Exceptional Cross‑Examination in Winding‑Up Petitions: Commentary on Anvil Real Estate Ltd v Companies Act 2014 [2025] IEHC 630

1. Introduction

This judgment of Cahill J in the High Court addresses a genuinely novel and practically significant question in Irish company law and civil procedure: when, if ever, is it appropriate to direct the cross‑examination of a deponent on a petition to wind up a company on the ground of deemed insolvency?

The case arises from a bitter dispute between a petitioner creditor and Mr Somerville, a director and beneficial owner of Anvil Real Estate Limited (“Anvil” or “the Company”). The petitioner claims that he advanced €551,000 to the Company as a loan repayable on demand; the Company maintains this payment was an equity investment in return for shares, or alternatively, that if it was a loan, it was not repayable on demand. Both sides attack the credibility of the other’s evidence, supported by limited and sometimes inconsistent documentation.

Simultaneous winding‑up petitions were issued against six related companies under ss.569(1)(d) and 570(a) of the Companies Act 2014 (“the 2014 Act”) on the basis of deemed insolvency. The present judgment deals with a “pathfinder” motion in the Anvil petition:

The petitioner’s motion to cross‑examine Mr Somerville on his affidavits.
A reciprocal motion (held in reserve) by the Company to cross‑examine the petitioner and two supporting deponents if the petitioner’s motion succeeded.

The case sits at the intersection of:

the statutory regime for winding‑up on the ground of inability to pay debts (ss.569–570, 2014 Act);
the long‑established test that a petition must be dismissed if there is a bona fide dispute on substantial grounds about the alleged debt; and
the post‑RAS Medical requirement that a court should not reject sworn evidence on credibility grounds without affording an opportunity for cross‑examination.

The judgment is important because it:

clarifies the source and limits of the court’s jurisdiction to order cross‑examination on a winding‑up petition (Order 40, rule 1 RSC, not Order 40, rule 36);
reconciles the “bona fide dispute” test in winding‑up law with the “credibility/reliability” framework from RAS Medical in affidavit‑based litigation; and
establishes that exceptional, tightly confined cross‑examination may be necessary even in a summary petition procedure where a party’s case materially depends on impugning the opposing deponent’s honesty or reliability.

2. Summary of the Judgment

2.1 Procedural and Factual Context

The petitioner issued six winding‑up petitions (including against Anvil) in October 2024, asserting that each company was deemed unable to pay its debts under ss.569(1)(d) and 570(a) of the 2014 Act, following service of statutory demands exceeding €10,000 with no payment within 21 days.

In Anvil’s case, the alleged debt is €551,000. The key uncontested facts include:

Anvil, incorporated in February 2020, acquired a property (Villa Marina, Kenilworth Road, Dublin) in August 2020 for €690,899.
Pinemount Finance Limited advanced €510,000, secured by a charge registered at the CRO.
In October 2020, Mr Somerville sought to redeem the Pinemount loan; the redemption figure was confirmed at €551,000.
The petitioner transferred €551,000 to Anvil’s solicitor on 30 November 2020; the Pinemount loan was discharged on 7 December 2020.
Anvil’s 2020 financial statements (approved by Mr Somerville) show loans to creditors totalling €690,799.

The dispute is not about whether the money was paid, but what legal character it had:

The petitioner says: it was an interest‑free loan repayable on demand; a demand letter of 7 September 2024 was served; non‑payment renders the company deemed insolvent.
The Company (via Mr Somerville) says: the petitioner invested in Anvil in return for shares; the funds represent equity, not debt. Alternatively, if a loan, it was not repayable on demand but only on a sale of the assets/business/shares.

There is a marked lack of formal documentation: no written loan agreement, no written investment agreement, and inconsistent positions in correspondence and parallel plenary proceedings about the petitioner’s alleged beneficial shareholding.

2.2 The Motions

The petitioner initially served notices to cross‑examine Mr Somerville under Order 40, rule 36 RSC (trial on affidavit). The Company objected that winding‑up petitions are not “trials on affidavit” within Order 40, rule 36, and that leave under Order 40, rule 1 was required instead.

