CREDIT UNION ACT, 1997

• (i) the approval of the scheme by the F365[Bank].

• (3) The reference of a complaint under a scheme established under this section shall not affect the rights of a member to have such a dispute as is referred to in subsection (1) of section 125 determined as provided for by the rules of the credit union, but any such dispute that relates to a matter covered by such a scheme may, if both the complainant and the credit union agree, instead of being so determined be determined under such a scheme, such determination being binding on both parties.

PART IX Amalgamations and Transfers of Engagements

128. Amalgamation of credit unions.

128.—(1) Subject to compliance with section 130, any two or more credit unions may amalgamate by forming a credit union as their successor.

• (2) In order to form a credit union as their successor the amalgamating credit unions shall—

• (a) agree on the rules for the regulation of their successor which comply with the requirements of the First Schedule;

• (b) each approve the terms of the amalgamation by a special resolution, which also approves the rules of their successor; and

• (c) jointly make an application under section 131 to the F367[Bank] for the confirmation of the amalgamation and send to the F367[Bank] three copies of the rules of their successor, each copy signed by the secretary of each of the credit unions.

• (3) If the F367[Bank]—

• (a) confirms the amalgamation under section 131, and

• (b) is satisfied as respects the matters as to which F367[it] must be satisfied before F367[it] registers the rules of a credit union,

the F367[Bank] shall register the rules of the successor credit union and issue to it a certificate of confirmation of F367[its] approval of the amalgamation and specify a date (“the specified date”) as from which the registration takes effect.

• (4) On the specified date, all the property, rights and liabilities of each of the credit unions whose amalgamation was confirmed by the F367[Bank] shall by virtue of this subsection stand transferred to and vested in the credit union so registered as their successor.

• (5) On the specified date, each of the credit unions to which the successor succeeds shall be dissolved by virtue of this subsection; but the transfer effected by subsection (4) shall be deemed to have been effected immediately before the dissolution.

129. Transfer of engagements between credit unions.

129.—(1) Subject to compliance with section 130, a credit union may transfer its engagements to another credit union which, in accordance with this section, undertakes to fulfil the engagements.

• (2) A credit union, in order—

• (a) to transfer its engagements, or

• (b) to undertake to fulfil the engagements of another credit union,

shall resolve to do so by a special resolution or, if the F368[Bank] consents in either case in circumstances where F368[it] considers it expedient to do so, by a resolution of the board of directors.

• (3) The transfer shall be recorded in an instrument of transfer of engagements.

• (4) A transfer of engagements between credit unions shall be of no effect unless—

• (a) the transfer is confirmed by the F368[Bank] under section 131; and

• (b) a certificate of confirmation of the transfer is issued in respect of the transfer under subsection (5)(b).

• (5) Where the F368[Bank] confirms a transfer of engagements between credit unions, F368[it] shall—

• (a) register a copy of the instrument of transfer of engagements; and

• (b) issue to the credit union taking the transfer a certificate of confirmation of the transfer;

and, on such date as is specified in the certificate, all the property, rights and liabilities of the credit union transferring its engagements shall, by virtue of this subsection, stand transferred to and vested in the credit union taking the transfer.

• (6) Where its engagements have been transferred, a credit union shall, by virtue of this subsection, be dissolved on the date specified in the certificate issued under subsection (5)(b); but the transfer effected by subsection (5) shall be deemed to have been effected immediately before the dissolution.

F369[ (7) (a) Where the engagements of a credit union (in this subsection referred to as the "transferor credit union") are transferred to another credit union (in this subsection referred to as the "transferee credit union"), the common bond of the transferee credit union is taken to include the common bond of the transferor credit union and the rules of the transferee credit union are amended accordingly, on and from the date on which the transfer takes effect in accordance with this section.

• (b) Section 14 shall not apply to the amendment of the rules of the transferee credit union effected by paragraph (a).]

130. Statement for members relating to proposed amalgamation or transfer of engagements.

130.— F371[(1) A credit union which proposes—

• (a) to amalgamate with one or more other credit unions,

• (b) to transfer its engagements to another credit union, or

• (c) to undertake to fulfil the engagements of another credit union,

shall, subject to subsection (2), cause to be sent to every member entitled to notice of a general meeting of the credit union and to the auditor of the credit union a statement, in such form as the Bank may specify in writing, showing the matters specified in subsection (3), together with a copy of the annual accounts for each credit union concerned for the most recent financial year.]

