KC Capital Property Group Limited and Ors v Companies Act 2014

THE HIGH COURT [2026] IEHC 115 HIGH COURT RECORD NUMBER 2026/33 CA CIRCUIT COURT RECORD NUMBER 2026/114 IN THE MATTER OF KC CAPITAL PROPERTY GROUP LIMITED AND IN THE MATTER OF THE COMPANIES ACT 2014 AND IN THE MATTER OF KC CAPITAL PROPERTY 182 LIMITED AND IN THE MATTER OF THE COMPANIES ACT 2014 AND IN THE MATTER OF KC CAPITAL PROPERTY 185 LIMITED AND IN THE MATTER OF THE COMPANIES ACT 2014 JUDGMENT of Mr. Justice Twomey delivered on the 6th of March, 2026 INTRODUCTION 1. What is unusual about this case is that the company, which is seeking to enter examinership, KC Capital Property Group Limited (“KC Capital”), is a special purpose vehicle incorporated for the limited purpose of investing in a site and building a property thereon. Not only that, but the company only has two employees, i.e. the two investors behind this property investment. As noted hereunder, it is akin to two friends deciding to borrow €500,00 buy a site to build a house for rental (through a company) and then when the 1 company fails to meet its loan repayments to the bank, the two friends seek to prevent the bank enforcing its security by having an examiner appointed. 2. For the reasons expanded on below, this Court does not believe that a company, with just two employees, and which is simply a vehicle for investing in property, is the type of company for which examinership was designed. 3. This case also highlights another factor which was relevant to this Court’s decision, namely the notion that it is easy to be generous with someone else’s money. This is because KC Capital, which is insolvent, paid certain unsecured creditors with money, which did not belong to it. This is because the money in question was in fact beneficially owned by a secured creditor. If the shareholders or director of KC Capital were anxious to pay these unsecured creditors, they could have funded the company to make those payments. However, instead KC Capital ended up using the secured creditor’s money. As noted below, this is another factor which does not assist KC Capital in its application to this Court to exercise its discretion to appoint an examiner (which would further prejudice the rights of that secured creditor). 4. Just as it is easy to spend another person’s money, so too, if a professional’s fees are required by statute to be paid a third party, it is easy for that professional to be blasé about disclosing the level of those fees to that third party. Yet, that professional might not be so blasé if it was a client, who was not obliged by law to pay those fees, was the payer. In this case, the interim examiner failed to provide details of his fees and legal costs to the secured creditor (the party who is, in effect, obliged by law to pay those sums). This omission did not assist KC Capital in its application to have this Court exercise its discretion to order the continuation of the examinership. 2 BACKGROUND 5. This is an application to confirm the appointment of an interim examiner to three companies: KC Capital, KC Capital Property 182 Limited (“182 Limited”) and KC Capital Property 185 Limited (“185 Limited”). It comes before this Court by way of an appeal of the Circuit Court decision of O’Connor J., in which he refused to confirm that appointment in a comprehensive written judgment dated 16 February 2026. 6. As this was an appeal from the Circuit Court, the hearing before this Court was a de novo hearing. 7. At that hearing, this Court was told that 182 Limited and 185 Limited have no employees and simply operate as conduits for rent on two commercial properties (Stewart House and Ashleigh House, both on Parnell Street in Dublin). Those properties have a combined value of circa €2 million. However, both these companies have provided guarantees in relation to their related company KC Capital, which is the focus of this examinership application. 8. KC Capital borrowed funds from Fairfield REF ECS II Gen Designated Activity Company, which is associated with Oaktree Capital Management Inc. (“Fairfield”) in order to buy a site on Cuffe Street in Dublin and to develop a commercial property on that site (the “Greenside building”). 9. KC Capital states that, due to problems with defective concrete supplied to it by Keegan Quarries Limited (“Keegan Quarries”), there have been long delays and expenses in completing the project. As a result, KC Capital has sued Keegan Quarries (the “Litigation”) and if it were to be successful, KC Capital believes that it could be awarded damages of up to €15 million. As Keegan Quarries has a costs order against KC Capital in relation to a security for costs application which was made in that Litigation, Keegan Quarries is a creditor of KC Capital’s for the purposes of this examinership application. 3 10. There is no dispute that KC Capital is insolvent and that it owes circa €54 million to Fairfield, which called in that loan and appointed (Messrs. John Boland and Colm Dolan) as joint-receivers (the “Receivers”) on 19 December 2025. This then led to the appointment of an interim examiner on 22 December 2025 (the “Examiner”) and then to the judgement of the Circuit Court on 16 February 2026 in which O’Connor J. refused to confirm the appointment of the examiner. 11. It is relevant to note that the Greenside building is close to practical completion, and there seems to be no dispute between the parties that it will be completed, whether by the Receivers or by a re-structured KC Capital after the examinership process. 12. In addition, there appears to be little argument that the level of Fairfield’s debt exceeds the value of the Greenside building. Accordingly, Fairfield (which is the primary creditor, and it seems the only secured creditor) does not expect that it will recover its €54m in full. This view is shared by counsel for KC Capital who stated: ‘He [counsel for Fairfield] is never going to recover even in a receivership, I think, all of his now €54 million, and probably not going to recover all of his €55 million, if there is another period where the examinership takes place.’ It is claimed that Pointsight Limited, the only creditor to support the examinership, is also a secured creditor. However, sworn evidence was provided to this Court by Mr. Jamie Ensor of Dillon Eustace, solicitors for Fairfield, that the relevant security documentation provided by KC Capital to Pointsight provided that those security documents ‘ceased to have any force or effect’ on 16 July 2025. KC Capital did not provide any evidence contradicting this averment that Pointsight’s security has ceased to exist. 