, the practice run by Feehily while McDonagh had received over €600,000 which he had accepted in sworn evidence had come from Balcora.

While offering no criticism of Forrest, Justice Haughton found his past association with Ooi and more particularly Brian McDonagh made his position as liquidator untenable in the eyes of Ulster Bank. 

He said the issues that loomed large in Simons’ affidavit, McDonagh’s claim of being a creditor of Granja and his alleged activities as a shadow director of the company would be “very much under investigation” in the winding up of the company.

Furthermore, the evidence and submissions adduced during the various lawsuits meant the liquidator must present a report to the Office of the Director of Corporate Enforcement in order to allow the watchdog consider bringing restriction or disqualification proceedings against the company’s directors.

Ulster Bank had prevailed.

With KPMG’s Shane McCarthy in situ, the court ordered the preparation of a new statement of affairs.

Neither side was available for comment.

Justice Haughton was updated on the status of the dispute last week. A further hearing has been scheduled for December.