By order of 27 May 2025, the High Court permitted a “pathfinder” motion in the Anvil petition:

The petitioner moved to confirm the effectiveness of his Order 40, rule 36 notices, or alternatively for an order under Order 40, rule 1 directing Mr Somerville’s attendance for cross‑examination.
The Company filed a protective motion to cross‑examine the petitioner and his supporting deponents, but confirmed it would only proceed if the petitioner’s motion succeeded.

The parties exchanged extensive affidavits and submissions. Disputed topics included:

whether the €551,000 was a loan or a share investment;
whether any loan was repayable on demand or only on sale;
the consistency of the accounts and CRO records with each side’s case; and
the petitioner’s alleged beneficial shareholding and the role of related entities such as JS Real Estate Services and Flinbury Limited.

The Court ultimately narrowed the material dispute to a single core issue:

Was the petitioner’s €551,000 advance a loan or an equity investment in Anvil; and if a loan, was it agreed to be repayable on demand?

2.3 Legal Holdings

The Court makes four key determinations:

Jurisdictional Basis for Cross‑Examination
A winding‑up petition is not a “trial on affidavit” within Order 40, rule 36 RSC. The correct procedural route to seek cross‑examination in petition proceedings is Order 40, rule 1, which requires an application to the court. This follows Lehane v Dunne and confines Order 40, rule 36 to trials on affidavit in summons proceedings.
General Approach to Cross‑Examination in Winding‑Up Petitions
The court has an undoubted discretion under Order 40, rule 1 to order cross‑examination on a petition, but that discretion:
- must be exercised sparingly,
- recognises that winding‑up petitions — especially those based on deemed insolvency — are intended to be dealt with summarily and on affidavit, and
- acknowledges there is no prior example of cross‑examination being allowed in such petitions in Ireland.
Cross‑examination should therefore be exceptional.
Interaction with RAS Medical and the “Credibility” Requirement
Drawing on RAS Medical, Re Bayview Hotel (Waterville) Ltd and Re Green D Projects Ireland Ltd, the Court holds that:
- Where a party’s case materially relies on asserting that the opposing deponent’s sworn evidence is not credible or reliable (e.g. contradicted by documents or by inconsistent affidavits), cross‑examination is generally required before that evidence can be rejected.
- This applies even if the proceeding is not a conventional “final trial” — the key is that the issue is material to the party’s evidential burden.
- By contrast, the concept of a bona fide dispute on substantial grounds is a filtering test, not a direct inquiry into personal honesty; it does not itself require cross‑examination.
Outcome: Limited Cross‑Examination Ordered
Because both sides directly attack the other’s veracity on the central issue (loan vs equity; repayment terms), and because of the risk (demonstrated in Re Bayview and Re Green D) that the petition could be dismissed solely for lack of cross‑examination, Cahill J:
- grants an order under Order 40, rule 1 directing cross‑examination, but
- tightly confines it to specific paragraphs in the affidavits dealing with:
  - the character of the €551,000 payment (loan vs shares); and
  - if a loan, whether it was repayable on demand.
The Court emphasises that:
- This is not a licence to conduct a plenary trial within a petition.
- Cross‑examination must be limited to material credibility/reliability issues on those narrowly defined questions.

Costs are provisionally directed to be costs in the cause, subject to submissions.

3. Detailed Analysis

3.1 The Statutory and Procedural Framework

3.1.1 Winding‑Up on Deemed Insolvency

Section 570(a) of the 2014 Act sets out when a company is deemed unable to pay its debts:

“For the purposes of this Act, a company shall be deemed to be unable to pay its debts— (a) if— (i) a creditor… to whom the company is indebted in a sum exceeding €10,000 then due, has served on the company… a demand in writing requiring the company to pay the sum so due, and (ii) the company has, for 21 days after the date of the service of that demand, neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor…”

The well‑established overlay from Stonegate Securities v Gregory and its adoption in Irish law (Re Pageboy Couriers, Re WGM (Toughening) Ltd (No. 2)) is that:

If the company bona fide and on substantial grounds disputes liability for the debt, the petition will be dismissed or restrained.
A winding‑up petition is not a legitimate mechanism to enforce a debt that is genuinely disputed.

