In the matter of Openhydro Group Ltd & Ors v Naval Group SA & Anor (Approved)

(IN PROVISIONAL LIQUIDATION) AS A RELATED COMPANY WITHIN THE MEANING OF SECTION 517 & SECTION 2(10) OF THE COMPANIES ACT 2014

The Petitioners had urged the High Court to make no order for costs. In doing so they placed significant reliance on an earlier costs ruling of this Court in these proceedings to which I shall refer further below.� However, the Judge was not persuaded to depart from the principle that costs should follow the event and proceeded to make an order for the costs of the proceedings in favour of the Creditors.

In July 2018, the Creditors resolved not to continue funding the Company. On 26 July 2018, on the petition of Naval Energies SAS, the High Court (Costello J) appointed Michael McAteer and Stephen Tennant as provisional liquidators to the Company. At that point, the Creditors calculated that they were owed a combined amount of more than �120 million by the Company, making them its largest creditors. The Creditors presented a petition to wind-up OpenHydro Technology Limited at the same time and Mr McAteer and Mr Tennant were appointed provisional liquidators of that company on the same date.

In any event, on the same day (17 August 2018) the High Court (O� Regan J) made an order appointing Ken Fennell as interim examiner to the Company and to OpenHydro Technology Ltd (� the Interim Examiner �).

In these circumstances, the Petitioners� appeal obviously did not proceed on 4 October 2018. Instead, the Court heard submissions on costs, with the Creditors looking for their costs and the Petitioners urging the Court to make no order. For the reasons set out in the ex tempore ruling given by Peart J, the Court made no order as to the costs of the appeal. The ruling of Peart J looms large in this appeal also and so I shall set it out in full: