Injunctions against Shane Byrne came like ‘spear tackle’, court hears

Lawyers for former rugby international Shane Byrne have told the High Court that certain claims about how a waste disposal company’s affairs had been conducted were “very damaging” and would be fully responded to.

Oxigen Environmental Ltd’s application last week for interim injunctions against Mr Byrne and his brother William, arising from their conduct of the affairs of AWD Waste Solutions Ltd, was akin to the infamous “spear tackle” during the 2005 Lions tour of New Zealand, Richard Kean SC told Ms Justice Leonie Reynolds.

He said the injunctions application came after Mr Byrne had agreed to the appointment of independent auditors to AWD Waste Solutions Ltd – of which the brothers are directors, holding a 49 per cent shareholding. Oxigen holds 51 per cent.

Ronnie Hudson, for Oxigen, said an independent auditor was not in place in AWD at the time of the injunctions application.

Oxigen’s proceedings, brought under provisions of the Companies Act, concern the conduct of the affairs of AWD and include a bid to buy out the brothers’ shareholding.

Oxigen became involved with AWD from 2012 but says the Byrne brothers are in control of the day-to-day running of the company’s affairs from offices in Inch, Co Wexford.

Oxigen’s concerns about the conduct of the affairs of AWD include that claims books and records of the company had been removed and destroyed, that money may be missing, and about payments being made in cash.

It says cash jobs invoiced for emptying septic tanks which should have been charged at €250 were allegedly only charged at one cent on the company invoices, leaving cash unaccounted for to the company.

It is also concerned the brothers had used company money for “lavish” personal expenses.

Interim injunctions

Those concerns were outlined in an ex-parte application (only one side represented) last week when Oxigen got interim injunctions restraining disposal or destruction of the books and records of AWD pending any further orders.

When the matter returned before Ms Justice Reynolds on Tuesday, Shane Byrne was in court.

Mr Kean, for both brothers, sought an adjournment to prepare a full sworn statement responding to the claims by Oxigen.

While the Byrnes would comply with the court’s orders, which had been made appropriately on the evidence before the judge last week, that compliance was not to be regarded as any admission of the claims made, Mr Kean said.

Mr Hudson said Oxigen wanted an additional order, restraining the brothers from ordering material for the company or invoicing customers of the company for work done.

The judge remarked that that application appeared to arise from a newspaper article of October 10th last, which referred to Mr Byrne donating garden equipment to Aughrim Tidy Towns.

Oxigen claimed in an affidavit that the donation was done without its consent and Mr Byrne had sent in an invoice which, Oxigen claims, showed disregard of Oxigen’s interests.

The judge remarked that the article, where Mr Byrne had donated garden equipment using an old company name, appeared to have “fuelled the flames”.

She granted a two-week adjournment on Mr Byrne’s undertaking that ordering and invoicing is limited to the actual business of the company and also urged the sides to consider mediation of the dispute.

Earlier, in seeking the adjournment, Mr Kean said “feelings are running high” and the effect of this matter on his clients was like the spear tackle.

It had led to very catastrophic adverse publicity when there had been no findings of fact and Mr Byrne saw some of the contents of Oxigen’s affidavit as “very egregious and very damaging”, he outlined.

Independent auditors

When Mr Kean said Mr Byrne had agreed to independent auditors being appointed, Mr Hudson said Mr Byrne had agreed in principle to auditors but auditors had been allowed into the premises only on Monday.

Mr Kean said that was “hotly disputed” and Mr Byrne was “absolutely appalled” by Oxigen’s assertion that he had prevented independent auditors attending at the AWD premises.

The judge said the material before her last week concerning a company “caused me concern” and, having regard to it, and being told undertakings had not been forthcoming, the order made was appropriate but she understood there was “another side”.

Mr Kean said the undertaking had been sought as Mr Byrne had been “walking into a room”. He said Oxigen, a 51 per cent shareholder, was seeking to buy the shares of the respondents and Mr Byrne got short notice of the auditor’s appointment.

“Our affidavit will illustrate the truth,” he said.

Mr Hudson said it was only on Monday this week that the auditors had gained entry and his instructions were that the auditors had been prevented from entering before that by Mr Byrne.

Oxigen had lost confidence in Mr Byrne and had sought but had got no explanations for cash discrepancies, he said.

Mr Byrne continues to be paid his salary on a without-prejudice basis, he added.