Re Bayview Hotel (Waterville) Ltd summarises the evidential burden:

The petitioner must prove:
- the existence of the debt;
- service of the statutory demand; and
- continued non‑payment.
The company need not prove that it will win on the merits; it need only show that the dispute is bona fide and based on substantial grounds.

Crucially, in a petition based on deemed insolvency, the court is not deciding as a matter of probability that the debt is or is not due; it is deciding whether:

there is a prima facie debt, and
any defence raises a genuine, substantial dispute that should be resolved in ordinary proceedings rather than by the drastic remedy of winding‑up.

3.1.2 Affidavit Evidence and Cross‑Examination under Order 40

Two rules of Order 40 RSC are central:

Order 40, rule 1:
“Upon any petition, motion, or other application, evidence may be given by affidavit, but the Court may, on the application of either party, order the attendance for cross‑examination of the person making any such affidavit.”
This is a discretionary power, applicable to petitions and interlocutory motions.
Order 40, rule 36 (“trial on affidavit”):
Where a case is tried on affidavit (typically after a direction in plenary, summary or special summons proceedings), a party may serve a notice requiring production of a deponent for cross‑examination at the trial without leave. If the deponent is not produced, the affidavit generally cannot be used.

Following Lehane v Dunne, Cahill J confirms that:

Order 40, rule 36 only applies in trials on affidavit in summons‑based proceedings.
In proceedings commenced by petition or originating notice of motion, and in interlocutory applications, cross‑examination requires leave under Order 40, rule 1.

The petitioner’s initial reliance on Order 40, rule 36 was therefore misplaced. The Court treats the motion as an application under Order 40, rule 1 and proceeds accordingly.

3.2 Precedents and Their Influence on the Court’s Reasoning

3.2.1 RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] 1 IR 63

RAS Medical is the cornerstone of the Court’s approach to cross‑examination in affidavit‑based proceedings. Clarke CJ held:

If a party wishes to argue that an opponent’s sworn evidence is not credible or not reliable, it is incumbent on that party to cross‑examine the witness and put the criticism to them.
It is unfair to invite a court to reject unchallenged sworn evidence on credibility grounds without giving the witness an opportunity to respond in oral evidence.
This applies:
- where there is conflicting affidavit evidence, and
- where documentary evidence is said to undermine the reliability of sworn testimony.
The obligation arises where the point is material to the court’s final determination of the case.

Cahill J distils the core principles:

A party may choose not to attack credibility and instead accept the evidence at its height, arguing that it is insufficient in law or fact. In that case, cross‑examination is unnecessary.
But where:
- there are material factual conflicts that must be resolved for the court to make a final determination; or
- a party’s case depends on impugning the credibility or reliability of an opponent’s sworn evidence,
cross‑examination becomes necessary.

RAS Medical was initially articulated in the context of judicial review and appellate review of a “final” determination. The question for Cahill J was how far this logic extends into the more summary and filtering environment of a winding‑up petition on deemed insolvency, where the court does not finally determine the underlying debt.

3.2.2 IBB Internet Services Ltd v Motorola Ltd [2013] IESC 53 and Interlocutory Applications

In IBB v Motorola, Clarke J emphasised that cross‑examination on interlocutory applications (there, security for costs) should be “exceptional”. Interlocutory orders are typically provisional and made on the basis of a broad assessment of affidavit evidence without resolving conflicts of fact. This principle has been reiterated in:

Trafalgar Developments Ltd v Mazepin [2021] IEHC 69;
CAB v Routeback Media AB [2024] IECA 112; and
Cave Projects Ltd v Gilhooley [2022] IECA 245.

However, these authorities distinguish situations where the court is making a final determination of substantive rights (where cross‑examination may be necessary) from those where it is imposing a provisional procedural order.

