COMPANIES (AMENDMENT) ACT, 1982

AN ACT TO AMEND AND EXTEND THE COMPANIES ACT, 1963, AND TO PROVIDE FOR OTHER CONNECTED MATTERS. [15th June, 1982]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1 Interpretation.

1.—In this Act “the Principal Act” means the Companies Act, 1963.

2 Articles prescribing regulations for companies.

2.—The Principal Act is hereby amended by the substitution for section 11 of the following—

“11.—There may, in the case of a company limited by shares and in the case of a company limited by guarantee and not having a share capital, and there shall, in the case of a company limited by guarantee and having share capital or unlimited, be registered with the memorandum articles of association signed by the subscribers to the memorandum and prescribing regulations for the company.”.

3 Particulars to be delivered with memorandum.

3.—(1) There shall be delivered to the registrar together with every memorandum of a company delivered to him pursuant to section 17 of the Principal Act a statement in the prescribed form containing the name and the particulars specified in subsection (2) of this section in relation to—

• (a) the persons who are to be the first directors of the company,

• (b) the person who is, or the persons who are, to be the first secretary or joint secretaries of the company, and

• (c) the situation of the company's registered office.

• (2) The particulars referred to in subsection (1) of this section are—

• (a) in relation to a person named as director of the company concerned all particulars which are, in relation to a director, required pursuant to section 195 (2) of the Principal Act to be contained in the register kept under that section,

• (b) in relation to a person named as secretary, or as one of the joint secretaries, all particulars which are, in relation to the secretary or to each joint secretary, required pursuant to section 195 (4) of the Principal Act to be contained in the register kept under that section, and

• (c) in relation to the registered office of the company, the particulars which are required to be given to the registrar pursuant to section 113 of the Principal Act.

• (3) The statement required to be delivered pursuant to this section shall be signed by or on behalf of the subscribers and shall be accompanied by a consent signed by each of the persons named in it as a director, secretary or joint secretary to act in that capacity.

• (4) Where the memorandum is delivered to the registrar pursuant to section 17 of the Principal Act by a person as agent for the subscribers to the memorandum the statement required to be delivered to the registrar pursuant to this section shall so specify and shall specify the name and address of the person by whom the memorandum is delivered.

• (5) The persons who are specified in the statement required to be delivered to the registrar pursuant to this section as the directors, secretary or joint secretaries of the company to which the statement refers shall, on the incorporation of the company, be deemed to have been appointed as the first directors, secretary or joint secretaries, as the case may be, of the company, and any indication in any articles delivered to the registrar with the memorandum specifying a person as a director or secretary of a company shall be void unless such person is specified as a director or as secretary in the said statement.

• (6) The registrar shall not register any memorandum delivered to him for registration pursuant to section 17 of the Principal Act or any articles delivered to him with the memorandum unless a statement complying with the requirements of this section is delivered to him with the memorandum.

4 Registered office of company.

4.—(1) The Principal Act is hereby amended by the substitution for section 113 of the following section—

“113.—(1) A company shall, at all times, have a registered office in the State to which all communications and notices may be addressed.

• (2) Particulars of the situation of the company's registered office shall be specified in the statement delivered pursuant to section 3 of the Companies (Amendment) Act, 1982, prior to the incorporation of the company.

• (3) Notice of any change in the situation of the registered office of a company shall be given within fourteen days after the date of the change to the registrar who shall record the same.

The inclusion in the annual return of a company of a statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by this subsection.

• (4) Where the memorandum of a company has been delivered to the registrar for registration under section 17 of the Principal Act prior to the commencement of the Companies (Amendment) Act, 1982, that company shall—

  • (a) as from the date on which it begins to carry on business, or as from the fourteenth day after the date of its incorporation, whichever is the earlier, have a registered office in the State to which all communications and notices may be addressed, and

  • (b) give notice of the situation of the registered office, and of any change therein within 14 days after the date of the incorporation of the company, or of the change as the case may be, to the registrar who shall record the same.

  The inclusion in the annual return of a company of a statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by this subsection.

• (5) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £500.

• (6) Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.”.

