The Court held that the onus of proof under the legislation lay with the Examiner to show that a proposed scheme of debt restructuring was not unfair to any interested party.

[1] An injunction was granted in July 2011 in order to prevent McInerney Homes from taking certain steps that would weaken the Banks security.

As such the Supreme Court was of the view that the trial Judge’s approach was consistent and that a creditor may be required to accept less than it would obtain in circumstances of liquidation or receivership.

[5] Addressing the second question the Supreme Court majority panel held that “once an objection is made under Section 25[5] the onus of establishing the matter is on the objector”.

As such, the Court is prohibited from approving a scheme unless it is satisfied that this is not unfairly prejudicial to any creditor and the party seeking this takes the burden of proof.

[7] Addressing the fifth and final question the Supreme Court majority panel was of the view that the trial Judge was correct in refusing to re-open the decision in light of the improved offer from Oaktree.

[1] In dissent Justice Fennelly expressed the view that the right to object on the grounds of unfair prejudice was probably included in Section 25 of the Companies Act 1990 and that this does not affect the burden of proof.