A petition to wind up retail giant Dunnes Stores has been withdrawn at the Commercial Court after the company paid €21.6m owed for a shopping centre development in Kilkenny.
Nama had authorised Holtglen Ltd, which is insolvent, to bring the petition after Dunnes failed to pay despite an arbitration award made against it, followed by a judgment order against it at the Commercial Court last March.
Holtglen claimed its insolvency arose from the non-payment but Dunnes said it was unwilling to pay on several grounds including its concerns about the viability of the centre at Ferrybank, Kilkenny.
When the matter came before Mr Justice Peter Kelly yesterday, he was told by Maurice Collins SC, for Holtglen, he wanted to withdraw the petition as Dunnes had paid the money owed on Thursday evening.
The money should have been paid sooner, there was “no excuse” why it was not, and while his side regretted having to bring the petition, it had to do so to achieve compliance, he said.
Brian O’Moore SC, for Dunnes, said the court was aware of the reasons why the monies were not paid. Those reasons may be good or bad but they were “genuinely held”, he said.
Mr O’Moore said he had express instructions that Dunnes had intended no discourtesy to the court. The judge said he was glad to hear that because, on one view, the failure to pay could be regarded as a challenge to the court’s authority.
The matter was “not so simple” as the petition was for the benefit of all creditors of Dunnes, he added, and directed any other creditors be called.
There was no appearance by any other creditor and Mr Collins said none had indicated an intention to appear. The judge said there could have been no answer to the winding up petition in the circumstances of this case but, as the debt had now been discharged, Holtglen was seeking to withdraw the petition and he would permit it do so.
He was also told the issue of legal costs had been agreed between the parties.
Dunnes had previously said it is “robustly solvent” but was unwilling to pay the money to Holtglen on several grounds including its concerns about the viability of the centre at Ferrybank.
In letters to Nama CEO Brendan McDonagh, Dunnes chief Margaret Heffernan described the Ferrybank centre as “an unmitigated disaster”.
Nama wrote to Dunnes on Oct 30 warning, unless it paid €21.6m to Holtglen within seven days, Holtglen would petition to wind up Dunnes on grounds it was unable to pay its debts and/or it was just and equitable that it be wound up.
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