Omnimax International LLC v Simon Cullen & Ors
[2024] EWHC 2367 (Ch)
Sean Richard Ormsby Lindsay v Penny O’Loughnane & Anor (Re FX Solutions Ltd (in liquidation))
14 September 2023
[2023] EWHC 2247 (Ch)
High Court
Two people were directors of companies that went bust. A customer sued them for misusing company money. The judge ruled against them on some things (they had to pay back illegally taken money), but needed more information before deciding on other things.
Key Facts
- •Applicant seeks relief under s 212 Insolvency Act 1986 for misfeasance by respondents as directors of FX Solutions Ltd and GlobalFX Solutions Ltd.
- •Respondents were previously disqualified as directors.
- •Applicant, a creditor, brings the claim as the liquidator is unable/unwilling to do so.
- •Applicant seeks summary judgment for restitution of funds: £715,162 (illegal director's loan), £324,521.75 (unlawful transfer to solicitors for property purchase), and £102,300 (payment to first respondent's stepfather).
- •Prior proceedings (Lindsay v O’Loughnane) established the illegality of the director's loan.
- •Respondents claim repayment of the director's loan and the funds used for property purchase, but lack sufficient evidence.
- •Dispute over whether company accounts were client accounts and whether funds were used improperly.
- •First respondent claims lack of involvement in some transactions.
Legal Principles
Summary judgment can be granted if a claimant has no real prospect of succeeding or a defendant has no real prospect of successfully defending.
CPR Part 24.2
Directors' duties (ss 171-177 Companies Act 2006) are owed to the company if solvent, but to creditors if insolvent or nearing insolvency.
Companies Act 2006
Court can reject manifestly incredible evidence but exercises caution.
None explicitly stated, but implied in the judgment.
Outcomes
Summary judgment granted against the second respondent for the illegal director's loan (£715,162).
Flaux J's prior finding of illegality and lack of credible evidence of repayment.
Conditional order directing payment into court for the unlawful transfer of funds used for property purchase (£324,521.75).
Insufficient evidence to definitively prove or disprove respondents' claim of repayment; need for further investigation.
Application dismissed regarding payment to first respondent's stepfather (£102,300); respondents given leave to defend.
Insufficient evidence to determine whether the payment was improper; requires oral evidence at trial.
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