Cahill J notes the difficulty of classifying a winding‑up petition as either “interlocutory” or “final”:

A winding‑up order has drastic, final effects on a company’s business, directors and creditors.
Yet, in a petition based on deemed insolvency, the court does not finally decide the underlying debt; it only decides whether there is a bona fide dispute on substantial grounds.

Rather than forcing the petition into either category, the Court adopts a functional approach: the key question is whether RAS Medical’s rationale demands cross‑examination in the specific procedural and evidential circumstances of the case.

3.2.3 Re Bayview Hotel (Waterville) Ltd [2022] IEHC 516

Re Bayview is the closest Irish analogue to Anvil. Two former associates fell out over a historic loan (evidenced by a mortgage debenture) versus a capital investment, with contested repayment terms. As here:

There was a pervasive lack of formal documentation of their “agreements”.
The affidavits contained inconsistencies and contradictions, particularly from the non‑company party (Mr O’Shea).
The petitioner’s case under s.570(f) (deemed insolvency) depended on the court preferring his sworn evidence over that of Mr O’Shea.

Butler J, applying RAS Medical, held that:

Because the petitioner’s case necessarily required the court to reject Mr O’Shea’s affidavit as not credible, cross‑examination was required; without it, the court could not properly assess credibility.
In the absence of any cross‑examination motion, the petitioner had not discharged his burden of establishing the debt for the purposes of deemed insolvency.
The petition on deemed insolvency therefore failed, although the court still granted winding‑up on the separate ground of factual insolvency.

Re Bayview is crucial because it:

applies RAS Medical directly to winding‑up petitions; and
demonstrates that failure to cross‑examine when credibility is attacked can be fatal to a petition based on deemed insolvency.

Cahill J reads Re Bayview as meaning:

If a petition “necessitates or depends on the rejection of sworn evidence as lacking in credibility or reliability”, it cannot be granted absent cross‑examination.

3.2.4 Re Green D Projects Ireland Ltd [2023] IEHC 773

Re Green D concerned a petition based on factual insolvency. There was conflicting evidence from the company’s accountant, whose credibility was challenged. Sanfey J held:

In some cases, documentary and uncontested evidence may suffice to establish insolvency despite affidavit conflicts.
But where a key deponent’s credibility is attacked, RAS Medical requires that they be given an opportunity to respond by cross‑examination.
In the absence of cross‑examination, it was not appropriate to make findings on solvency; the petition was dismissed.

Re Green D confirms, and Cahill J endorses, that:

Where credibility challenges are material to a party’s burden on a winding‑up petition, the petition may fail if pursued exclusively on affidavit without cross‑examination.

3.2.5 Re Kasam Investments Ireland Ltd [2012] IEHC 553

In Re Kasam, Laffoy J dismissed a petition because the court could not determine, on contested affidavit evidence, the crucial question of when a loan was repayable. The court concluded that:

It was simply not possible to resolve the repayment term from the affidavits.
Therefore the petitioner had not established the debt for the purposes of the petition.

Although decided before RAS Medical, Re Kasam is consistent with its logic as now understood: if the petitioner needs the court to resolve contested terms in its favour and does not (or cannot) seek cross‑examination, the petition must fail.

3.2.6 English Authorities on Cross‑Examination in Winding‑Up

The Company relied on English decisions which treat cross‑examination on winding‑up petitions as almost never appropriate:

Re Janesh Ltd [1990] BCC 250;
Re a Company, ex p Electrical Engineering [1992] BCLC 248; and
Ross & Craig (a firm) v Williamson [2006] EWHC 880 (Ch).

The English courts emphasise that, because the only question is whether there is a bona fide dispute, the court:

is not required to make findings of fact as to the “true answer”, but only to see whether “there is something to be said on each side” (Electrical Engineering); and
should not attempt to resolve crucial factual disputes (e.g. “who said what to whom”); instead, such disputes belong in ordinary civil actions (Ross & Craig).

