THE HIGH COURT
			1998 No. 59 COS

IN THE MATTER OF CAVAN CRYSTAL GLASS LIMITED
AND IN THE MATTER OF THE COMPANIES (AMENDMENT) ACT, 1990

JUDGMENT of Mr. Justice Kelly delivered the 27th day of March, 1998. 

	On the 27th February, 1998 this Petition was presented pursuant to the provisions of Section 2 of the Companies (Amendment) Act, 1990, (the Act).  It seeks the appointment of an Examiner to Cavan Crystal Glass Limited (the Company).  It is presented by Neil MacKay and John Maher who describe themselves as Directors of the Company.
	The Company was incorporated on the 13th July, 1995.  It was used as the vehicle to purchase the assets of a company known as Cavan Crystal Limited which company was itself in examination for a period in 1995 and subsequently went into receivership.  The Company purchased the assets of Cavan Crystal Limited from its receiver.
	The Company employs about eighty people in the carrying out of its principal business which is the manufacture of crystal glass.  The main market for the Company's product is to be found in Ireland, the United Kingdom and the United States of America.
	It is clear that the Company is in serious financial difficulty and is unable to pay its debts.  It owes approximately £350,000 to the Revenue Commissioners.  Approximately two weeks prior to the presentation of the Petition, the Revenue Commissioners served a statutory demand on the Company pursuant to the provisions of Section 214 of the Companies Act, 1963.
	Ulster Bank Limited is the Company's principal banker.  It is owed approximately £734,000.  There is a further contingent debt of £200,000 owed to this bank in respect of a liability which the Company has to Bank of Ireland and which is guaranteed by Ulster Bank Limited.  The Company entered into an invoice discounting arrangement with Ulster Bank Commercial Services Limited.  Approximately £210,000 is outstanding on foot of that facility.
	On the 23rd February, 1998 Ulster Bank served a letter of demand in respect of its debt.  It was not met and on the 26th February, 1998 that bank appointed Padraic Monaghan as Receiver and manager over the property of the Company.
	Section 5 of the Act makes it clear that the presentation of a petition for the appointment of an examiner to a company places that company under the protection of the Court.  Section 5(2) of the Act spells out the effects of such protection.  One such effect is that a receiver appointed over any part of the property or undertaking of the company prior to the presentation of the petition may not (subject only to Section 6) act.
	The purpose of the provision of Section 5 is to afford the company protection.  It is important to bear this in mind in the application of the Act.  In the course of his judgment in In Re: Atlantic Magnetics Limited (1993) 2 IR 561, McCarthy J. said:-

	"It is, I believe, of great importance to bear in mind in the application of the Act that its purpose is protection - protection of the company and consequently of its shareholders, workforce and creditors.  It is clear that Parliament intended that the fate of the company and those who depend upon it should not lie solely in the hands of one or more large creditors who can by appointing a receiver pursuant to a debenture, effectively terminate its operation and secure as best they may the discharge of the monies due to them to the inevitable disadvantage of those less protected.  The Act is to provide a breathing space, albeit at the expense of some creditor or creditors".

That statement was approved by Finlay C.J. In Re: Holidair Limited (1994) 1 IR at 439 where he said in reference to that quotation:-

	"I am satisfied that this identification of the purpose of the Act is correct, and that it is consistent with the view of the Court expressed in a judgment which I delivered in that case, concerning specific questions with regard to the powers of an examiner which were raised before the Court".

	It is clear, therefore, from a consideration of the Act and the jurisprudence which has developed on foot of it that gone are the days where the fate of a company can be decided exclusively by a secured creditor.  Such a creditor may not appoint a receiver over the company whilst it is under the protection of the Court.  Such an appointment may, of course, be made beforehand and in such case, unless a petition is presented within three days of the appointment of a receiver, the Court is specifically prohibited from giving a hearing to a petition presented under Section 2 of the Act (see Section 3(6) of the Act).
	The case is made by Ulster Bank and the Receiver that this Petition has been improperly presented, has no validity and has not attracted the protection of the Court to the Company.  Moreover, they contend that this impropriety cannot be cured retrospectively.  It follows that the Receiver appointed by Ulster Bank is now and always has been free to act.  Since this point is of fundamental importance, I will consider it presently.  Before doing so, however, I should complete the dramatis personae who have appeared before the Court and the attitudes they have adopted.
	As is clear from what I have already said, the secured creditor, Ulster Bank, and the receiver appointed by it oppose the Petition.  The Revenue Commissioners have adopted a position of conditional neutrality.  Bord Failte, who are contingent creditors in the sum of £363,000, support the appointment of an examiner.  Ulster Bank Commercial Services take the same stance as Ulster Bank and oppose the Petition.  Not surprisingly the Bank of Ireland have not appeared since their debt of about £200,000 is guaranteed by Ulster Bank.  The Petition is also supported by four unsecured creditors who have furnished letters of support.  They are the Image Machine, Flo Gas, Healy Chemicals, and the Cavan Urban District Council.  The support of Flo Gas is conditional on trading terms being agreed with an Examiner if appointed.  These creditors are owed in all approximately £53,550.  Another unsecured creditor, namely, Cultured Collectables Limited, appeared through a director and opposed the appointment of an examiner.  The Petition is supported by the workforce through their works committee who have written a letter to that effect which has been exhibited.