5 Amendment of section 143 of Principal Act.

5.—(1) Section 143 (4) of the Principal Act is hereby amended by the insertion after paragraph (e) of the following paragraphs—

• “(f) resolutions attaching rights or restrictions to any share;

• (g) resolutions varying any such rights or restrictions;

• (h) resolutions classifying any unclassified share;

• (i) resolutions converting shares of one class into shares of another class.”.

• (2) Every company shall, within three months after the commencement of this section, forward to the registrar of companies a return containing particulars not previously forwarded to him of any right or restriction attaching to shares in the share capital of the company existing upon such commencement and the particulars shall be recorded by him.

6 Qualification for appointments as auditor.

6.—The Principal Act is hereby amended by the substitution for section 162 of the following section—

“162.—(1) A person shall not be qualified for appointment as auditor of a company or as a public auditor unless—

• (a) he is a member of a body of accountants for the time being recognised for the purposes of this section by the Minister; or

• (b) he is for the time being authorised by the Minister to be so appointed either—

  • (i) as having obtained similar qualifications otherwise than from such a body, or

  • (ii) as having obtained adequate knowledge and experience, prior to the operative date in the case of an appointment as auditor of a company or prior to the 1st day of September, 1967, in the case of an appointment as a public auditor, in the course of his employment by, or under the supervision of, a member of a body of accountants recognised for the purposes of paragraph (a), or

  • (iii) as having, prior to the operative date in the case of an appointment as auditor of a company or prior to the 1st day of September, 1967, in the case of an appointment as a public auditor practised in the State as an accountant.

• (2)

  • (a) Every application pursuant to subsection (1) (b) (ii) or (1) (b) (iii) for an authorisation to be appointed as an auditor of a company or as a public auditor shall be made to the Minister not later than three months after the commencement of section 6 of the Companies (Amendment) Act, 1982.

  • (b) The Minister shall not authorise the appointment of any person as an auditor of a company or as a public auditor pursuant to an application made under subsection (1) (b) (ii) or (1) (b) (iii) after the expiration of six months from the commencement of section 6 of the Companies (Amendment) Act, 1982.

• (3) Notwithstanding the provisions of subsections (1) and (2) of this section, any person who was appointed by the Minister to be a public auditor on or before the 1st day of September, 1967, shall be deemed to be authorised by the Minister to be appointed as a public auditor by virtue of this section.

• (4) If an auditor is convicted of a criminal offence arising out of or connected with the performance of his duties or his conduct as an auditor, he shall not be qualified for appointment as auditor of a company or as a public auditor without the permission of the court.

• (5) None of the following persons shall be qualified for appointment as auditor of a company—

  • (a) an officer or servant of the company;

  • (b) except where the company is a private company, a person who is a partner of or in the employment of an officer or servant of the company;

  • (c) a person who is not qualified by virtue of this subsection for appointment as auditor of any other body corporate which is that company's subsidiary or holding company or a subsidiary of that company's holding company, or would be so disqualified if the body corporate were a company;

  • (d) a person who is not qualified pursuant to subsection (6) of this section for appointment as a public auditor of an Industrial and Provident Society which is a subsidiary or holding society of that company or a subsidiary of that company's holding society;

  • (e) a body corporate.

  References in this subsection to an officer or servant shall be construed as not including references to an auditor.

• (6) None of the following persons shall be qualified for appointment as a public auditor of an Industrial and Provident Society—

  • (a) an officer or servant of the Industrial and Provident Society;

  • (b) a person who is a partner of or in the employment of an officer or servant of the Industrial and Provident Society;

  • (c) a person who is not qualified by virtue of this subsection for appointment as a public auditor of any other Industrial and Provident Society which is the subsidiary society or holding society of the Industrial and Provident Society or a subsidiary of that society's holding society;

  • (d) a person who is not qualified pursuant to subsection (5) of this section to be the auditor of a company which is a subsidiary or holding company of that society or a subsidiary of that society's holding company;

  • (e) a body corporate.

  References in this subsection to an officer or servant shall be construed as not including references to an auditor.

• (7) None of the following persons shall be qualified for appointment as a public auditor of a Friendly Society—

  • (a) an officer or servant of the Friendly Society;

  • (b) a person who is a partner of or in the employment of an officer or servant of the Friendly Society;

  • (c) a body corporate.