• (2) If, in the case of a credit union proposing to transfer its engagements or to fulfil the engagements of another credit union, the F372[Bank] has consented under section 129 to the credit union proceeding by a resolution of its board of directors, subsection (1) shall not apply but, within the seven days following the meeting of the board at which that resolution is passed, the secretary of the credit union shall send to every member and to the auditor of the credit union—

F373[ (a) a notice of the resolution passed by the board of directors,

• (b) a statement, in such form as the Bank may prescribe, showing the matters specified in subsection (3), and

• (c) a copy of the annual accounts for each credit union concerned for the most recent financial year.]

• (3) The matters referred to in subsection (1) are—

• (a) the financial position of each credit union concerned (as appearing from the most recent unaudited monthly statements);

• (b) details of any payments proposed to be made to members of each credit union concerned in consideration of the proposed amalgamation or transfer;

• (c) any changes to be made, in connection with the amalgamation or transfer, in the terms governing outstanding loans;

• (d) the details of the arrangements proposed in relation to employees of each credit union; and

• (e) any other matter which the F372[Bank] may require in the case of a particular amalgamation or transfer.

• (4) No statement shall be sent to the members of a credit union under F374[subsection (1) or (2)] unless its contents have been approved by the F372[Bank] but, subject to that, such a statement shall be so sent that every member referred to in that subsection receives it not later than the date on which F372[it] receives notice of any resolution which—

• (a) is in favour of the proposal concerned; and

• (b) is to be moved at a general meeting of the credit union.

131. Confirmation of amalgamation or transfer.

131.—(1) An application for confirmation by the F375[Bank] of an amalgamation of credit unions or a transfer of engagements shall be made in such manner as the F375[Bank] may specify.

• (2) A credit union which makes, or joins in making, an application for confirmation of an amalgamation or a transfer shall, within seven days after the date of the application, cause to be published, in at least two daily newspapers published in the State and circulating in the areas in which the registered offices of the credit unions concerned in the proposal are situated, a notice giving particulars of the application and indicating that representations relating to it (whether for or against) may be made in writing to the F375[Bank] within such period (being not less than 21 days after the date of publication of the notice) as may be specified in the notice.

• (3) A notice under subsection (2) shall be in such form as the F375[Bank] may specify and shall indicate that a copy of the statement prepared under section 130 may be obtained on demand at the registered office of the credit union during the ordinary office hours of the credit union.

• (4) Representations relating to an application under subsection (1) may be made to the F375[Bank] within the period specified in the relevant notice published under subsection (2).

• (5) The F375[Bank] shall allow the credit union or credit unions seeking confirmation of an amalgamation or transfer an opportunity to comment on any representations made before the expiry of such period as the F375[Bank] may specify in a notice to the credit union or credit unions.

• (6) The F375[Bank], having considered any application, representation and comment under this section, shall either—

• (a) confirm the amalgamation or transfer, subject to such conditions (if any) as F375[it] considers appropriate; or

• (b) subject to subsection (7), refuse to confirm the amalgamation or transfer if F375[it] is satisfied that—

• (i) confirmation would be contrary to the public interest or the F375[Bank]'s functions as respects credit unions; or

• (ii) in the case of an amalgamation or in the case of a transfer which was the subject of a special resolution, some information material to the members' decision about the amalgamation or transfer was not made available to all the members eligible to vote; or

• (iii) some relevant requirement of this Act (including, in particular, section 6) or the rules of any of the credit unions participating in the amalgamation or transfer was not fulfilled or not fulfilled as regards that credit union.

• (7) The F375[Bank] shall not be precluded from confirming an amalgamation or transfer by virtue only of the non-fulfilment of some relevant requirement of this Act or the rules of a credit union if it appears to the F375[Bank] that it could not have been material to the members' decision about the amalgamation or transfer and the F375[Bank] is satisfied that the failure may be disregarded for the purposes of this section.

• (8) A failure to comply with a requirement of this Part or any rules of a credit union shall not invalidate an amalgamation or transfer, but a credit union which and any person who fails to comply with a requirement of this Part shall be guilty of an offence.

132. Distribution to members.

132.—(1) Where the terms of an amalgamation of, or transfer of engagements between, credit unions include provision for the distribution among any of the members of the participating credit unions of part of the funds of one or more of those credit unions in consideration of the amalgamation or transfer, then in the case of each of the credit unions concerned in the amalgamation or transfer—

• (a) that provision must be approved by the special resolution referred to in section 128 (2)(b) or, as the case may be, section 129 (2); or

• (b) the F376[Bank] must give consent as mentioned in subsection (2).