THE VALIDITY OF THE PETITION
	The petition in the present case is described on its face as the Petition of the Directors.  It recites that it is the Petition of Neil MacKay and John Maher, both of whom are described as Directors.  Paragraph 4 of the Petition states that the Directors of the Company are those two named individuals.  Ulster Bank and the Receiver appointed by it both take issue with this statement.  The position is as follows.
	From the outset there were three Directors of the Company.  They were Neil MacKay (Mr. MacKay), Norville Connolly (Mr. Connolly) and Wallace McCoy (Dr. McCoy).

	The Petition recites that on the 26th February of this year, Mr. Connolly gave notice of his intention to resign as a Director.  No documentary evidence of this has been adduced.  However, the Petition has been verified by affidavit and there is no positive evidence to the contrary.
	Mr. MacKay contends that by then he was the sole Director of the Company because Dr. McCoy had already ceased to be a Director.  Whether that is so or not is very much in issue.  In any event, assuming for a moment that Dr. McCoy was not a Director on the 26th February, 1998, it is clear that Mr. Connolly's resignation as of then reduced the number of Directors to one.  Mr. MacKay contends that he then utilised his powers as sole Director of the Company to appoint the second Petitioner, John Maher, as the second Director of the Company.  His entitlement to do this, the validity of Mr. Maher's appointment and the regularity of this Petition all depend upon Dr. McCoy having ceased to be a Director of the Company prior to the 26th February, 1998.
	On thing may be said with certainty about Dr. McCoy.  He never resigned as a Director of the Company nor was any resolution passed by the Company removing him from such office.  It is contended that he ceased to hold office as a Director for either or both of two reasons.  First, it is said that on foot of an agreement of the 11th March, 1997 made between Mr. MacKay and Dr. McCoy, it was agreed that Dr. McCoy's shareholding in the Company would be acquired by Mr. MacKay.  It was a term of that agreement that Dr. McCoy would resign as a Director of the Company.  Mr. MacKay contends that he has performed his obligations under this contract and so Dr. McCoy is no longer a Director.  The second basis upon which it is said he has ceased to be a Director of the Company is because since March of 1997 he has allegedly played no role in the Company's affairs and this has triggered the provisions of Article 19(e) of the Articles of Association.  That Article is headed "Disqualification of Directors".  It provides that the office of a director shall be vacated if he absents himself from the meetings of directors for a period of six calendar months without special leave of absence from the other directors.
	I will now consider each of these contentions.  There is no doubt but that on the 11th March, 1997 an agreement was entered into between Mr. MacKay and Dr. McCoy.  The agreement recited the desire of Mr. MacKay to purchase Dr. McCoy's shares.  The agreement contained a series of conditions precedent.  They provided that Dr. McCoy should be under no obligation to sell his shares and furthermore that the agreement should become null and void at his sole discretion unless a series of events occurred in a timely fashion.  One of these was that on or before September 11th, 1997 Mr. MacKay had to pay to Dr. McCoy in Rancho Santa Fe, California the sum of IR£57,000 by deposit to Dr. McCoy's account.  If the performance of this or any of the other conditions precedent was not completed on or before the due date, time being of the essence, Dr. McCoy was entitled to retain all consideration paid prior to that time, his shares were forthwith to be returned to him and he was to have the option at his sole discretion of retaining the consideration paid as liquidated damages.  He was furthermore entitled to treat the agreement as being null and void except that he should retain his status as a shareholder and Director of the Company.  Alternatively, he might seek to enforce the agreement as provided therein.  It was a further condition precedent that pending completion of the purchase contemplated in the agreement and the performance of all conditions contained therein, Dr. McCoy was to remain a shareholder and Director of the Company with all rights and responsibilities which might accompany those positions.  The conditions precedent furthermore recited that upon completion of performance of the agreement, the payment of all consideration and the performance of all conditions required thereunder, Dr. McCoy would cease to be a shareholder and Director of the Company and would tender to the Company his resignation as Director.  It is common case that performance of this agreement has not been completed nor has Dr. McCoy tendered his resignation as a Director of the Company. 
	Mr. MacKay contends that this failure to complete the agreement is not his fault but was brought about by a failure on the part of Dr. McCoy to present documents so as to enable a letter of credit to be honoured.  Dr. McCoy contends that Mr. MacKay did not perform his part of the bargain by allegedly failing to deposit funds at the Bank of Ireland on or before the 11th September, 1997.  On foot of that alleged failure, Dr. McCoy's attorneys in California wrote on the 25th September, 1997 pointing out that Mr. MacKay had failed to pay the due sum and that more than two weeks had passed since the due date.  Accordingly, Dr. McCoy exercised his election under the terms of the agreement to retain as liquidated damages all consideration paid to him pursuant to the agreement and to retain his status as a shareholder and Director of the Company.  Dr. McCoy has gone further and has now instituted proceedings in the Superior Court of California in which he, inter alia, alleges failure to perform this agreement on the part of Mr. MacKay.