4 Urgent decision required regarding the confirmation of the Examiner 13. As a preliminary point, the application to confirm the appointment of the Examiner was heard by this Court over the course of a day on 25 February 2026. Detailed affidavits and submissions were made to the Court on behalf of the interim examiner, KC Capital and creditors (i.e. Fairfield, Townlink, Keegan Quarries and Pointsight). At the end of the hearing, this Court was informed that it was required to give a decision on 27 February 2026, as to whether or not the Court was going to confirm the appointment, since on that date the Examiner’s appointment will come to an automatic end, unless his appointment is confirmed by this Court. 14. In light of this tight timeframe in which to consider the extensive submissions and evidence, rather than going through each issue and each argument, this Court has focused only on the key reasons for its decision. For this reason, although plausible arguments were made on behalf of Fairfield that the Examiner was wrong to conclude that KC Capital has a reasonable prospect of survival, this Court has decided to assume that KC Capital has a reasonable prospect of survival for the purposes of s.509(2)(a) of the Companies Act, 2014 (the “2014 Act”). In this way, this Court will concentrate on what it regards as the key issue, namely the exercise of this Court’s discretion as to whether to confirm the appointment of the Examiner in the particular circumstances of this case. ANALYSIS 15. There are a number of reasons why this Court would exercise its discretion to refuse to confirm the appointment of the Examiner, which will be dealt with in turn. 5 (i) No benefit to economy and no saving of a significant number of substantive jobs 16. The first reason why this Court would not confirm the appointment of the Examiner is because this is a very unusual company which is seeking to enter examinership, and it is not the type of company, in this Court’s view, for which examinership was designed. 17. To understand this point, it is important to note, as observed by Clarke J. (as he then was) in Re Traffic Group [2008] 3 IR 253 at para. 5.5, that the ‘principal focus’ of the examinership legislation is: ‘to enable, in an appropriate case, an enterprise to continue in existence, for the benefit of the economy as a whole and, of equal, or indeed greater, importance to enable as many as possible of the jobs which may be at stake in such enterprise to be maintained for the benefit of the community in which the relevant employment is, located. It is important both for the court and, indeed, for examiners, to keep in mind that such is the focus of the legislation. It is not designed to help shareholders whose investment has proved to be unsuccessful.’ (emphasis added) 18. In a similar vein in the case of Re Kitty Hall [2017] IECA 247, at para. 43, Hogan J. (referencing Re Traffic Group) stated that: ‘the principal object of the examinership system is to rescue otherwise viable enterprises – thereby safeguarding employment and the general economic welfare of the community in the process – and not to protect shareholders from the consequences of poor business decisions.’ (emphasis added) 19. To highlight, in perhaps more accessible terms, why KC Capital is not, in this Court’s view, the ‘principal focus’ or ‘principal object’ of the examinership legislation, consider the following scenario. Two individuals decide to borrow, say €500,000, from a bank to buy a site to develop a house and rent it out (say €100,000 for the site and €400,000 for the build). They could do so in their own names or through a company. If they decide to use a special 6 purpose company for this purpose, they will become shareholders in that company, directors of that company, and employees of that company – all for the purposes of the property investment. If, because they no longer have money to fund that company, the company fails to make repayments on the loan, the bank (with a charge over the property) could appoint a receiver. Could the two investors deny the bank its legal entitlement to recover its loan as it sees fit, by those investors appointing an examiner (whose costs will be paid in priority to the bank’s loan) in order to enable an examiner to seek third party investors for the insolvent company? 20. It is difficult to see how a pure property investment through a special purpose company, could possibly be regarded as an enterprise which it was important for the community to continue, particularly where the only jobs at stake are the jobs of the people, who, however it happened, failed to ensure that their company complied with its loan repayment obligations. 21. While in this case, we are not dealing with investing in the building of a house to rent out, but an office block, and so the amounts of money are much larger, the essence of the enterprise is the same as in this example. This is because there are two principals or shareholders behind KC Capital and they are Mr. David Kennan and Mr. Shane Connaughton, with Mr. Kenan being the sole director of KC Capital and Mr. Keenan having a 15% shareholding and Mr. Connaughton an 85% shareholding (which shareholding is not held personally, but through another corporate entity1). They incorporated KC Capital as a special purpose vehicle, since, as accepted by its counsel, they incorporated the company for the ‘limited purpose’ of developing one site and renting out the resulting building. In this way, KC Capital is comparable to the example of the two investors buying a site to 1 Their 15% and 85% shareholding is in KC Capital Management Limited. However that company is the sole shareholder in KC Capital – see the Examiner’s Report dated 28 January 2026 at pg 14. 7 develop a house for rental. While it is stated in its financial statements that KC Capital intends to develop and rent the Greenside building, it is of course conceivable that, like any investor in property, KC Capital could sell the completed building or indeed the fitted-out building, which if it happened would be the end of KC Capital’s business and trading. 22. Like in the example above, Mr. Kennan and Mr. Connaughton appear to be the only employees of KC Capital. However, it is relevant to note that uncontroverted written submissions were made by Fairfield, that they are ‘property developers with substantial other business interests’. Thus, it seems they will not be added to the list of the unemployed, even if KC Capital goes into receivership. 23. For all these reasons, it is difficult to see how it could be regarded as being of ‘benefit for the community’ that their company, a vehicle for investing in property, continues, when there are no jobs which will be lost (other than the two investors' jobs). The fact that these two jobs appear not to be critical, but simply incidental to the property investment purpose of KC Capital, is highlighted by the fact that sworn evidence was provided on behalf of Fairfield that KC Capital was never intended to have employees in the first place and that, KC Capital had in fact warranted that it would have no employees. 