• (2) Where, in the case of a credit union proposing to transfer its engagements or to fulfil the engagements of another credit union—

• (a) the terms of the proposed transfer of engagements include provision for a distribution of funds as in subsection (1), and

• (b) the F376[Bank] is considering under section 129 (2) whether to give consent to the credit union proceeding by way of a resolution of its board of directors, rather than by special resolution,

the F376[Bank] shall not give that consent unless F376[it] is satisfied that the distribution proposed to be made by each credit union concerned is, in all the circumstances, justified and reasonable.

• (3) Any reference in this section to a distribution of funds, with reference to members, includes a reference to a distribution by means of a special rate of interest available to members for a limited period.

PART X Winding up

133. Petition of Registrar to wind up.

133.—(1) The F377[Bank] may petition the High Court for an order to wind up a credit union if it appears to F377[it] that—

• (a) the credit union is unable to pay sums due and payable to its members or its creditors;

• (b) there has been, in relation to the credit union, a failure to comply with any provision made by, or under or by virtue of, this Act and the failure has continued after notice from the F377[Bank] to the credit union to remedy it; or

• (c) less than one half of the members of the credit union have a common bond;

or in any other case where it appears to the F377[Bank] that the winding up of the credit union is in the public interest or is just and equitable, having regard to the interests of all the members of the credit union.

• (2) If a petition under this section is presented within one year after the credit union concerned has changed its name, the former name, as well as the existing name shall appear on all notices and advertisements relating to the winding up.

134. Winding up under the Companies Acts.

134.—(1) Subject to this section, a credit union may be dissolved by being wound up in accordance with the Companies Acts and, accordingly, those Acts shall, subject to any necessary modifications, apply as if a credit union were a company limited by shares.

• (2) In the application of the Companies Acts to the winding up of a credit union—

• (a) any reference in those Acts to the registrar of companies shall be construed as a reference to the F378[Bank];

• (b) any reference in those Acts to the articles of association shall be construed as a reference to the rules of a credit union; and

• (c) any reference in those Acts to a special resolution shall be construed as a reference to a special resolution within the meaning of this Act.

• (3) Without prejudice to subsection (2), where a credit union is being wound up as mentioned in subsection (1), the F378[Bank] shall be entitled to appear and be heard in any proceedings relating to the winding up.

• (4) Where a credit union is wound up as mentioned in subsection (1), the liability of a present or past member of the credit union for payment of the debts and liabilities of the credit union, the expenses of winding up and the adjustment of the rights of contributories among themselves shall be qualified as follows—

• (a) no person who ceased to be a member not less than one year before the beginning of the winding up shall be liable to contribute;

• (b) no person shall be liable to contribute in respect of any debt or liability contracted F379[after the person ceased to be a member];

• (c) no person who is not a member shall be liable to contribute unless it appears to the Court that the contributions of the existing members are insufficient to satisfy the just demands on the credit union;

• (d) no contribution shall be required from any person exceeding the amount, if any, unpaid on the shares F379[in respect of which the person is liable] as a past or present member; and

• (e) in the case of a share which has been withdrawn, a person shall be taken to have ceased to be a member in respect of that share F379[as from the date of the person’s notice] under section 32 (1) of intention to withdraw or, as the case may be, the approval of the withdrawal under section 32 (3)(b).

• F380[(5) Where a credit union is wound up by virtue of this section, sections 293 to 299 of the Companies Act 1963 and sections 202 to 204 of the Companies Act 1990, in so far as they relate to the liabilities of directors and officers (within the meaning of those Acts) of a company being wound up, shall apply with any necessary modifications in relation to the officers of the credit union to whom paragraph (a) of the definition of "officer" in section 2 applies.]

135. Winding up by instrument of dissolution.

135.—(1) Subject to the provisions of this section, if by a special resolution a credit union resolves that it be wound up by an instrument of dissolution, the credit union shall be dissolved by such an instrument, bearing the signatures of the secretary and a member of the board of directors.

• (2) An instrument of dissolution shall set forth—

• (a) the liabilities and assets of the credit union in detail;

• (b) the number of the members and the nature of their respective interests in the credit union;

• (c) the claims of creditors, if any, and the provision to be made for their payment; and

• (d) the intended appropriation or division of any surplus or balance, as recommended by the board of directors and approved by the F381[Bank];

and in paragraph (d) “surplus or balance” means surplus or balance of funds and property of the credit union left after members have been paid in full.

