Tuesday 23 May 2017

Kendrick settles '€4.7m failure to pay case'

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Gordon Deegan

KENDRICK Investments, the company behind the Topaz fuel and convenience store chain, has effectively settled its legal action against a Dublin-registered company over alleged failure to pay €4.7m to complete a share-purchase agreement, the Commercial Court has heard.

The case has been settled subject to a payment being made and could be adjourned on consent for mention in two weeks to facilitate that, Rossa Fanning SC, for Kendrick, told Mr Justice Brain McGovern.

A hearing date could also be vacated, counsel added. The judge made those orders.

In its action, Kendrick, which holds 99pc of issued share capital in Topaz Energy Group Ltd (TEGL), claimed Circle K Holding Ireland Ltd, Earlsfort Terrace, Dublin, had made a €1.8m payment as part of the overall €7m share purchase agreement but failed to pay the balance of €4.7m.

Kendrick sought judgment against Circle K for that sum.

In an affidavit previously before the court, Kendrick director Dermot Hayes said, under the December 2015 agreement involving his firm and certain convenantors, Kendrick agreed to sell its shares in TEGL to 9121-2738 Quebec Inc.

Under an assignment of rights (deed of novation) mechanism between Kendrick, businessmen Denis O'Brien, Emmet O'Neill and Sean Corkery, Circle K Holding Ireland, Circle K IOM Ltd and 9121-2738 Quebec Inc, it was agreed Circle K Ireland would assume the rights, benefits, obligations and liabilities of the Quebec company under the share purchase agreement, he said

Mr Hayes said the share-purchase agreement provided the defendant would pay Kendrick €7m under the "Dublin Port Additional Consideration", relating to a February 2016 lease for certain premises at Dublin Port and a retail lease which was not to be terminated before August 2017.

The Dublin Port consideration was satisfied and the €7m became payable, less an agreed €480,000 related to working capital, he said.

While Circle K Holding Ireland had paid some €1.8m in September 2013, the remaining €4.7m was still owing, he said.

Kendrick demanded payment on September 23 last but Circle K failed to pay the balance and raised a "wholly unmeritorious" breach of warranty claim, it was alleged.

In correspondence, it was suggested Kendrick had failed to disclosed details of the financial situation relating to the Exol Group, Mr Hayes said.

Irish Independent

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