24. Thus, attempting to save the insolvent KC Capital by putting it into examinership would, in this Court’s view, be akin to saving a special purpose company whose only role is to be the legal owner of a site, the borrower of funds and the conduit for rent to be paid back to the lender, when the property is rented out. In this Court’s view, it is clear from Re Traffic Group that this is not the purpose of the examinership legislation, and so this is, in this Court’s view, one reason for this Court to exercise its discretion against the appointment of an examiner. 8 The substantive jobs which are at stake 25. In contrast to what might be termed the ‘incidental’ jobs of the two investors behind KC Capital, the more substantive jobs which are at stake, are those of the 70 direct employees of Townlink Construction Limited (an unsecured creditor and the primary contractor on the Greenside building), and the 57 other suppliers or sub-contractors who were engaged to work on the site.2 However, since these are not employees of KC Capital, it is clear that these jobs will not be affected by whether KC Capital goes into receivership or examinership. Indeed, because the building is close to being completed by these workers, it is common case that these workers will return to the site, regardless of whether KC Capital goes into receivership or examinership. 26. In this Court’s view, it is these jobs which should be the focus of this Court’s attention. As observed by Clarke J. (as he then was) in Re Traffic Group: ‘it is important to note that the Act [the Companies (Amendment), Act 1990] is not designed to immunise the principals or shareholders of the company from the consequences of the company concerned getting into financial difficulties.’ (emphasis added) 27. Applying this principle, this Court does not believe that it should be unduly concerned with the loss of the two jobs by the promoters of a special purpose company created for their personal property investment. The loss of employment is a consequence of their actions as shareholders/directors since the company, which they control, is not able to comply with loan agreements it took out (albeit that they claim that other parties are liable, wholly or partly, for this failure). 2 Affidavit of Mr. David Caulfield, on behalf of Townlink, dated 13 January, 2026 at para. 22. 9 28. Furthermore, when one considers the substantive jobs that are relevant, i.e. those of the employees of Townlink, it is a further factor in favour of this Court exercising its discretion against the appointment of the Examiner, that Townlink has supported the position of Fairfield in opposing his confirmation. As noted by Clarke J. in Re Laragan Developments [2009] IEHC 390 at para. 8.11: ‘the underlying social benefit of a successful examinership is the preservation of a real enterprise and real jobs for the benefit of the community. It is not saving shareholders from the consequences of having invested in a failed enterprise.’ (emphasis added) It is not the preservation of a special purpose company investing in property in order to save two incidental jobs of the two promoters. Examinership could work against real and genuine employment 29. In this regard, Townlink’s submission highlighted how, if the Examiner were to be confirmed, it would mean that the examinership legislation could work against real and genuine employment in Ireland, which is clearly not the legislation’s intention. This point is illustrated by the fact that, as soon as the Receivers were appointed in December 2025, Townlink had agreed with them a schedule of works which needed to be completed and which would result in practical completion of the Greenside building on the first week of March of 2026. However, because of the appointment of the Examiner in December 2025, this has now been delayed. This delay, to finishing a 9-storey office block, which was only a couple months from completion, and which is worth anywhere from €19m to €51m, is clearly negative to the ‘economy as a whole’. Yet, this delay was caused by the appointment of an interim examiner, even though the whole purpose of the examinership legislation is to seek to achieve results which are beneficial to the economy as a whole. 30. While, as noted below, examinership might be in the financial interests of Mr. Kennan and Mr. Connaughton, it is difficult to see how it is in the ‘general economic welfare of the 10 community’ for there to be this type of delay in completing a building project, that is so close to completion. It seems to this Court that all that the interim examinership has achieved (and that any confirmation of the Examiner would achieve) is a further delay for Townlink in getting those employees back on site. 31. Such a delay could not be regarded as a positive for the ‘general economic welfare of the community’. Indeed, putting the issue into financial terms, it is to be noted that it is anticipated that the building will be let out for circa €190,000 per month once it is fitted out (which amount will be for the ultimate benefit of Fairfield, to whom interest on its loan is accruing at €500,000 per month). It is hard to see how this clear financial consequence of the delay in the building being available for rent could be regarded as positive for the ‘general economic welfare of the community’. A special purpose property investment vehicle going into examinership? 32. It is relevant to note that this court was not provided with any authority in a special purpose property investment company (or ‘pure property play’ in the words of counsel for Keegan Quarries) was put into examinership. Indeed, the fact that this application was unprecedented was highlighted by what counsel for Townlink termed the ‘unparalleled’ situation, where an unsecured creditor (Townlink) was claiming that the appointment of a receiver would be in its interests. The reason it is in its interests is because otherwise one would have a situation where an insolvent company, with, what might be termed, two incidental employees could, by going into examinership, prevent 70 substantive employees (and 57 subcontractors) from working. 33. For this reason, Townlink provided sworn evidence that it believes that the appointment of the Examiner ‘present(s) a far greater threat to jobs’3 than a receivership. In particular, Mr. David Caulfield, Managing Director of Townlink, avers: 3 Affidavit of Mr. David Caulfield, on behalf of Townlink, dated 13 January, 2026 at para. 22. 