• (3) Alterations to the instrument of dissolution may be made by the consent of not less than three quarters of the members of the credit union present and voting at a special general meeting called for the purpose, which consent shall be testified by the signatures of the secretary and a member of the board of directors to the alteration.

• (4) The instrument of dissolution shall be sent to the F381[Bank] accompanied by a statutory declaration made by the secretary and three other members of the credit union stating that all relevant provisions of this Act have been complied with.

• (5) After the F381[Bank] has received such a final return as is referred to in section 124 (4), the instrument of dissolution and any amendments to it shall be registered in like manner as an amendment of the rules of the credit union and shall be binding upon all the members of the credit union.

• (6) The F381[Bank] shall cause notice of the dissolution to be advertised at the expense of the credit union in Iris Oifigiúil and in any other manner which the F381[Bank] considers necessary for bringing the notice to the attention of persons affected by the dissolution and, subject to subsection (7), from the date of the advertisement or, if it is later, the date when the certificate required by section 136 (1) is lodged with the F381[Bank], the credit union shall be dissolved.

• F382[(7) A credit union shall not be dissolved as mentioned in subsection (6) if—

• (a) within one month of the date of the advertisement referred to in that subsection, a member or other person interested in or having any claim on the funds of the credit union commences proceedings in the Court to set aside the dissolution of the credit union,

• (b) not less than 7 days before those proceedings are commenced, the person intending to institute them serves notice of intention on the Bank, and

• (c) the dissolution of the credit union is set aside accordingly,

and, within 7 days from the making of any order setting the dissolution aside, the credit union shall send notice of the order to the Bank.]

• F383[(8) If the date of the meeting at which the special resolution referred to in subsection (1) is passed falls within one year after the credit union has changed its name, the former name, as well as the existing name, shall appear on all notices and advertisements relating to its dissolution under this section.]

136. Restriction on dissolution or cancellation of registration.

136.—F384[(1) Until a certificate under this section has been lodged with the Bank—

• (a) a credit union shall not be dissolved in accordance with section 135(6), and

• (b) the Bank shall not cancel the registration of a credit union under section 97 (2)(b).]

• (2) A certificate under this section is one which—

• F386[(a) is signed by the secretary or other officer (other than a person who is an officer solely by virtue of being a voluntary assistant) of the dissolving or transferor credit union approved by the Bank; and]

• (b) certifies that all property vested in the credit union has been duly conveyed or transferred to the persons entitled.

PART XI Appointment of Credit Union Administrator

137. Administration orders.

137.—(1) The F387[Bank] may present a petition to the Court for an order (in this Part referred to as an “administration order”) for—

• (a) the administration of a credit union; and

• (b) the appointment of a person nominated by the F387[Bank] to be the administrator of the credit union;

and may do so notwithstanding that there is or may be another remedy or course of action available to F387[it] in relation to that credit union.

• (2) On a petition under subsection (1), the Court may make an administration order if it considers—

• (a) that the manner in which the business of the credit union is being or has been conducted has failed to make adequate provision for its debts, including contingent and prospective liabilities, or

• (b) that the business of the credit union is being or has been so conducted as to jeopardise or prejudice the rights and interests of its members, or

• (c) that the credit union has become unable to comply with the requirements of this Act in a material respect,

and that the making of an administration order would assist in the re-establishment, in the public interest, of the proper and orderly regulation and conduct of the credit union.

• (3) The administrator of a credit union—

• (a) shall take over the management of the business of the credit union; and

• (b) shall carry on that business as a going concern with a view to placing it on a sound financial footing; and

• (c) shall have in relation to the credit union all such powers as may be necessary for or incidental to his functions in relation to the credit union, including the sole authority over, and direction of, all officers F388[…] of the credit union.

• (4) The administration of a credit union under this Part shall be deemed to have commenced at the time of the presentation of the petition for the administration order.

138. Provisional administrators.

138.—(1) At any time after the presentation of a petition under section 137 (1) (and before the making of an administration order), the Court may—

• (a) upon the ex parte application of the F389[Bank], and

• (b) upon prima facie proof by affidavit of one or more of the matters mentioned in paragraphs (a) to (c) of subsection (2) of section 137, and

• (c) without advertisement or notice to any person,

appoint such person as may be nominated by the F389[Bank] to act as provisional administrator of the credit union pending the hearing of the petition.