Cahill J acknowledges these authorities and their logic, which coheres with the Irish “bona fide dispute” test. However, she identifies a divergence in light of RAS Medical:

Irish law now requires a different approach where sworn evidence is attacked on credibility/reliability grounds.
In such cases, even though the court is not determining the ultimate merits of the debt, it cannot dismiss evidence as untruthful or unreliable without cross‑examination.

In effect, Irish law after RAS Medical, Re Bayview and Re Green D permits — and sometimes requires — limited cross‑examination in winding‑up petitions where a party’s case depends on disbelieving the opposing deponent on a material issue.

3.2.7 “Bona Fide” and “Credible” Defences in Summary Judgment

The judgment also engages with the use of “credible” and “bona fide” in the summary judgment context, citing:

Aer Rianta c.p.t. v Ryanair Ltd [2001] 4 IR 607;
First National Commercial Bank v Anglin [1996] 1 IR 75;
Bank of Ireland v Walsh [2009] IEHC 220; and
IBRC v McCaughey [2014] 1 IR 749.

From these cases, the Court extracts an important distinction:

In the summary judgment context, “credible defence” and “bona fide defence” are used to mean:
- a defence that is not hopeless, not self‑contradictory, and has a fair or reasonable probability of success;
- the focus is on whether the defence is arguable, not on the subjective honesty of the deponent.
It is not the function of the court on a summary judgment motion to weigh credibility in the sense of deciding who is telling the truth; if there is a genuinely arguable defence, the matter is sent to plenary hearing.

Cahill J cautions against confusing:

“Credible defence” in the summary judgment sense (i.e. an arguable case); with
“Credibility” in the RAS Medical sense (i.e. an assertion that a witness’s evidence is untruthful or unreliable and should be rejected).

In winding‑up petitions, “bona fide dispute on substantial grounds” functions like the “credible/bona fide defence” threshold in summary judgment — it is a filter test. It does not of itself involve pronouncing on the personal honesty of the deponent. That latter question only arises when a party goes further and says, in effect, “the opposing deponent is lying or his evidence cannot be trusted”.

3.3 The Court’s Legal Reasoning in Anvil

3.3.1 Identifying the Real Issue

Following detailed review of the affidavits and the parties’ lists of “topics” for cross‑examination, the Court distils the case to a single, central factual controversy:

What was the legal character of the €551,000 advanced by the petitioner — loan or equity? If a loan, was it agreed to be repayable on demand?

Other issues (e.g. the precise role of Flinbury, the specifics of the Pinemount redemption timing, alleged inconsistency in submissions about percentage shareholdings) were found to be either:

not genuinely in dispute;
immaterial to the petition’s outcome; or
relating to deponents whose evidence is peripheral to the petition (e.g. Mr Doyle) and more relevant to other proceedings.

3.3.2 Burdens of Proof and the Role of Credibility

The Court underscores that:

The petitioner bears the burden of establishing, prima facie:
- that the €551,000 was a debt owed by Anvil;
- that a statutory demand was served; and
- that it was not paid within 21 days.
The Company bears the subsequent burden of showing that there is a bona fide dispute on substantial grounds as to that debt (e.g. that the payment was equity, or a subordinated, non‑demand loan).

Here, the same factual controversy lies at the heart of both burdens: was the payment a loan or an equity investment, and on what terms? Both sides directly assert that the other’s sworn version of events is:

not merely mistaken but not truthful or not reliable; and
contradicted by specific documents (accounts, CRO registers, correspondence, plenary pleadings).

Thus, the petitioner’s ability to establish a prima facie debt — and the Company’s ability to establish a bona fide dispute — each rests to a significant extent on persuading the court to disbelieve the other’s sworn account of the underpinning arrangements.

3.3.3 Why RAS Medical Makes Cross‑Examination Necessary Here

Applying RAS Medical as explained in Re Bayview and Re Green D, Cahill J reasons that:

Both parties’ cases materially depend on:
- attacking the credibility/reliability of the opposing deponent’s sworn account; and
- arguing that the court should resolve the conflict by rejecting that evidence.
In such circumstances, the court cannot simply:
- choose to believe one deponent and disbelieve the other on paper alone; or
- treat documentary contradictions as sufficient to reject affidavit evidence,
without giving the affected witnesses an opportunity to explain themselves under cross‑examination.
If the petition proceeds entirely on affidavit, there is a real risk — as in Re Bayview and Re Green D — that:
- the court will be unable to reject one side’s evidence without cross‑examination; and therefore
- will be forced to conclude that the petitioner has not discharged his burden, leading to dismissal of the petition regardless of its underlying merits.