11 ‘it is in the interests of Townlink and its supply chain that this project recommence without undue delay and be brought to a conclusion so that funds due to Townlink on completion and finalization of its final account can be released to it and, as applicable and appropriate, released to supply chain members.’4 34. For these reasons, it seems to this Court that the examinership of KC Capital, were it to be permitted, would be very far removed from achieving the raison d’être of the examinership legislation – which appears to this Court to be preventing the breaking up of companies (usually trading or manufacturing companies rather than a special purpose company, and which usually has more than just two ‘incidental’ employees), where that break-up would have a negative effect on employment and the economy as a whole. 35. Rather than being a trading or manufacturing company (or even an investment company with employees, other than the shareholder/promoters), KC Capital is a special purpose vehicle or conduit through which a site is acquired, and loans are obtained and repaid. Nothing more and nothing less. All the development work, and so the real employment and economic benefit to the community, arising from the Greenside building, is being carried on by Townlink, which has nothing to do with KC Capital and which, it is to be noted, supports KC Capital going into receivership, rather than examinership. 36. The foregoing reasons are a further factor in favour of this Court exercising its discretion against the confirmation of the Examiner. (ii) Can everything, including the Litigation, be achieved through receivership? 37. Fairfield argues that the appointment of the Examiner should not be confirmed, as there is nothing which could be achieved from an examinership that could not be achieved in a 4 Affidavit of Mr. David Caulfield, on behalf of Townlink, dated 13 January, 2026 at para. 22. . 12 long-term receivership. KC Capital disputes this because it says this ignores the value of the Litigation, which it says will not or might not be pursued in a receivership. 38. However, this Court does not accept counsel for KC Capital’s argument that the best way to ensure that the Litigation is pursued, for the benefit of the creditors of KC Capital, is through examinership rather than receivership. In this regard, it may well be the case that the two promoters feel strongly that they want to pursue the Litigation because they feel aggrieved that their investment project has been thwarted by what they see as wrongdoing on the part of Keegan Quarries, which has led to them losing any prospect of getting a return on their investment. In this regard, counsel for Townlink described Mr. Kennan as ‘passionately in favour of’ the Litigation. However, apart from any such personal aggrievance (which, in any case, should play no part in deciding whether to pursue litigation or not), it is difficult to see why it is preferrable for the Litigation to be pursued by a restructured company (after examinership), rather than by the Receivers. 39. This is because, firstly, this Litigation, although treated by counsel for KC Capital as an asset of the company, with a potential value of up to €15 million, is in reality, like all litigation, inherently uncertain and so neither an asset nor a liability. This is because in relation to all litigation, save in the most clear-cut cases, it is prudent to treat it as something which has a 50:50 chance of being successful. The uncertainty of litigation is illustrated on a daily basis in our courts. Take for example the cases of Minister for Justice & Equality v. Sciuka [2021] IESC 80 or Revenue Commissioners v. Karshan [2023] IESC 24. In Sciuka, over the course of hearings in three different courts (the High Court, the Court of Appeal and the Supreme Court), the applicant eventually won. However, this is despite the fact that the majority (five out of nine) of the judges who had heard his case had found against him (one in the High Court, three in the Court of Appeal and one in the Supreme Court), while four of the nine judges (being four out of the five sitting in the Supreme Court) found for 13 the applicant. Similarly, in Karshan, the High Court found in favour of the Revenue, but this decision was reversed in the Court of Appeal (with one of the three judges dissenting), and then the Supreme Court unanimously reversed the Court of Appeal. 40. Secondly, in this litigation, for the purposes of the security for costs aspect of the case, Barrett J. has already held in KC Capital v Keegan Quarries [2024] IEHC 257 at para. 17 that Keegan Quarries has ‘established a prima facie defence to this claim [by KC Capital]’, which further reinforces the view that like all litigation, this Litigation should not be assumed to be an ‘asset’. 41. Thirdly, Fairfield has already shown that it is willing to support the Litigation and crucially has ‘put its money where its mouth is’ by contributing circa €1.5 million to the Litigation costs to date. In the real world, actions speak louder than words and in this Court’s view, this is more relevant that an expression of interest or a non-binding offer by a potential future investor that it will finance the Litigation, such the fact that one potential investor, Brunsfield Limited, ‘indicated a willingness’ to ‘fund any litigation expenses’. However, this was only on the basis that it would enjoy superior priority ahead of Fairfield in the event of a receivership/liquidation, which hardly seems feasible. 42. Fourthly, as Barniville J. (as he then was) held in Re Ballantyne [2019] IEHC 407, quoting from Re Ocean Rig UDW 5 [2017] 2 CILR 495 (Parker J.), that: ‘[m]embers and creditors are normally the best judges of what is in their commercial interest and are in a better place than the court to decide where their best interests lie’. Thus, if the Receivers get advice that they have an almost guaranteed win in the Litigation they and Fairfield, as the best judge of the financial interests of Fairfield, are unlikely to turn down the chance of getting a €15m return. To put it another way, business people act in their own financial interests and if pursuing the Litigation is likely to lead to a significant financial gain to the Receivers/Fairfield, it is most likely to be pursued. On the other hand, 14 if due to new evidence or otherwise, pursuing the Litigation is unlikely to lead to a significant financial gain and perhaps a loss, then the Litigation is unlikely to be pursued, whether by the Receivers/Fairfield or indeed the Examiner/KC Capital (after examinership). Thus, in this Court’s view, the identity of the party entitled to pursue the Litigation is not relevant, and should not be relevant, when it comes to what should be a cold calculated decision of whether to fund litigation. 