	It is not open to me to resolve this dispute between Mr. MacKay and Dr. McCoy.  First, Dr. McCoy is not before this Court.  Secondly, the Superior Court of California is already seised of the dispute.  Thirdly, there is insufficient evidence before me to enable me to make findings and, in any event, it would be inappropriate to do so in the context of this Petition.  What can be said, however, is that the agreement made between Mr. MacKay and Dr. McCoy has not been completed for whatever reason.  It was only upon completion of that agreement that Dr. McCoy was obliged to tender his resignation as a Director of the Company.  He never did so and it is common case that the agreement has not been completed.
	The onus of demonstrating the vacation by Dr. McCoy of his Director's chair lies upon the Petitioners.  Having regard to the matters to which I have already referred, I do not believe that they have discharged that onus.
	Indeed, as recently as the 21st January of this year the Company, in a letter written by its Secretary and financial controller to Ulster Bank, indicated that Dr. McCoy was still a shareholder but that his "shareholding will revert back to Neil MacKay when the contract between the two directors has been fully performed".  For what its worth that letter seems to suggest that at least as far as the Secretary of the Company was concerned, he believed Dr. McCoy still to be a Director thereof.
	Insofar as this part of the case is concerned, I hold that the Petitioners have failed to discharge the onus placed upon them to demonstrate that Dr. McCoy ceased to be a Director pursuant to the agreement in question.
	There remains the assertion that Dr. McCoy ceased to hold office pursuant to the relevant provisions of the Articles.  There is no doubt but that Dr. McCoy was acknowledged by Mr. MacKay to be a Director of the Company at the time that the agreement of the 11th March, 1997 was entered into.  I am therefore only concerned with alleged non-attendance at Directors' meetings subsequent to that date.  The evidence from Mr. MacKay in this regard is contained at paragraph 22(h) of his affidavit of the 11th March, 1998.  There he says that "since March of 1997 Dr. McCoy has played no role in the Company's affairs either in his capacity or (sic) as a shareholder or Director".  From the proceedings which have been instituted in California and which are exhibited in the affidavit of Marian Donovan, it is clear that Dr. McCoy alleges that since late 1996 or early 1997 Mr. MacKay prevented him from performing his duties as a Director of the Company by excluding him from participating in the normal management duties of a director.  He contends that Mr. MacKay and others refused to provide him with financial information, excluded him from meetings of the Board of Directors, and conspired and prepared minutes of meetings of the Board which read that Dr. McCoy was present at certain meetings when in reality he was not.  Once again Dr. McCoy is not before me but I bear in mind that the allegation made in the Californian proceedings was accompanied by a verification from Dr. McCoy in which he asserted those allegations to be true.  His declaration in that regard was made under penalty of perjury under the laws of the State of California and was alleged to be true and correct.  In the light of this, it appears to me that if the Petitioners were to discharge the onus of proof cast upon them in this regard, at the very least they would have had to put before me evidence of the meetings which it is alleged Dr. McCoy did not attend together with evidence showing that he was on notice of those meetings and failed to attend them.  In the absence of such evidence, I hold that the Petitioners have not discharged the onus of demonstrating that Dr. McCoy ceased to be a Director under this heading either.
	It follows from these findings that Mr. MacKay has not demonstrated that Dr. McCoy ceased to hold office.  Mr. MacKay accepts that if Dr. McCoy remained a Director of the Company, he was not entitled to convene a meeting on his own nor was he entitled to appoint Mr. Maher as a co-Director.  It was furthermore conceded that in such circumstances the complaint made by Dr. McCoy in his letter of the 6th March, 1998 (which is exhibited in Marian Donovan's affidavit of the 13th March, 1998) is well founded.  There Dr. McCoy says that he was never given any information concerning the presentation of this Petition.  It is also conceded by Counsel that, as a Director, he would have at least required to be consulted prior to the presentation of the Petition.  He was not and therefore the Petition is irregular.
	This concession makes it unnecessary for me to deal with Mr. Collins' argument concerning Section 3(1) of the Act and the alleged necessity for a director's petition to be presented by all the Company's Directors.   Neither do I have to express a view on whether the reasoning of Mervyn Davies J. in Re:  Instrumentation Electrical Services Ltd (1988) 4 BCC 301 is applicable to the construction to be placed on Section 3(1) of the Act.

THE APPLICATION TO AMEND THE PETITION
	Mr. MacKay, in his affidavit sworn on the 11th March, 1998, says as follows:-

	"Due to the pressure of time under which my lawyers and I were working on the night of  Thursday 6th February, 1998 I omitted, through a bona fide mistake on my part, to inform my lawyers of the position in relation to Dr. McCoy.  Now that position has come to light, I have been informed by them that had they been so informed, they would have advised that the within Petition ought to have been presented in my name as a shareholder of the company holding in excess of 10% of the share capital of the company.  The failure to present the within Petition in that form arose through the bona fide mistake which I have outlined above.  In any event, Mr. Maher and I are creditors of the company and could have presented the Petition in that capacity.  In the circumstances, I pray this Honourable Court to make an Order substituting me this deponent as Petitioner in lieu of John Maher and me this deponent as Petitioners and to treat this Petition as a members' Petition".

Counsel for the Petitioners sought to have the Petition amended so as to permit both Petitioners to petition as creditors of the Company.  A question was raised as to Mr. Maher's status as a creditor of the Company.  I need not resolve that since it is clear that Mr. MacKay is a member of the Company holding not less than one-tenth of the paid up capital.  I will therefore deal with the amendment as sought in the affidavit from which I have just quoted.
	Objection was taken to any amendment of the Petition at this stage.  Indeed, it is said that even if the Court were to amend the Petition in the manner sought, it would be of no assistance to the Company because any such amendment cannot override the statutory provisions of Section 3(6) of the Act.  In any event, it is said that there is no power given under the Rules of Court which permit of an amendment of the type which is sought here.
	Three provisions of the Rules of the Superior Courts were relied upon by the Petitioners in seeking their amendment.  The first was Order 15 Rule 2.  It reads as follows:-

	"Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right person, the Court may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just".

The second was Order 28 Rule 1.  It reads as follows:-

	"The Court may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties".

	The third was Order 28 Rule 12.  It reads:-

	"The Court may at any time, and on such terms as to costs or otherwise as the Court may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings".

	Reliance was also placed upon the provisions of Section 3(7) of the Act.  It reads as follows:-

	"On hearing a petition under this section, the Court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make any interim order, or any other order it thinks fit".

	Whatever may be the merits of the arguments of Counsel for the Bank as to the inapplicability of Order 15 Rule 2 and Order 18 Rule 2 to the application, I am quite satisfied that the Petitioners are entitled to rely both upon the provisions of Order 28 Rule 12 and Section 3(7) of the Act.  There is no evidence to controvert the assertion made by Mr. MacKay to the effect that the failure to present this Petition as a shareholder holding in excess of 10% of the capital of the Company was a bona fide one.  It is clear that this Petition had to be prepared and presented as a matter of considerable urgency.  I accept that the error made was a genuine one.  In such circumstances it would be strange indeed if the Court did not have the power to put right such an error.  I am of the view that it does have such power under the provisions of Order 28 Rule 12 and under Section 3(7) of the Act.
	Needless to say, the Court must always be astute to ensure that its process is not abused.  This is particularly so in Petitions presented under the Act.  The mere presentation of a Petition in the Central Office of this Court provides statutory protection to the Company.  No judicial determination is required for that protection to be afforded.  Given that such protection brings about a drastic abridgement to the rights of creditors, the Court must make certain that this procedure is not abused.  As I said in Re: Aston Colour Print Limited (unreported judgment 21st February, 1997), "the presentation of a petition to this Court and the invocation of the jurisdiction given to the Court under the 1990 Act is a matter of some considerable solemnity and importance, not merely for the company but also for its creditors and its workforce".  Great care should therefore be given to the presentation of Petitions under the Act.  In the present case, however, I am satisfied that a genuine mistake was made and I therefore propose to allow the amendment sought.
	This amendment does not involve the substitution of new Petitioners for the existing one.  It involves the striking out of Mr. Maher as Petitioner and an alteration of the status in which MacKay petitions the Court.  It must be borne in mind that Mr. MacKay would have been entitled to petition as a shareholder of in excess of 10% of the share capital of the Company at all times.  By allowing the amendment I am merely changing the description which is applicable to him as Petitioner.
	The final objection which is made by Counsel for Ulster Bank is that even to allow such an amendment does not save the situation from the Company's point of view.  He contends that unless there was a valid Petition before the Court at midnight on the third day subsequent to the appointment of the Receiver, an amendment is useless to avoid the provisions of Section 3(6) of the Act.  In my view, there was at all times a valid Petition before the Court albeit one which had a defect in form insofar as Mr. MacKay was concerned.  At all times he could have presented the Petition as a shareholder of the Company holding in excess of 10% of its share capital but through what I have held to be a bona fide error, did so as a Director of the Company.  The amendment which I am permitting merely puts that position right.  I am permitting the amendment both under Order 28 Rule 12 and on foot of the power conferred upon me by Section 3(7) of the Act.  I do not consider that by so doing and by regarding the Petition as a valid one as of the date of its presentation, that I am in any way running counter to the provisions of Section 3(6) of the Act.  I cannot accept that it was ever the intention of the legislature that the making of a bona fide error, such as the one in suit, could have the drastic consequences for the Company and its workforce as Ulster Bank suggest.
	There will therefore be an amendment to the Petition which will strike out Mr. Maher as a Petitioner and will amend the description of Mr. MacKay to that of shareholder holding in excess of 10% of the share capital of the Company rather than as a Director.
	It follows that I must now consider whether or not an Examiner should be appointed to this Company.

