Court protection petition for chocolate company prepared ‘in secret’

A petition to secure High Court protection for a chocolate food products company was prepared in secret from its board, the High Court was told.

Ina’s Kitchen Desserts is trading, no one is refusing to trade with it, and it also has a plentiful supply of finance to meet its requirements, said Bernard Dunleavy SC for the majority shareholder Starkane.

Counsel said Starkane knew nothing of the petition for examinership brought by a director and 10 per cent shareholder Barry Broderick until it was moved. It was against this background the court must be scrupulous in ensuring it is presented with a genuine insolvency.

Mr Dunleavy was making submissions on the second day of a hearing before Mr Justice Michael Quinn over whether the court should approve examinership for the firm, set up 26 years ago by Ina Broderick, Barry Broderick’s mother.

The application is supported by Mrs Broderick, her husband Michael and Barry’s brother Bernard, who are also shareholders.

It is opposed by Starkane which was incorporated by the BDO Capital Development Fund as a special purchase vehicle to acquire shares and put money into the company and now owns 75 per cent of the shares.

Based in Tallaght, Dublin, its registered business names are Ina’s Kitchen Desserts, Broderick’s, Ina’s Handmade Foods and Broderick’s Handmade. It employs 107 people.

Restructure

In the petition it is claimed that court protection is required to restructure the company and deal with accumulated debts of nearly €9 million.

Mr Broderick claims the company has been forced to postpone payments to Ulster Bank, a secured creditor owed €2.6 million and neutral on the petition, and to Revenue, owned some €407,000, the court heard.

In 2018 it had to get an extension of its facilities from Ulster Bank to pay wages to its employees at Christmas. This year the company found itself obliged to avail of the Covid-19 pandemic payment for employees, the Temporary Wages Subsidy Scheme.

This, it is argued on behalf of the petitioner, amounted to an admission by the company of being unable to pay its debts as they fell due.

Mr Dunleavy, for Starkane, said there was no meaningful insolvency and examinership should not be approved.

He said Starkane was committed to this company and could not recover the substantial investment it made unless it got a significant degree of profitability.

Tony Proudfoot, a director of Ina’s Kitchens, says in an affidavit the petition is entirely unwarranted in circumstances where court protection is not needed.

He said the application is in truth an effort by the Broderick family to “wrestle back control” of the company in circumstances where they have abandoned earlier threats to bring proceedings against Starkane arising out of substantially the same issues.

Petition

He said prior to Starkane taking over the management of the firm it was facing imminent failure and liquidation, and this petition represented a threat to its success “by seeking to wind the clock back to 2017 when the Brodericks were at the helm”.

He said an expert report prepared for the company showed it was not insolvent having regard to the nature of the debt to Starkane.

The company had no pressing creditor payments and was able to meet its creditor obligations, which was particularly significant given the commitment of its funders to support it, he said.

The hearing continues.