43. For all these reasons, this Court does not believe that the existence of the Litigation, which is perceived by the promoters to be an ‘asset’ of the company, is something which should lead this Court to exercise its discretion to confirm the appointment of the Examiner, rather than allowing the receivership to continue. To put it another way, if the Litigation does in fact offer a very good chance of financial reward, it is likely to be pursued just as quickly by the Receivers as by the restructured company (after examinership). (iii) No real necessity to appoint an examiner 44. Related to the Litigation point is the fact that it is clear from the decision of McDonald J. in Re New Look Retailers [2020] IEHC 514, at para. 89, that the test for an examiner to be appointed is that there should be a ‘real necessity to appoint an examiner at this point’. However, since KC Capital is, in effect, a special purpose company, through which a site is being developed, it seems that the only possible reason to appoint the Examiner would be if the pursuit of the Litigation (with a ‘possible’ value of €15 million) was not feasible other than through an examinership. Since, it is clear from the foregoing that this is not the case, it seems to this Court that the test that there be a ‘real necessity’ to appoint the Examiner, is not met in this case. Accordingly, this is a further factor in favour of this Court exercising its discretion against the confirmation of the Examiner’s appointment. 15 (iv) Absence of uberrimae fides and absence of good faith by KC Capital 45. When a court is coming to exercise its discretion to make a decision to appoint an examiner, which will restrict significantly the rights of third party creditors to the return of their money, it is clear from s.518 of the 2014 Act, that it is important that the parties seeking that relief act in good faith and with uberrimae fides (utmost good faith). 46. This is particularly so in an ex parte application for the appointment of an interim examiner (where no other party is present apart from the applicant company), and where all relevant information, even material which might be negative to the company’s application, should be disclosed to the court, which is making a decision which will so significantly impact on third parties. 47. In this regard, it has already been noted that, in the year prior to its application to appoint an interim examiner, KC Capital unsuccessfully resisted a security for costs application from Keegan Quarries in the Litigation. The application was heard on 24 January 2024 with judgment delivered on 26 April 2024. It seems clear that in order to resist this application for security for costs, it suited KC Capital to claim that the Greenside building was worth a lot of money (since this would lessen/obviate the need for it to put up security for the costs of the Litigation). At this hearing, KC Capital relied on valuations of the property which valued it at between €43m and €51m depending on fit-out etc (which figures were derived, respectively, from an August 2023 Colliers Report and a May 2022 BNP Report, both of which had been obtained by Fairfield).5 48. However, it is significant to note that, when it came to applying for an interim examiner to be appointed, uncontroverted submissions were made that it suited KC Capital’s application that the value of the Greenside building would have a relatively low value. For this reason, it is relevant to note that in this application for an interim examiner, KC Capital 5 See the judgment of Barrett J. in KC Capital v Keegan Quarries [2024] IEHC 257 at para 22. 16 did not rely on the valuations it opened to the High Court in the security for costs application only the previous year. Instead, it relied on a December 2024 Colliers report, which had also been procured for Fairfield, which had some values which were less than half of the previous year’s valuation. This is because this report valued the property at between €19m and €33.25m, depending on fit-out etc.6 These are huge differences in valuation from the previous year’s hearing. Crucially, since this was an ex-parte hearing requiring uberrimae fides, it is relevant to note that the High Court, in this application for an interim examiner, was not told of the existence of the previous valuations, which KC Capital had relied upon in the High Court only the previous year (even though there was over a 100% difference in the valuations) 49. In this Court’s view, this absence of disclosure does not meet the high uberrimae fides obligation imposed on an applicant company which is seeking, on an ex parte basis, to dramatically restrict the rights of third parties. 50. In response to this criticism, KC Capital’s counsel suggested that because the valuations were procured by Fairfield, somehow it should not be accused, by Fairfield, of a breach of uberrimae fides, when all it did was rely on a valuation which Fairfield obtained (as distinct from if it had procured the lower valuation itself). However, this misses the point. It is irrelevant who obtained the various valuations. The point is that, whoever obtained them, in an ex-parte application, KC Capital failed to disclose to the High Court in 2025, a valuation which it had relied upon in the High Court in 2024, which was over a 100% higher than the one it wanted to rely upon. 51. KC Capital also sought to excuse its lack of disclosure by claiming that the application for an interim examiner was made in a rush. However, this Court does not accept that this explains how it failed to bring to the attention of the High Court a valuation it relied upon 6 Report of Interim Examiner dated 28 January 2026, pg. 7. 