THE APPOINTMENT OF AN EXAMINER 
	The factors which must be taken into account by the Court in deciding whether an Examiner should be appointed have been considered by the Supreme Court on a number of occasions and by this Court on a great many more.  In Re: Butlers Engineering Limited (unreported 1st March, 1996) Keane J. (then a Judge of this Court) analysed the two reported Supreme Court decisions on the topic.  They were Re: Atlantic Magnetics Limited (1993)      2 IR 561 and Re: Holidair Limited (1994) 1 ILRM 483.  He said:-

	"The jurisdiction of the Court to appoint an examiner is not limited, as Finlay C.J. noted, to cases in which the Court considers that it would be likely to facilitate the survival of the company and the whole or part of its undertaking as a going concern.  It arises in every case where the company is or is likely to be unable to pay its debts and has not been wound up or no petition for winding up has been presented within the preceding seven days.  It would appear, however, that while the jurisdiction is not thus confined to cases where it will facilitate the survival of the business, the Court should be very slow to make the order unless, in the words of the Chief Justice, there is at least an identifiable possibility that it will survive.  It is also clear that the terms of Section 2 confer a wide discretion on the Court in deciding whether to appoint an examiner.  While the Court is bound to exercise that discretion having regard to the particular circumstances of each case, it must do so judicially and with strict regard to the criteria laid down by the Supreme Court in the decisions already cited.

	In that context, it should be noted that the majority judgments in the Supreme Court in Re: Atlantic Magnetics Limited expressly approved the formulation of the test by Lardner J. at first instance with what Finlay C.J. described as the minor qualification of the omission of the adjective 'reasonable' in the last sentence.  To the extent that the judgment of McCarthy J. suggests that the passage in Lardner J.'s  judgment only represents the appropriate test if one omits the words 'there being some reasonable prospect of survival', it appears in my respectful view to go further than what is contained in the judgment approved by the majority and not form part of the ratio of the decision".

	I agree with the views of Keane J. in this regard.  Utilising the test proposed by Lardner J. as amended by the majority judgments in the Supreme Court, the question which I must pose myself is "Does the evidence lead to the conclusion that in all the circumstances it appears worthwhile to order an investigation by the Examiner into the Company's affairs and see can it survive, there being some prospect of survival?"  Before applying that test to the facts of this case, it is, I think, worthwhile to consider a number of other matters which were addressed by Keane J. in his judgment.  He pointed out that the Court is not confined in appointing an Examiner to cases in which the company may survive but having done so, he went on the deal with the application before him as one which ought to be approached on the basis that the Court's jurisdiction to appoint an Examiner would arise provided that there was at least a possibility that the company would survive if an Examiner was appointed.  I propose to adopt the same approach in the instant case and there was no suggestion in the three days at which this Petition was at hearing last week that I should do otherwise.  Like Keane J. I am also of the view that in a case such as this where there is a conflict both on the evidence and the inferences which are sought to be drawn from it, the application of the criteria approved by the Supreme Court become of particular significance although, of course, they must be borne in mind in every case in which the appointment of an Examiner is sought.
	I also concur in the view expressed by Keane J. that whilst the purpose of the Act is the protection of the company and, as a result, its shareholders, employees and creditors, the Court must not lose sight of the abridgement that the giving of protection effects to the rights of creditors.  I also agree with Keane J. that the onus clearly rests on those presenting the Petition to establish that there is, at least, an identifiable possibility that the company will survive as a going concern if an Examiner is appointed.  A mere bold assertion that such a possibility exists is insufficient.  I also agree with him where he said :-