In short, because attacks on credibility are unavoidable and central, failing to order cross‑examination could itself produce an unfair or artificial outcome — the petition might fail solely because procedural constraints prevented the necessary evaluation of truthfulness.

3.3.4 Distinguishing Credibility from “Bona Fides”

The judgment is at pains to avoid conflating:

Credibility in the RAS Medical sense:
- relating to whether a witness’s evidence is truthful or reliable;
- engaged when one side explicitly or implicitly accuses the other of misrepresentation or fabrication on a material point.
Bona fide dispute on substantial grounds in the winding‑up context:
- a filtering test akin to an arguability threshold;
- concerned with whether the defence has some real substance and prospects, not with whether the deponent is personally honest.

This distinction matters because:

If “bona fide” were interpreted as a direct test of personal honesty, then every disputed petition would arguably require cross‑examination — which would undermine the summary nature of the jurisdiction.
By treating “bona fide dispute” as an objective assessment of the defence's substance, cross‑examination is reserved for those exceptional cases where the party’s case cannot fairly be decided without testing a witness’s personal veracity.

3.3.5 Exercising the Discretion: Why This Case is “Exceptional”

Cahill J identifies three factors justifying the exercise of the Order 40, rule 1 discretion in favour of cross‑examination:

Specific, documentary‑based credibility attacks
The credibility challenges are not vague or rhetorical; they relate to:
- specific paragraphs of the affidavits; and
- concrete documentary inconsistencies (company accounts, CRO filings, correspondence, and conflicting positions in plenary proceedings).
Both sides have clearly signalled their intention to argue that the other’s evidence is untruthful or unreliable on the core issue.
Risk of injustice if cross‑examination is refused
Without cross‑examination, there is a material risk that:
- the court hearing the petition will be constrained by RAS Medical, Re Bayview and Re Green D from rejecting either deponent’s evidence; and
- as a result, the petitioner will be found not to have discharged the necessary burden, even if, on a full exploration of the facts, the debt might be established.
Cross‑examination can be tightly confined
The Court considers that the necessary testing of credibility can be:
- limited to a small number of paragraphs in each side’s affidavits; and
- confined to the net questions:
  - was the €551,000 a loan or an equity investment? and
  - if a loan, was it repayable on demand?
This reduces the risk of the petition degenerating into a de facto plenary trial of all aspects of the business relationship.

3.3.6 Scope of the Cross‑Examination Ordered

The Court expressly limits cross‑examination to:

On behalf of the petitioner, cross‑examination of Mr Somerville on paragraphs:
- 11 of his first affidavit;
- 11, 18, 20, 21 of his second affidavit; and
- 8 of his third affidavit;
all of which deal with the character of the petitioner’s investment and the terms (if any) of repayment.
On behalf of the Company, cross‑examination of the petitioner on paragraphs:
- 11 of his first affidavit;
- 5, 6, 7, 14 of his second affidavit; and
- 3 of his third affidavit;
again relating directly to whether the €551,000 was a loan or equity and whether it was repayable on demand.

The Court stresses that:

this is not a licence for open‑ended questioning on all aspects of the parties’ relationship;
irrelevant collateral disputes (including those involving non‑core witnesses like Mr Doyle) should not be ventilated; and
the hearing of the petition remains confined to the statutory threshold questions under ss.569‑570.