17 in the previous year, which apparently no longer suited its interests. The Greenside building was its sole asset, and its valuation therefore would have been front and centre in any application for an interim examiner. Accordingly, a failure to disclose this 100% difference in valuation cannot be simply brushed off as something that was overlooked in the rush. This is particularly so, when one considers that this ‘rush’ did not result in KC Capital simply using the same valuation in the High Court as it had done previously (which one might have expected to be the result of a ‘rush’), but rather it resulted in a more favourable valuation being used. Removal of €50,000 from an account beneficially owned by Fairfield 52. However, this was not the allegation of a breach of good faith against KC Capital. This is because sworn evidence was provided by Mr. Frederick Powles on behalf of Fairfield that a significant sum of money (€50,000) was transferred by KC Capital from a bank account (which was secured in favour of Fairfield) to an account of a different company (which was not secured in favour of Fairfield). Mr. Powles avers that: ‘There was no justification for the misapplication of money that was beneficially owned by [Fairfield]. This money should be repaid immediately’.7 Uncontroverted submissions were made that this transfer happened in early December 2025, within hours of KC Capital’s receipt of letters of demand from Fairfield. In this regard, it is relevant to note that it is accepted by all parties that Fairfield will not get back all the money due to it from KC Capital. For this reason, this transfer needs to be seen for what it is, namely an apparent attempt by KC Capital to take what is, in effect, Fairfield’s money before a freeze might be put on that account. All of this means therefore that, before KC Capital applied to the High Court for the appointment of an interim examiner on 22 December 2025, with the effect of depriving Fairfield of its normal rights as a creditor, KC 7 Affidavit of Mr. Frederick Powles, 9 Jan 2026, para. 216. 18 Capital had, in effect, already taken the law into its hands and removed money to which Fairfield would be entitled. 53. In reply, Mr. Kennan avers that: ‘In response to Mr Powles' allegations regarding the €50,000 withdrawal from the Company's bank account, I aver that this was an account held by the Company, and as the sole director and equity owner of the business, I am fully authorized to make transfers and withdrawals in the ordinary course of managing the Company's affairs. There is no provision in the Facility Agreement, Debenture, or any other Finance Document that prohibits such actions, particularly where they are undertaken to meet legitimate creditor obligations and preserve the Company's operations. The funds were used to pay pressing creditors, as evidenced by the attached payment confirmations (Tab 35 - Creditor payments). These payments were essential to maintain relationships with key contractors and legal advisors, ensuring the continuation of the Greenside development and the Litigation. Specifically: (a) €20,000 to Townlink Construction Limited on 12 December 2025, addressing an underpayment arising from the Lender's delay and error in processing a previous drawdown request. Although Townlink was owed a significantly larger sum, this partial payment was made as a gesture of good faith to demonstrate the Company's commitment to resolving outstanding balances, prevent further escalation of disputes, and encourage Townlink to resume suspended works on the Greenside development. At the time, Townlink had halted progress due to prolonged payment delays, risking permanent subcontractor walk-offs and project abandonment; this interim payment helped de-escalate tensions, maintain the contractor's engagement, and buy critical time for a fuller resolution amid the Lender's enforcement pressures. I believed 19 that Oaktree would accept my offer, enabling us to resume operations on site in January, which is precisely why I authorised this payment to sustain momentum and goodwill with the contractor. (Tab 35 - Creditor payments ). (b) €10,000 to Stephen Byrne BL on 6 December 2025, for perfecting an order in the Keegan Quarries Litigation (tab 35 - Creditor payments ). (c) €20,000 Professor Robery - Keegan Plant inspection for discovery February 2nd, accrual.’ 54. Thus, it seems that Mr. Kennan may have been well intentioned in his desire to pay creditors who were working for KC Capital, and he may have felt this was in the best interests of the company. Similarly, he may have felt that he was not doing anything wrong. However, this is not an acceptable justification for removing money that was beneficially owned by Fairfield. It is easy to be generous with other people’s money 55. To put it another way, it is easy to be generous to contractors, lawyers and experts, with another person’s money. However, it is not so easy to be generous with one’s own money, i.e. for a director/shareholder to make a loan or capital contribution to his own company to enable it pay contractors, lawyers and experts, rather than taking money which was beneficially owned by another creditor. In this regard, it is also relevant to note that the money, beneficially belonging to Fairfield, has not been repaid. This is despite the fact, as noted above, that Fairfield has called for its repayment. 56. These actions, in removing money beneficially owned by Fairfield in this manner, are not helpful to KC Capital’s application to this Court for it to use its discretion to confirm the appointment of the Examiner. This is because, as noted by McDonald J. in Re New Look Retailers [2020] IEHC 514, at para. 87 (quoting with approval from Keane J. in Re Butlers Engineering Ltd [High Court, unreported, 1 March 1996]): 20 ‘the court must never lose sight of the drastic abridgement that the giving of that protection effects to the rights of [creditors]’ 57. For this reason, another way to look at this issue, is that KC Capital wants this Court to drastically abridge the rights of Fairfield, after KC Capital has, in effect, put its hand into Fairfield’s pocket, and thus sought to abridge those rights itself. This is not helpful to KC Capital’s application for the appointment of an examiner. 58. The foregoing two instances of a lack of uberrimae fides and a lack of good faith are not determinative of this application. However, they are factors in favour of this Court exercising its discretion not to confirm the appointment of the Examiner, particularly when the beneficiaries of this lack of uberrimae fides and lack of good faith (and the beneficiaries of any successful application to appoint an examiner) are KC Capital and its shareholders/promoters. (v) Cost of the examinership borne by Fairfield 59. It seems clear to this Court from the submissions of the parties that Fairfield is the only creditor ‘in the money’ and so is the only party, as matters stand, with a compelling economic interest in the project (albeit that the two promoters hope that they might, after an examinership, have a financial interest, beyond their salaries as employees, in the project). 