	"A petitioner who undertakes the onus, however modest, of satisfying the Court that there is an identifiable possibility of the survival of the company or at least a part of its undertaking as a going concern must present the Court with at least some reliable evidence as to the state of the company's finances".

	Bearing in mind the views of the Supreme Court in the two cases analysed by Keane J. and his own observations in Butlers Engineering, I now proceed to consider whether in this case an Examiner should be appointed to this Company.
	The Company has been trading for less than three years.  It has produced audited accounts for the years ending 31st August, 1996 and 31st August, 1997.  The audited accounts to the year ended 31st August, 1997 are heavily qualified.   The auditors, in their opinion on those accounts, say that because of the possible affect of the limitation in evidence available to them, they are unable to form an opinion as to whether the financial statements give a true and fair view of the state of the Company's affairs at the 31st August, 1997 and of its loss for the year then ended.  Accordingly, I must approach those accounts with a degree of circumspection.  
	An even great measure of circumspection must be applied to at least some of the evidence given to the Court by Mr. MacKay.  He has on occasions expressed views which are much more optimistic than the evidence justifies.  For example, in paragraph 20 of the Petition he stated that the Revenue Commissioners had indicated that if an agreement to pay arrears was honoured, they would consider waiving the penalties in respect of arrears.  I am satisfied that that was not so.  Of even greater importance to the issue that I have to decide, he stated at paragraph 27 of his second affidavit that provided current taxes were kept up to date, there was no reason to believe that a tax clearance certificate would not be issued.  I am satisfied that Mr. MacKay was incorrect in this also.  From the affidavit sworn by Mr. Scanlon on behalf of the Revenue Commissioners, it is clear that there could be no question of a tax clearance certificate being issued unless both current taxes and instalments pursuant to an arrangement regarding the payment of arrears were in place and being met.  Mr. MacKay also stated that the company had recently made an arrangement with the Revenue Commissioners and that he had been given to believe that his tax clearance certificate would be renewed.  Again, the evidence satisfies me that there was no arrangement in place with the Revenue Commissioners for the payment of current taxes or arrears of taxes.  In the absence of such an arrangement, there is no possibility of a tax clearance certificate being renewed.  Therefore, contrary to the views expressed by Mr. MacKay, the position is -

(1)	the Company does not have a tax clearance certificate,
(2)	the Company has not made an arrangement with the Revenue Commissioners regarding the payment of current taxes or arrears of taxes,
(3)	there is no question of the Company being given a tax clearance certificate unless both current taxes and instalments pursuant to an agreement are in place, and
(4)	the Revenue Commissioners will not agree to waive penalties.

A further example of the gloss of optimism which Mr. MacKay puts on the position is to be found in the statement contained at paragraph 27 of his affidavit of the 11th March, 1998.  There he says:-

	"I am aware that it is the view of Ernst and Young that the Company is viable and if that view is communicated to Forbairt, then I believe that future applications for grant aid  will be favourably considered".

