Sunday 19 January 2014

Companies Act Limerick - 3



The grounding affidavit will also generally exhibit the following;

1.Copy Certificate of Incorporation
2.Copy Memorandum and Articles of Association
3.Print-off from CRO website showing the company as being struck-off
4.Copy Up-to-date filed Annual Returns
5.Copy Letter of No Objection from the Companies Registration Office

Once you have received back your filed copies you must serve a certified copy of the Petition, Notice of Motion and the Grounding Affidavit together with the exhibits thereto on the Revenue Commissioners, the Revenue Solicitors, the Minister for Finance, the Chief State Solicitors Office and the Companies Registration Office.

Assuming the documents are in order the Revenue Solicitors will communicate with the Revenue Commissioners who will then ordinarily issue a ‘Letter of No Objection’.  Practitioners should note this can take a number of weeks to happen in practice.  The Office of the Minister for Finance, if satisfied with the paperwork, will instruct the Chief State Solicitor’s Office to issue a ‘Letter of No Objection’ on its behalf, and again this can take a number of weeks.  Practitioners should note the Revenue Solicitors currently charge €530 to cover their legal expenses and the Chief State Solicitor’s Office charge €350 to cover their expenses in providing the ‘Letter of No Objection’.

A second affidavit exhibiting these two additional ‘Letters of No Objection’ must be sworn, stamped and filed prior to the hearing of the application and this is why it is prudent to allow at least a month if not slightly longer, so that these two letters can be obtained.  Otherwise you could be faced with seeking an adjournment while you wait for this paperwork to arrive which will obviously add to costs.

In the event that the statutory proofs are in order, the Judge will exercise his or her discretion as to whether the order should be granted.  On hearing the application, the Court may, if satisfied that it is just restore the Company to the register.

Assuming you are successful in your application you must take up the Order without delay and an office copy must be served on the Companies Registration Office within three months of the making of the order together with the €15 filing fee. If the Order is not delivered within this timeframe a fresh restoration application will be necessary.  Practitioners should be cognisant of this requirement.  All outstanding returns if not already filed should be submitted to the Registrar within one month of the making of the Order.  An office copy of the Order should also be sent to the Revenue Solicitors and the Chief State Solicitors Office so that they can close their respective files.  This is a procedural and not a statutory requirement.

The effect of restoration to the Companies Register is that the company shall be deemed to have continued in existence as if its name had not been struck off.

Practitioners should be cognisant, when advising a company, of the high costs and outlays that will be incurred in making a Company Restoration application in the High Court as outlined above.

The company will likely have good reason to want to be restored; for example the company may own property which the directors and shareholders may wish to sell and therefore a Company Restoration application makes financial sense.

An example of one such good reason can be seen in Re Eden Quay Investments Limited where the directors of a company struck-off some 18 years previously successfully applied to have the company restored.  The company held some 514,256 shares in Hibernian Transport Companies Ltd which were not worthless as had originally been thought and the Supreme Court held that the shareholders were entitled to share in a surplus of some IR£2.5m arising from the liquidation of Hibernian Transport Companies Ltd.

'Look It Up'

Legislation

Section 311 of the Companies Act 1963 as amended
Section 311(8) of the Companies Act 1963
Section 12B(3), Companies (Amendment) Act 1982
Section 882 of the Taxes Consolidation Act 1997

Case-Law

Re Eden Quay Investments Limited, The Irish Times, 12 April 1994
Hibernian Transport Companies Ltd (1994) 1 ILRM 48
New Ad Advertising Company Limited [2006] IEHC 19


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