60. Accordingly, it seems likely that any costs incurred to date by the Examiner, and in the future, if the Examiner were to be confirmed, would, in effect, come out of Fairfield’s pocket. While this is not a determinative factor, since secured creditors do not have a veto over a company going into examinership, nonetheless this fact, combined with the fact that Fairfield has provided sworn evidence that there is no scenario in which it could envisage 21 supporting a scheme of arrangement,8 means that this is a factor in favour of this Court exercising its discretion against the appointment of the Examiner. Who is paying for all this? 61. To put it another way, it is costing Mr. Kennan and Mr. Connaughton nothing to put KC Capital into interim examinership and to seek the continuation of the examinership. In contrast, the party who is against the continuation of the examinership (Fairfield), is the person paying all the Examiner’s costs and legal fees. While not a determinative factor, this is nonetheless relevant in the exercise of this Court’s discretion. (vi) Examiner fails to disclose fees to party who will have to pay them 62. Related to the foregoing issue is that, not only is Fairfield the one who is, effectively, paying the Examiner’s costs, but uncontroverted submissions were made on behalf of Fairfield that despite seeking same it ‘still did not know how much the examinership was costing’ and ‘what level of fees were being incurred’ including legal costs. This was not a significant ask of the Examiner, considering that as noted by this Court in Beakonford Ltd. v Oonagh Stokes [2025] IEHC 22 at para. 22, in the context of legal costs, that: ‘time and hourly rates are a commonly used and consistent way in which to put a value on the provision of a service, whether professional or non-professional, i.e. the amount of time it takes to provide the service multiplied by an hourly rate to reflect the expertise and experience of the provider of the service.’ 63. Unfortunately, it does not assist KC Capital in its application to this Court that the Examiner was able to procure additional evidence for this hearing (which was not before the Circuit Court, and so its admissibility was, not surprisingly, disputed by Fairfield), yet he was not able to provide to the party, in effect, paying his bill, details of his fees to date or indeed an 8 Affidavit of Frederick Powles, 9 January 2026, para. 150. 22 estimate of his future fees. As noted by counsel for Townlink, the Examiner has not even provided the ‘hours on the clock’, let alone an estimate of future costs. Without being critical of the Examiner, who may, during a rushed examinership process, have been thinking solely about his desire to avoid leaving out any details which might support the survival of the company, nonetheless, it is always important for professionals to remember who is ultimately paying for their time, and the payer’s understandable desire to have details of those costs. 64. Furthermore, the level of an examiner’s fees which have been incurred, and indeed the level of fees which will be incurred in the future (including legal costs), could be a relevant factor in the exercise of a court’s discretion to appoint an examiner. For this reason, it would have been preferable if there was complete transparency about these matters. The fact that the Examiner kept details of his costs from Fairfield (and so also from the Court) achieves nothing, save for raising concerns, which may or may not be justified, about the level of those fees. This is particularly so, since it is clear from Re Vantive Holdings (No 1) [2009] IESC 68 at pg. 21, per Murray C.J., that: ‘the court may consider whether one or more creditors will suffer prejudice as a result of the appointment of an examiner’. Clearly, one such possible prejudice is the level of fees which a creditor, such as Fairfield, will end up, in effect, paying out of its own pocket. Unfortunately, to fill this gap in knowledge regarding the level of fees in this case, counsel for Fairfield, in arguing that it should not have to, in effect, pay for an examinership, was left having to speculate that the total costs of the examinership, if permitted, could end up being in the ‘hundreds of thousands of euro’. Since the Court has to consider not just whether creditors might be prejudiced by the appointment of an examiner, but also the extent of that prejudice, this 23 Court was left having to do so, without knowing whether the costs to date, and in the future, are likely to be one hundred thousand euro or several hundred thousand euro. It is easy for examiner to be blasé about disclosing fees where payer is obliged to pay 65. In this regard, just as it was observed earlier that it is easy to be generous with other people’s money, so too it might be observed that it is easy for a professional to be blasé about the level of fees that he/she is incurring, if he/she knows that those fees have to be paid by a third party. 66. To put it another way, if a professional was asked by an ‘ordinary’ client (i.e. one who is not required by statute to pay the professional’s fees), it is hard to imagine that the professional would not promptly provide details of his/her fees which had been incurred to date and likely fees to be incurred in the future. It seems to this Court that just because the party, who is paying those fees, has not chosen to engage the professional (but is effectively required by law to pay them), does not mean that the payer should be treated any differently than any other client. 67. Thus, Fairfield should have been provided with details of the fees it requested. More importantly, the Court would then have those details, in order to enable it to determine the extent of any prejudice which might be suffered by the creditors as a result of the appointment of the examiner. (vii) Little prospect of an approved scheme of arrangement 68. Although it is not determinative of the exercise of this Court’s discretion, it is nonetheless a factor to be taken into account, that uncontroverted submissions were made by Fairfield that it is the only ‘in the money’ creditor (and so, it seems, the only creditor with an extant economic interest in the company). In this regard, it is relevant to note that Fairfield has indicated that there is no scenario in which it would support a scheme of arrangement. 24 69. For this reason, Fairfield states that having an examinership is both futile and a waste of its money (since the Examiner’s costs will have to be paid ahead of the repayment of Fairfield’s debt). 