4. Impact and Practical Significance

4.1 Procedural Consequences for Winding‑Up Practice

The judgment confirms and sharpens several procedural points of importance to practitioners:

Correct procedural route: Order 40, rule 1, not rule 36
Applications to cross‑examine deponents on a winding‑up petition must be brought under Order 40, rule 1. There is no automatic right to serve a notice to cross‑examine under rule 36 in petition proceedings.
Cross‑examination remains exceptional but is now a realistic possibility
While the default position remains that winding‑up petitions — especially those grounded in deemed insolvency — will be determined on affidavit without oral evidence, Anvil confirms that:
- cross‑examination may be ordered where the material issue is the credibility of a deponent on matters central to the existence and character of the alleged debt; and
- such cross‑examination can and should be tightly constrained to those material points.
Strategic implications for petitioners and companies
Petitioners who:
- challenge the opposing deponent’s veracity on a central issue; but
- fail to seek cross‑examination,
run the risk that, under RAS Medical and the cases following it, the court will be unable to reject the opposing evidence and will therefore find that the petitioner has not discharged the burden of establishing the debt.

Conversely, companies defending a petition should:
- be alert to whether their defence strategy depends on branding the petitioner’s evidence as untruthful or unreliable; and
- consider whether to seek cross‑examination in response, as the Company did here to maintain a “level playing field”.

4.2 Substantive Consequences for Corporate Disputes

The case also underscores broader lessons about informal shareholder/creditor arrangements:

The dangers of informality
As in Re Bayview, this dispute was exacerbated by:
- a “striking lack of formality” in documenting agreements between business associates;
- absence of written loan terms, investment agreements or contemporaneous minutes; and
- subsequent inconsistent characterisations of the same payment (loan vs equity, creditor vs investor).
Where such informality exists, the likelihood of irreconcilable affidavit conflicts is high, and the capacity of the winding‑up jurisdiction to resolve matters on affidavit alone is correspondingly low.
Accounts and registry filings as double‑edged evidence
The case illustrates how:
- company accounts describing funding as “loans to creditors” may powerfully support a debt claim; but
- directors can later attempt to recharacterise these entries as “convenient and in fact incorrect”, treating them as equity for petition purposes.
The weight a court can give to such recharacterisations will often turn on the director’s credibility, hence the practical importance of cross‑examination where the point is fundamental.
Parallel proceedings and inconsistent positions
The petitioner had also issued plenary proceedings seeking a declaration that he is the beneficial owner of 50% of Anvil’s shares, while in the petition he denies being a beneficial shareholder and insists on his status as creditor.

Such inconsistency is fertile ground for credibility attacks (on both sides), which in turn raise the likelihood that cross‑examination will be needed if the petition is to be fairly decided.

4.3 Doctrinal Clarification: Ireland versus England

The judgment marks a clear doctrinal stance:

Like England, Ireland recognises that the primary function of the winding‑up jurisdiction on a creditor’s petition is to exclude genuinely disputed debts from summary enforcement.
Unlike England, post‑RAS Medical Irish law now recognises that:
- where a party’s case materially depends on an attack on the truthfulness or reliability of a deponent’s affidavit evidence,
- cross‑examination may be necessary even at the petition stage, provided it is limited to material issues.

This reflects a greater emphasis on constitutional fair procedures and due process in the treatment of sworn evidence, even in summary and specialist jurisdictions.

5. Complex Concepts Simplified

5.1 Winding‑Up on “Deemed Inability to Pay Debts”

A company can be wound up not only where it is factually insolvent, but where it is deemed unable to pay its debts if:

It owes at least €10,000 to a creditor (or €20,000 to two or more creditors).
The creditor serves a formal written demand at the registered office requiring payment of that debt.
The company does not pay, secure, or reasonably compound for the debt within 21 days.

This is a statutory shortcut. The law presumes inability to pay once the demand is unmet, unless the company can show that the alleged debt is genuinely disputed.

5.2 “Bona Fide Dispute on Substantial Grounds”

This phrase is a long‑standing safeguard against abuse of the winding‑up process. It means:

The company genuinely disputes the debt — not as a sham or tactical afterthought; and
its grounds for disputing the debt have some real substance and a realistic prospect of succeeding in ordinary proceedings.

