
Did Liam Carroll's fixation with secrecy almost cost him his Zoe Group empire? Not according to his wife Róisín and his finance director John Pope, who told the High Court last week that the developer's stress levels had affected his judgment and his decision not to furnish the business plan and asset valuations to the court initially.
That information formed one of the crucial new pieces of evidence that Zoe brought before the courts in support of its second bid for examinership for seven of its companies. The addition of engineering and design company Royceton to the examinership petition meant its employees could come out in favour of it, while the disclosure by Carroll's senior counsel, Michael Cush, that "if these companies fall, [building contractor] Danninger falls" meant Danninger and Royceton's creditors were able to support the petition for a new examinership hearing.
That petition – "extraordinary and unprecedented in the history of corporate litigation" – proved successful after Mr Justice John Cooke ruled that Carroll can again apply for examinership, though a detailed judgment on the decision will not be available until Monday morning.
Mr Justice Cooke clearly had some doubts about the new evidence, however, asking on Thursday if it would "be open to this court to say that 'utmost good faith' was not exercised in relation to the first petition?"
Mr Justice Cooke's decision to allow a new bid for examinership came after Carroll and those close to him finally signalled that they were willing to furnish the business survival plan and the property valuations to the court. It was a sudden about-turn. In relation to the new independent accountant's report, Cooke had said on Thursday morning that "the difficulty through all this is that he's given his opinion based on reference to a completely different document that you insist must be kept secret".
Carroll and his advisers finally capitulated that afternoon, with Cush stating that if the petition is granted they are now willing to have the values placed before the court, whether confidentiality is assured or not.
Pope's affidavit said Carroll had decided not to furnish the court with the business plan and valuations "against financial and legal advice and against the concerns [fellow director David] Torpey and I have". He added that he had "underestimated the medical situation and the mental stress" which Carroll was under.
White-haired Pope, wearing a red polka-dot tie and grey suit on Thursday, occasionally gripped the pew in front of him during the hearing, while Torpey, shirt button open and tie loosened, scribbled occasionally in a black notepad, passing the notes on to a solicitor who ushered them to the solicitors sitting in front of Carroll's counsel.
Mr Justice Cooke raised the issue of why documents supporting the banking finance promises had not been forthcoming.
"I don't know," said Cush.
"Well, shouldn't you know?" asked the judge.
"These are decisions made by other than the petitioner," Cush said, saying they had asked but they hadn't been made available.
"Isn't that crucial? That's one of the keys to the Supreme Court judgment," Cooke said.
BoSI had already signalled to the Supreme Court that it was willing to advance additional monies. Last week, AIB said "it is favourably disposed to finance Carroll's developments on a project-by-project basis", subject to "usual credit controls".
Anglo also confirmed that it was still willing to lend "project-specific" finance of €8m to fund the completion of the bank's new headquarters earmarked for North Wall Quay. The money is to be spent on "cladding" the exterior of the skeleton structure which awaits An Bord Pleanála's verdict on whether it can be retained.
"That's an absolutely huge project," Cush said.
New property valuations of the group's portfolio were introduced showing the unusual situation whereby the group's cash position improved despite a fall in the value of the assets. Since the business plan was formulated, interest rate cuts have saved it €23.4m and it has rented residential units for €10.4m a year, €3m more than expected.
The planned sale of ICG shares did not go ahead but the dividends from the shares provided income above that envisaged in the plan. That and apartment sales mean the group's "cash position has substantially improved" even if the "valuation of assets has declined".
The group owes annual interest of €56.4m, and the income of €38.5m would cover more than two-thirds of that, while increased lettings "will ease lending pressures".
That said, the group's new valuations said that a disposal or development of the commercial portfolio over three to five years would now be required, instead of the three years originally envisaged. Since the December valuations, development land values had fallen between 15% and 25% and the investment properties had fallen 10%-15% in value, the court was told.
The judge's decision means the Zoe group is the company equivalent of a black cat. It could be weeks before we know whether it's reached the last of its nine lives.