 The proposed Examiner is a member of the firm of Ernst and Young.  On becoming aware of this averment, he caused a letter to be written to the Petitioners' Solicitors pointing out that his firm was not in a position to offer any opinion regarding the viability of the Company.  Accordingly, he called upon the Petitioners' Solicitors to clarify the position of Ernst and Young, which they did by exhibiting his letter without comment.
	In the course of the hearing before me, I asked Counsel for the Petitioners to indicate matters which he contended would entitle the Court to form the view that an identifiable possibility that the Company or any part of its undertaking would survive as a going concern if an Examiner were to be appointed.  He specified a number of these and I will consider each of them in turn.
	First, he referred to the Company's trading history.  He said it showed a profit of about £270,000 in its first year.  The losses demonstrated in the second year had, he said, exceptional reasons explaining them.  I am inclined to the view that there is cogent evidence to suggest that the profits made in the first year are rather more illusory than real.  They appear to take into account grant receipts of over £180,000, together with the profit figures which include the benefit to the Company arising out of the purchases of stock from the Receiver of Cavan Crystal Limited.  Insofar as the audited accounts for the year ending 31st August, 1997 are concerned, they demonstrate a loss.  It is suggested that the Company is now at a break-even point or may even make what was described by Counsel as a modest profit.  The profit which is predicted in the Petition for the year ended 31st August, 1998 is of the order of £250,000.  On the basis of the evidence that I have seen, I take the view that this prediction suffers from the same degree of optimism as a number of the other matters deposed to by Mr. MacKay and which I have already identified.  It also seems to presuppose a state of affairs between the Company and the Revenue Commissioners which does not exist.  It does not appear to me that the Revenue Commissioners are prepared any longer to act as a form of unofficial banker to the Company as may have been the case heretofore.
	The second matter which was relied upon by Counsel concerned what he described as heavy investment which had taken place in the Company in 1997.  This involved the construction of the visitor centre and the acquisition of the Paul Costello range of ware.  Given these investments, Counsel said that the Company was now on the threshold of making profits from now on and into the future.  The opening of the visitor centre was described in the Petition as the single most important element in the future development of the Company.  The Statement of Affairs shows a sum of £247,000 (subsequently reduced to £213,568) due to building creditors.  Building work ceased prior to the Receiver's appointment and the contractor removed his staff and equipment from the site.  This was because of the inability of the Company to pay the building creditors. The Petitioners believe that this work can be completed by Easter Monday.  Mr. MacKay exhibits a letter from the main contractor dated the 11th March, 1998.  This letter is supposed to demonstrate a willingness on the part of the main contractor to recommence work.  The letter reads as follows:-

	"Dawnville Developments Limited states without prejudice that work on the project can be recommenced after the appointment of an Examiner if proper financial arrangements can be put in place to enable the directors of the company to recommend to all suppliers and sub-cont. that it is in their interests to do so.

	An immediate meeting to be arranged between sub-cont. and suppliers to give guaranteed details of funding suitable to their companies before work recommences.
	Signed:  JP McNulty".

This form of commitment from the building contractor is highly conditioned and falls far short of a firm undertaking to return to work.  I have no doubt but that investment has been made by the Company in the Paul Costello range.  However, that of itself does not appear to me to make a great deal of difference when one considers the overall position of the Company.
	The next matter which was relied upon by Counsel for the Petitioners was the willingness on the part of investors to put money in the Company.  The possibility of outside investment is obviously of crucial importance if the Company is to have any hope of being saved by the appointment of an Examiner.  What is the evidence on this topic?
	The Company clearly believed that outside funding was required some time ago.  It engaged in negotiations with an entity called Enterprise Equity who were contemplating an investment of £650,000 in the earlier part of this year.  That offer of funding was withdrawn.  On the 17th February, 1998 the Company Secretary wrote to the Directors of the Company pointing that out and went on to inform them as Directors that unless a significant equity injection was lodged to the bank account of the Company immediately, the Company would have no option but to cease trading.  To do otherwise would lead to the conclusion that the Directors and officers were trading in a reckless manner.  I am of the view that that figure of £650,000 is a realistic assessment of the sort of equity that would be required for the Company.  What evidence is there of an identifiable possibility of such an investment being made?  
	Four possible investors have been identified.  The first is a Mr. Hewitt.  On the 6th March, 1998 his Solicitors wrote to the Petitioners' Solicitors indicating that as of then, Mr. Hewitt was agreeable in principle to making a loan of £100,000 to the Company on terms and conditions to be agreed.  The loan was to be interest-bearing and repayable within twelve months, failing which Mr. Hewitt would be entitled to a 10% shareholding in the Company.  By the 12th March, 1998 Mr. Hewitt's Solicitors were in a position to write to the Petitioners' Solicitors in the following terms:-

	"Further in the above we confirm our client has placed £100,000 with us which sum is currently held in our client account and our instructions are that the funds will be made available on the following terms which as you are aware have been agreed between the parties in our recent discussions:-

	1.	Upon confirmation that the Petition has been presented and the Examiner appointed and the terms of appointment thereof do not restrict the Examiner's ability pursuant to Sections 9 and 10 of the Act.
	2.	On the understanding that the prospective management of the Company's affairs would be regulated by the Examiner or the existing Directors, namely, Mr. MacKay and Mr. Connolly.
	3.	Upon clarification of the order made in respect of the current receivership.
	4.	On the understanding that the funds are to be made available by way of loan to the Examiner per se for utilisation by him within the meaning of Section 10 of the 1990 Act and strictly on the understanding that the borrowing is certified as an expense of the examination within the meaning of Section 10 of the 1990 Act and said certification to be in writing.
	5.	The term is to be one year and the rate of interest chargeable is to be 8%.
	6.	In the event of non-repayment of the entire funds together with accrued interest on the expiry of the twelve month period, our client in lieu of repayment shall be allotted at no additional cost a 10% shareholding in the then issued ordinary share capital of the company carrying voting rights and normal pre-emption rights attaching to that class of shares on the understanding the said shareholding shall not be diluted by the issue of further shares or at our client's election a 10% shareholding of the share type held by your Mr. MacKay.