It does not require the company to prove that the debt is not owed on the balance of probabilities, nor does it require the court to decide who is telling the truth. It is a screening test: if the dispute is real and substantial, the creditor must sue for the debt in the ordinary way rather than invoke the winding‑up jurisdiction.

5.3 “Trial on Affidavit” versus Petition Evidence

A trial on affidavit arises where the court directs that a case (usually begun by plenary, summary or special summons) will be decided on affidavit evidence instead of oral testimony, often for reasons of efficiency.

In such trials:

Order 40, rule 36 allows any party, without leave, to serve a notice requiring production of a deponent for cross‑examination.

By contrast, a winding‑up petition is a specialist procedural vehicle with its own rules (Order 74 RSC). Although evidence is usually given by affidavit, it is not treated as a “trial on affidavit” for the purpose of Order 40, rule 36. Cross‑examination is only possible under Order 40, rule 1 and requires the court’s leave.

5.4 “Credible” Defence in Summary Judgment versus “Credibility” of a Witness

In summary judgment cases, courts ask whether a defendant has a “credible” or “bona fide” defence. Here:

“Credible” is used in the sense of “not hopeless, not self‑contradictory, and having a real prospect of success”.
The court does not decide at that point whether the defendant is personally honest or whether one deponent is more believable than the other.

In RAS Medical, “credibility” is used differently: it refers to whether a witness’s sworn evidence is truthful or reliable. A party who wants the court to reject a witness’s evidence on that basis must, in principle, give the witness a chance to defend themselves in cross‑examination.

Anvil clarifies that in the winding‑up context:

“Bona fide dispute” = a dispute that is arguably correct and not frivolous.
“Credibility” (for cross‑examination) = attacks on the truthfulness of a deponent’s affidavit on a material point.

6. Conclusion

Anvil Real Estate Ltd v Companies Act 2014 [2025] IEHC 630 is a significant addition to Irish jurisprudence at the junction of company law and civil procedure. Its key contributions can be summarised as follows:

Source of jurisdiction
The judgment confirms that the High Court’s power to order cross‑examination on a winding‑up petition comes from Order 40, rule 1 RSC, not Order 40, rule 36, and that leave is required.
Exceptional but real availability of cross‑examination in petitions
While maintaining that cross‑examination on winding‑up petitions — particularly on deemed insolvency — should be rare and carefully controlled, the Court recognises that it may be necessary where the material issue is the credibility/reliability of a deponent on the existence and character of the alleged debt.
Reconciliation of “bona fide dispute” with RAS Medical
The decision carefully distinguishes:
- the objective filter of a “bona fide dispute on substantial grounds” (arguability), from
- the subjective question of whether a deponent’s evidence is truthful or reliable (credibility).
Cross‑examination is not required simply because there is a bona fide dispute; it is required where a party’s case depends on asserting that the opposing deponent is untruthful or unreliable on material points.
Practical guidance for practitioners
The judgment warns petitioners and respondent companies that:
- where they intend to mount serious credibility attacks on the opposing deponent, they should expect the court either:
  - to permit limited cross‑examination; or
  - to refuse to rely on those attacks and potentially dismiss the petition (or defence) for failure to discharge the evidential burden.
- applications for cross‑examination will be scrutinised and confined to specific paragraphs and issues that are truly material.
Alignment with constitutional fair procedures
By importing RAS Medical’s fairness requirements into the winding‑up context, the judgment reflects a broader movement in Irish law towards:
- greater respect for procedural fairness in affidavit‑based determinations; and
- willingness to allow targeted oral evidence where necessary to avoid outcomes driven solely by procedural constraints rather than substantive justice.

For future petitions, Anvil stands as authority that exceptional, carefully delimited cross‑examination may be ordered where the parties’ mutual accusations of dishonesty or unreliability lie at the heart of whether there is a debt at all. At the same time, the judgment preserves the essential nature of the winding‑up jurisdiction as a summary, threshold mechanism, not a substitute for full‑blown litigation over complex commercial disputes.

Exceptional Cross‑Examination in Winding‑Up Petitions: Anvil Real Estate Ltd v Companies Act 2014 [2025] IEHC 630