• (8) Any person who acts as auditor of a company or as a public auditor when disqualified under this section shall be liable to a fine not exceeding £500.

• (9) This section shall not apply to the Comptroller and Auditor General.

• (10) In this section ‘public auditor’ means a public auditor for the purposes of the Industrial and Provident Societies Acts, 1893 to 1978, and the Friendly Societies Acts, 1896 to 1977.”.

7 Amendment of section 168 of Principal Act.

7.—Section 168 of the Principal Act is hereby amended by the substitution for subsection (3) of the following subsection—

• “(3) If any officer or agent of the company or other body corporate refuses to produce to the inspectors any book or document which it is his duty under this section so to produce or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the officer or agent shall be guilty of an offence and shall be liable—

  • (a) on summary conviction, to a fine not exceeding £500, or to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment, or

  • (b) on conviction on indictment, to a fine not exceeding £5,000, or to imprisonment for a term not exceeding three years, or to both such fine and such imprisonment,

  and, if the refusal in respect of which he was convicted is continued after the conviction, he shall be guilty of a further offence and shall be liable on conviction on indictment to a further fine not exceeding £250 for each day on which the refusal was so continued.”.

8 Register of directors and secretaries.

8.—(1) Section 195 of the Principal Act is hereby amended by the substitution for subsections (6), (7) and (8) of the following subsections—

• “(6) The company shall, within the period of fourteen days from the happening of—

  • (a) any change among its directors or in its secretary, or

  • (b) any change in any of the particulars contained in the register,

  send to the registrar of companies a notification in the prescribed form of the change and of the date on which it occurred.

• (7) A notification sent to the registrar of companies pursuant to subsection (6) of this section of the appointment of a person as a director, secretary or joint secretary of a company shall be accompanied by a consent signed by that person to act as director, secretary, or joint secretary, as the case may be.

• (8) Where the memorandum of a company has been delivered to the registrar for registration pursuant to section 17 prior to the commencement of section 8 of the Companies (Amendment) Act, 1982, the company shall send to the registrar of companies a return containing the particulars of the first directors and secretary of such company specified in the register required to be kept pursuant to section 195, and a notification in the prescribed form of any change among its directors or in its secretary or in any of the particulars contained in the register specifying the date of the change and the said returns shall be sent to the registrar within fourteen days of the appointment of the first directors or secretary or change, as the case may be.”.

• (2) Subsection (10) of section 195 of the Principal Act is hereby amended by the substitution of—

• (a) for “or (6)” of “(6), (7) or (8)”, and

• (b) for “£100” of “£500”.

9 Amendment of section 256 of Principal Act.

9.—Section 256 of the Principal Act is hereby amended by the substitution for subsection (2) of the following—

• “(2) A declaration made as aforesaid shall have no effect for the purposes of this Act unless—

  • (a) it is made within the 28 days immediately preceding the date of the passing of the resolution for winding up the company and delivered to the registrar of companies not later than the date of the delivery to the registrar, in accordance with the provisions of section 143, of a copy of the resolution for winding up the company; and

  • (b) it embodies a statement of the company's assets and liabilities as at a date not more than three months before the making of the declaration.”.

10 Preferential payments in a winding up.

10.—Section 285 of the Principal Act is hereby amended by—

• (a) the insertion in subsection (2) after paragraph (g) of the following paragraphs—

• “(h) all sums due to any employee pursuant to any scheme or arrangement for the provision of payments to the employee while he is absent from employment due to ill health;

• (i) any payments due by the company pursuant to any scheme or arrangement for the provision of superannuation benefits to or in respect of employees of the company whether such payments are due in respect of the company's contribution to that scheme or under that arrangement or in respect of such contributions payable by the employees to the company under any such scheme or arrangement which have been deducted from the wages or salaries of employees.”;

• (b) the substitution in subsection (3) for “£300” of “£2,500”;

• (c) the insertion in subsection (6) after paragraph (b) of the following paragraph—

“or

• (c) to any such clerk, servant, workman or labourer while he is absent from employment due to ill health or pursuant to any scheme or arrangement for the provision of superannuation benefit to or in respect of him;”; and

• (d) the substitution in subsection (11) for “, absence from work through sickness or other” of “or absence from work through”;

• (e) the insertion after subsection (12) of the following subsection—

• “(13) The Minister may by order made under this subsection vary the sum of money specified in subsection (3) of this section.”.

