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Examiner had fiduciary duty to keep a record of costs and expenses
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High Court, in a claim by an examiner after three company had lost court protection and been wound up: (a) determines that the examiner was entitled under the relevant legislation to remuneration, costs and expenses in priority to claims by the creditor of the companies; (b) rules that unpaid work by the examiner should not be taken into account in determining the remuneration, costs and expenses to be paid; and (c) finds that the examiner had a fiduciary duty to the companies and their creditors to keep a record of costs and expenses, such that any exercise involved in justifying his claim could not be visited on them.
Application pursuant to s. 554 of the Companies Act, 2014 - approval and payment of the remuneration and outlay and legal costs of an examiner - priority of such expense - certification by examiner - s. 529 of the Act of 2014 - three connected companies - liquidation of major contractor - debt of €8 million to companies - petition for examinership - court protection granted - prospect of survival - third party funding - protection removed - companies wound up - applications by examiner - application that liquidator be at liberty to retain and pay over sums claimed by examiner - application resisted by creditor - priority issues - whether examiner’s remuneration and costs rank ahead of the certified liabilities - onus on examiner to justify his claim - relevance of unremunerated work - relevance of cost of justifying the claim - fiduciary obligation of insolvency professional to justify claim for remuneration, costs and expenses - prolongation - whether examinerships should have been brought to an end sooner - apportionment.
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