70. This Court cannot conclude at this stage that an examinership would be futile, since one cannot tell what form the scheme of arrangement might take (and whether it would prejudice Fairfield or not). Nonetheless, while not determinative, it is a factor against this Court exercising its discretion to appoint an examiner, that the only ‘in the money’ creditor believes that it is futile. This is because in Re Fergus Haynes [2008] IEHC 327, Laffoy J. held that one of the factors in determining that the relevant company could not survive as a going concern was the negative attitude, of the secured creditors, to any possible scheme of arrangement. If the negative attitude of the secured creditors is a factor in determining whether a company could survive as a going concern, it seems to this Court that the negative attitude of the secured creditors should also be a factor in determining whether a court should confirm the appointment of an interim examiner. Thus, the negative attitude of Fairfield to any scheme of arrangement is a factor, albeit not a decisive one, in favour of this Court’s refusal to confirm the appointment of the Examiner. (viii) The nature of the ‘trading’ of KC Capital 71. As previously noted, KC Capital is, in essence, a special purpose company which exists purely for the purpose of holding legal title to a site and taking on a loan for its development and the repayment of that loan. The substantive work in relation to that site is being done by 70 workers, who are employed by an unrelated third-party company, Townlink, and by 57 subcontractors. 72. However, it is relevant to note that, even if these workers were directly employed by KC Capital, the result might not be much different, as is clear from Re Laragan Developments. 25 That case concerned a substantial construction company with employees who carried out building works on a variety of developments (and so it was very far removed from what might be called an ‘insubstantial’ special purpose company, as here). Nonetheless, it is to be noted that the nature of such building works is that putting property development companies into examinership (unlike say a manufacturing company) might not result in any additional jobs being saved, so as to justify the appointment of an examiner. As noted by Clarke J. (as he then was), at para. 8.12: ‘In addition it is necessary, therefore, to consider what would have been saved by approving the scheme. It would appear that the only jobs which might be saved would be those jobs which would be required to finish out the development under construction. However, if there is any commercial reality to those developments being first finished at this stage, then it is clear that they will be finished out in any event so that the jobs associated with the finishing out of those companies will be saved in any event. No additional jobs will be saved by approving the scheme of arrangement.’ 73. In this case, there is no doubt that the Greenside building will be completed (whether through examinership or receivership) and indeed that no additional jobs will be saved by confirming the appointment of the Examiner (save for the two promoters’/shareholders’ jobs). Thus, it seems to this Court that the nature of the ‘trading’ carried on by KC Capital, albeit indirectly through Townlink, as one in which a site is being developed, is such that no additional jobs will be saved by appointing an examiner. This is a further factor in favour of not appointing the Examiner. 26 (ix) Balancing the interests of creditors against those of the company 74. It is clear from the judgment of Fennelly J. in Re Gallium Limited trading as First Equity Group [2009] IESC 9 at para. 47 that the protection period offered by examinership is there to facilitate examination of the prospects of a rescue. He points out that: ‘however, that protection may prejudice the interests of some creditors. The court will weigh the existence and degree of any such prejudice in the balance.’ Murray C.J., in Re Vantive, also makes clear that the Court has a ‘broad discretion’ (at pg. 20) in deciding whether to confirm the appointment of an examiner. 75. Reliance on these two authorities means that this Court has a broad discretion when balancing the interests of the creditors (and in this regard Fairfield appears to be the only creditor, as things stand, with an economic interest in the company/property) on the one hand, and the two promoter/employees on the other hand. Since this Court must never lose sight of the ‘drastic abridgement’ that would be caused to Fairfield by the confirmation of the appointment of the Examiner, it seems to this Court that this balancing exercise, where the only jobs at stake are those of the two promoter/shareholders, comes down in favour of Fairfield, and so against the confirmation of the appointment of the Examiner. It appears to this Court that the primary parties who have benefited to date from the examinership, and from any future examinership, are the shareholders. This is apparent, when one considers that the Second Report of the Interim Examiner dated 16 February 2026 suggests that the two shareholders/promoters would not be wiped out in any re-structuring (which they would be the case in a receivership), but rather would only have their shareholding diluted, entitling a prospective investor to a percentage of the shareholding.9 In this regard, counsel for Townlink observed that Mr. Kennan ‘wants to continue the project, at any cost, except to himself’. 9 Second Report of the Interim Examiner, 16 February 2026, pg. 38. 27 CONCLUSION 76. In summary, KC Capital is a special purpose company that was incorporated by two investors for a very limited purpose, namely, to hold legal title to a property which was to be developed. That company was also to operate as a conduit for funds in from a lender and then out in respect of interest/loan repayments to that lender. The company’s only employees are those two investors. In this Court’s opinion, and to quote from Clarke J., KC Capital is a long way from being ‘a real enterprise with real jobs’ or from being described as a company which should be granted protection on the grounds that it is for the ‘benefit of the economy as a whole’ and, in order to save ‘as many as possible of the jobs which may be at stake’ (which in this case amounts to the sum total of the two jobs of the investors). 77. Accordingly, this Court concludes that the interim examiner should not have his appointment confirmed by this Court, and this Court therefore has no hesitation in affirming the decision of O’Connor J. in the Circuit Court. 78. This matter will be put in for mention a week from its delivery at 10.45 a.m. to deal with any final orders and costs. However, on the assumption that it should not be necessary to expend costs on a further court sitting, and in order to facilitate the parties agreeing all outstanding matters, the parties have liberty to notify the Registrar if such a listing proves to be unnecessary. This is particularly so in light of the clear implication from Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189 at para. 94, that there is an onus on lawyers to take a broad-brush approach to costs and not to engage in the inefficient use of court resources and costly ‘nit-picking’. 28