	The above terms are obviously subject to review by mutual agreement between the parties concerned.  We await hearing from you".

This offer is clearly conditional upon a large number of matters.  It also seems to assume that Mr. Connolly is a Director of the Company but the evidence before me in the Petition is that he had resigned prior to the 12th March, 1998.  
	The next two possible investors have not been identified by name.  There is nothing unusual in that having regard to the need for commercial confidentiality.  However, the latest information concerning them is contained in an affidavit which was sworn only on the last day of the hearing of the Petition and at a time when Counsel for the Petitioners was closing his case.  The averment from Mr. MacKay in relation to them is as follows:-

	"I have indicated that two potential investors from the United States might be interested in making similar investments".

This can only be described as sparse information.  Quite clearly, from the terms of this averment, any investment which might be made by these unnamed United States investors would be conditional in the same way as Mr. Hewitt's.  It is also said in Mr. MacKay's latest affidavit that he has identified that the two anonymous potential investors from the United States have expressed an interest in making a more significant long-term investment in the Company.  No indication, even in rough terms, is given as to the level of such prospective investment.  At the very least I would have expected some indication to be given as to the quantum of any such investment.
	The final investor is the Petitioner himself.  He has already put substantial sums of money into the Company.  He says that he will be in a position in the absence of the investments being forthcoming from the United States investors to fund the Company's short-term working capital requirements.  If outside investment is not forthcoming or is not forthcoming in sufficient amounts, he says that he would be in a position to make a further significant investment in the Company and, in such circumstances, would be willing to do so.  He then goes on the place evidence before the Court concerning the fact that he is moving from his home in the United States and returning to live in Ireland.  He believes that he will have approximately £370,000 available to him by the 29th May, 1998.  That date is slightly in excess of three months from the date of presentation of the Petition.
	Mr. MacKay prepared cash flow projections both in relation to the Company's building work and its ordinary business.  These demonstrate an income of £250,000 which is to be anticipated from invoice discounting.  However, the Company's invoice discounting facility is terminated.  There is no evidence before me to suggest that a new invoice discounting facility can be obtained.  The best that can be said is recited by Mr. MacKay in a supplemental affidavit where he avers that he received an assurance from the Bank of Ireland that such an application would be looked upon favourably. 
	The only firm commitment to advance outside money is the sum of £100,000 which, in my view, can only be described as a stop-gap measure.  I am of the view that the Company does not have sufficient turnover in its current trading to provide enough monies to meet day-to-day expenses, including the payment of wages.  It will, therefore, be necessary for an Examiner to borrow money to fund these day-to-day expenses.
	The level of investment which has been identified as possible falls far below what would be required by the Company and in many respects the evidence in respect of even this investment is less than satisfactory.
	It is of course true that the type of evidence which the Court requires at this stage in order to appoint an Examiner falls far short of requiring any commitment from investors or even their identification.  Nevertheless a petitioner must show an identifiable possibility of the survival of the company or a part of its undertaking.  		The final points which were made by Counsel as pointing to the existence of an identifiable possibility of survival were the fact that the Company has a surplus of assets over liabilities and consequently any scheme of arrangement which is worked out will not require what was described as a radical adjustment.  But even if one writes down the creditors, what are the profit prospects for the future?  I do not think that this factor is of any great assistance either taken in isolation or in combination with the other matters advanced.
	It was said that the Petition is opposed by only one big creditor.  That creditor will be in the best position even if the examination collapses.  But it is clear that if the examination were allowed to proceed, it can only be done with substantial borrowings being made by the Examiner, all of which would dilute the entitlement of the secured creditor.  That of course of itself would be no reason for refusing to appoint an Examiner.  But I must look at the totality of the evidence before me.
	Finally, just as in Butlers Engineering, the fact that Mr. MacKay and Dr. McCoy are far from united in their approach cannot increase one's confidence in the course proposed.
	In my view the question "Does the evidence lead to the conclusion that in all the circumstances it appears worthwhile to order an investigation by the Examiner into the Company's affairs and see can it survive, there being some prospect of survival?" must be answered in the negative.  Patently over optimistic hopes, no matter how frequently expressed or attractively packaged, do not amount to the demonstration of an identifiable possibility of survival.
	This Petition is dismissed.