• (2) Unless the context otherwise requires, any reference in the following provisions of this Part to an administrator of a credit union includes a reference to a provisional administrator appointed under this section.

• (3) If—

• (a) an appointment of a provisional administrator of a credit union is made under this section, but

• (b) on the hearing of the petition no administration order is made,

the appointment of the provisional administrator shall be annulled; but the annulment shall not invalidate any act done or other function performed by him as provisional administrator.

• (4) Where the appointment of a person as provisional administrator of a credit union is annulled under subsection (3), he shall nevertheless be entitled to be paid out of the assets of the credit union all the costs, charges and expenses properly incurred by him as provisional administrator, including such sum as the Court may fix for his remuneration, and may retain the amount of those costs, charges and expenses out of the assets of the credit union.

139. Effect of administration.

139.—(1) For as long as the administrator of a credit union stands appointed under this Act, the following provisions shall have effect—

• (a) no proceedings or resolution for the winding up of the credit union shall be commenced or passed without the prior sanction of the Court;

• (b) no receiver over any part of the property of the credit union shall be appointed without the prior sanction of the Court;

• (c) no attachment, sequestration, distress or execution shall be put into force against any part of the property of the credit union without the prior sanction of the Court;

• (d) the words “under administration” shall be used in relation to the name of the credit union in all circumstances in which the words “in liquidation” would fall to be used in relation to the name of a company being wound up by the Court;

• (e) the functions of the administrator may be performed by him with the assistance of persons appointed or employed by him for that purpose;

• (f) all functions which are vested in the directors or in a principal Committee of the credit union (whether by virtue of its rules or by law or otherwise) shall be performable only by the administrator and all such powers of the credit union as are exercisable by a general meeting of the credit union shall be exercisable only by the administrator and that exercise shall be subject to the sanction of the Court;

• (g) the administrator may apply to the Court to determine any question arising in the course of the exercise of the administration of the credit union;

• (h) the administrator may resign or, upon the application of the F390[Bank], may be removed by the Court for cause shown; and

• (i) a vacancy in the office of administrator may be filled by the Court upon the nomination of the F390[Bank].

• (2) Except as provided by this section, the business of a credit union in respect of which an administrator has been appointed shall be continued without interruption as a going concern, and no contract (including a contract of employment or service), policy, transaction, bank account or bank mandate, right, title, claim, debt, proceeding or obligation of the credit union or right, claim or proceeding against the credit union shall be avoided, cancelled, stayed or otherwise affected by reason only of the appointment of the administrator or the existence of an administration order.

• (3) Where an administrator is appointed in respect of a credit union—

• (a) the costs and expenses of the performance of his functions and his remuneration shall be paid, and

• (b) he shall be entitled to be indemnified in respect of the costs, expenses and remuneration referred to in paragraph (a) and to retain them from time to time,

out of the revenue of the business of the credit union or the proceeds of the realisation of the assets (including investments) or other funds available to the credit union.

• (4) On the application of the administrator of a credit union, the Court shall by order fix the amount, or the basis of calculation of the amount, of the costs, expenses and remuneration of the administrator; and such an order may extend to a period prior to the date of the making of the order.

• (5) Within six weeks of each anniversary of his appointment (or at such other times as the Court may direct) the administrator of a credit union shall deliver to the Court a summary of the sums received or retained by him in each year for the costs and expenses of the administration and for his remuneration.

• (6) Within four weeks of his appointment, and within four weeks of each anniversary of his appointment, the administrator of a credit union, in exercise of the power of the board of directors under section 79 (1), shall convene a special general meeting of the credit union at which he shall report to the members on his work and plans as administrator of the credit union.

140. Termination of administration.

140.—(1) The administration of a credit union and the appointment of an administrator pursuant to an administration order shall terminate—

• (a) upon the making of an order for the winding up of the credit union concerned; or

• (b) upon the making of an order under Part XII for the appointment of an examiner to the credit union concerned; or

• (c) upon the making of an order by the Court, in accordance with subsection (2), for the termination of the administration.

• (2) The Court shall not make an order for termination of the administration of a credit union except—

• (a) on the application of the F391[Bank] or of the administrator with the approval of the F391[Bank]; and

• (b) in circumstances where the Court considers—

• (i) that, if the administration is terminated, the business of the credit union will not be so conducted as to jeopardise or prejudice the rights and interests of its members and will continue to be in all other respects on a sound financial footing; and

• (ii) that it would be unjust and inequitable not to make the order.

141. