Personal insolvency practitioner failed to make appropriate disclosures in application for protective certificate

Motion by financial institution for an order setting aside an extension of a protective certificate granted by the Court ex parte in 10th February 2016 on application by the personal insolvency practitioner - whether the ex parte application was made with a lack of candour - in January 2012, the financial institution was granted liberty to enter final judgment against the debtor by the Master of the High Court in the sum of €8,469,490.43 - financial institution claims that the debtor remains indebted to it to the sum of approximately €9.5 million excluding costs, with interest - financial institution presented a petition that the debtor be adjudged bankrupt on 5th February, 2016 - the petition was adjourned on eight occasions on application by the debtor for the express purpose of enabling the Personal Insolvency Practitioner ("PIP") to apply for a protective certificate under the Personal Insolvency Acts 2012 - 2015 ("the Act") and seek to put in place a personal insolvency arrangement under the legislation - adjournments were contested - application was made to the Court for a protective certificate pursuant to s.95(2) of the Act on 3rd December 2015 - that order was made for the statutory period of 70 days from the date of issue - there is provision in the Act for the grant of a protective certificate to a debtor who establishes the statutory proofs - effect of the grant of a certificate is that during its currency the debtor is protected from any action or enforcement proceedings by his creditors - whilst a protective certificate remains in force a bankruptcy petition may not be presented - a protective certificate gives a debtor breathing space to come to an arrangement with his creditors - intention of the Oireachtas was to facilitate a debtor to avoid bankruptcy - court has the power to set aside a protective certificate - this is a concrete realisation of the constitutional imperative of fair procedure and arises from the presumption that the Act of 2012 is constitutional in its impact and effect - the High Court is exercising its full original jurisdiction in hearing any application under the Act of 2012 - any person whose interests are affected by the order may have a right to seek to set aside such an order - the application for an extension of the protective certificate was made on the grounds that the debtor be in the position to complete contracts for property developments in respect of which he hoped to recover the sum of almost €4m - grounding affidavit for the extension was sworn by the PIP - in the last number of months the debtor was cross-examined before the Master of the High Court and swore that he expected to recover a sum of approximately €1.4m in respect of fees owed to him - PIP, in his grounding affidavit for the extension, identified that a concluded contract had been made with a US finance company - letter from the US finance company's London solicitors exhibited in his second affidavit referred to 'potential' provisions and transactions - affidavit therefore failed to identify the true picture with regard to the projected source of funds - affidavit also valued the debtors share in a company at €2.76 million after tax with share sale options - debtor's statement of affairs from July 2015 valued these shares at nil - PIP suggested that the financial institution had been kept informed of progress - financial institution through its solicitors averred that there was no engagement by the PIP - financial institution has 65% of the debt and would have the power to veto any personal insolvency arrangement - PIP did not disclose his own view that the financial institution debt was not properly proved - PIP failed to make appropriate disclosure - court not convinced there was a genuine oversight on the part of the PIP - legislation imposes heavy burden on the PIP coming before the court seeking a protective certificate or an extension of one to act with the utmost good faith and frankness - order made setting aside the extension order made ex parte on 10th February, 2016.