11 Power of registrar to strike defunct company off register.

11.—Section 311 of the Principal Act is hereby amended by the substitution for subsections (1), (2), (3) and (4) of the following—

• “(1) Where the registrar of companies has reasonable cause to believe that a company is not carrying on business, he may send to the company by post a registered letter inquiring whether the company is carrying on business and stating that, if an answer is not received within one month from the date of that letter, a notice will be published in Iris Oifigiúil with a view to striking the name of the company off the register.

• (2) If the registrar either receives an answer to the effect that the company is not carrying on business or does not within one month after sending the letter receive any answer, he may publish in Iris Oifigiúil and send to the company by registered post a notice that at the expiration of one month from the date of that notice, the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register, and the company will be dissolved.

• (3) If in any case where a company is being wound up the registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company are fully wound up, and the returns required to be made by the liquidator have not been made for a period of 6 consecutive months, the registrar shall publish in Iris Oifigiúil and send to the company or the liquidator, if any, a like notice as is provided in subsection (2).”.

12 Power of registrar to strike off register companies who fail to make returns.

12.—(1) Without prejudice to the generality of section 311 of the Principal Act where a company does not, for three consecutive years, make the annual returns required by sections 125 or 126 of the Principal Act, the registrar of companies may send to the company by post a registered letter inquiring whether the company is carrying on business and stating that, if an answer is not received within one month from the date of that letter, a notice will be published in Iris Oifigiúil with a view to striking the name of the company off the register.

• (2) If the registrar either receives an answer to the effect that the company is not carrying on business or does not within one month after sending the letter receive any answer or all annual returns which are outstanding, he may publish in Iris Oifigiúil and send to the company by registered post a notice that at the expiration of one month from the date of that notice, the name of the company mentioned therein will, unless cause is shown to the contrary or all outstanding annual returns are made, be struck off the register, and the company will be dissolved.

• (3) Subject to subsections (4) and (5) of this section, at the expiration of the time mentioned in the notice, the registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in Iris Oifigiúil and on the publication in Iris Oifigiúil of this notice, the company shall be dissolved.

• (4) The liability, if any, of every director, officer and member of the company shall continue and may be enforced as if the company had not been dissolved.

• (5) Nothing in subsection (3) or (4) of this section shall affect the power of the court to wind up a company the name of which has been struck off the register.

• (6) If a company or any member or creditor thereof feels aggrieved by the company having been struck off the register, the court, on an application made (on notice to the registrar) by the company or member or creditor before the expiration of 20 years from the publication in Iris Oifigiúil of the notice aforesaid, may, if satisfied that the company was at the time of the striking off carrying on business or otherwise that it is just that the company be restored to the register, order that the name of the company be restored to the register, and upon an office copy of the order being delivered to the registrar for registration, the company shall be deemed to have continued in existence as if its name had not been struck off; and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off.

• (7) A letter or notice to be sent under this section to a company may be addressed to the company at its registered office, or, if no office has been registered, to the care of some officer of the company, or, if there is no officer of the company whose name and address are known to the registrar of companies, may be sent to each of the persons who subscribed the memorandum, addressed to him at the address mentioned in the memorandum.

13 Non-application of section 376 of Principal Act to certain partnerships.

13.—(1) The provisions of section 376 of the Principal Act shall not apply to the formation of a partnership—

• (a) for the purpose of carrying on practice as accountants in a case where each partner is a person who is qualified under section 162 (1) (a) or (b) of the Principal Act, as amended by this Act, or

• (b) for the purpose of carrying on practice as solicitors in a case where each partner is a solicitor.

• (2) The Minister may by an order made under this section declare that the provisions of section 376 of the Principal Act shall not apply to the formation of a partnership of a description, and which is formed for a purpose, specified in the order.

• (3) Every order made under subsection (2) of this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

• (4) The Minister may revoke or amend an order made under this section, including this subsection.

• (5) The provisions of section 4(2) of the Limited Partnerships Act, 1907 shall not apply to a partnership specified in subsection (1) of this section nor to a partnership specified in an order made pursuant to subsection (2) of this section.

14 Adoption and application of Table C.

14.—The Principal Act is hereby amended by the insertion after section 13 of the following section—

“13A.—(1) In the case of a company limited by guarantee and not having a share capital articles of association may adopt all or any of the regulations contained in Table C or all or any of the regulations contained in the version in the Irish language of Table C set out in the First Schedule to the Principal Act.

• (2) In the case of a company limited by guarantee and not having a share capital and registered after the commencement of the Companies (Amendment) Act, 1982, if articles are not registered or, if articles are registered, in so far as the articles do not exclude or modify the regulations contained in Table C, those regulations shall, so far as applicable, be the regulations of the company in the same manner and to the same extent as if they were contained in duly registered articles.

• (3) If the memorandum of the company is in the Irish language, the references in subsection (2) to Table C shall be construed as references to the regulations contained in the version in the Irish language of Table C set out in the First Schedule to the Principal Act.”.

15 Increase of penalties.

15.—A person convicted of an offence for which a penalty is provided in any section of the Principal Act specified in column (2) of the First Schedule at any reference number shall, in lieu of the penalty provided in any such section and specified in column (3) of that Schedule, be liable to the penalty specified in column (4) of that Schedule at that reference number, and that section shall be construed and have effect accordingly.

16 Prosecution of certain offences.

16.—Proceedings in relation to offences under sections 227, 234, 249, 252, 262, 263, 272, 273, 278, 280, 319, 320 and 321 of the Principal Act may be brought and prosecuted by the registrar of companies.

17 Amendment of section 16 of Principal Act.

17.—Section 16 of the Principal Act is hereby amended by the deletion in paragraph (b) of “and articles”.

18 Amendment of section 19 of Principal Act.

18.—Section 19 (2) of the Principal Act is hereby amended by the substitution for “a person named in the articles as a director or secretary of the company” of “a person named as director or secretary of the company in the statement delivered pursuant to section 3 of the Companies (Amendment) Act, 1982”.

19 Amendment of section 58 of Principal Act.

19.—Section 58 of the Principal Act is hereby amended by the deletion in subsection (1) (a) of “and occupations”.

20 Amendment of section 116 of Principal Act.

20.—Section 116 of the Principal Act is hereby amended by the deletion in subsection (1) (a) of “and occupations”.

21 Amendment of First Schedule to Principal Act.

21.—The First Schedule to the Principal Act is hereby amended by—

• (a) the insertion in Regulation 113 in Part I of Table A before “The secretary” of “Subject to section 3 of the Companies (Amendment) Act, 1982,”,

• (b) the insertion in Rialachán 113 in Cuid I of Tábla A after “a cheapadh” of “, faoi réir alt 3 d'Acht na gCuideachtaí (Leasú), 1982,”, and

• (c) the insertion in Article 59 of Table C before “The secretary” of “Subject to section 3 of the Companies (Amendment) Act, 1982,”.

22 Amendment of Fifth Schedule to Principal Act.

22.—The Fifth Schedule to the Principal Act is hereby amended—

• (a) by the deletion in paragraph 5 (a) of Part I of that Schedule of “and occupations”; and

• (b) by the deletion in the second column in paragraph 5 of Part II of that Schedule of “and occupations”.

23 Repeal.

23.—Sections 29 and 30 of the Industrial Research and Standards Act, 1961, are hereby repealed.

24 Short title, collective citation, construction and commencement.

24.—(1) This Act may be cited as the Companies (Amendment) Act, 1982.

• (2) This Act and the Companies Acts, 1963 to 1977, shall be construed together as one Act and may be cited together as the Companies Acts, 1963 to 1982.

• (3) This Act shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister, either generally or with reference to a particular purpose or provision, and different days may be so fixed for different purposes and different provisions of this Act.

FIRST SCHEDULE Increase of Penalties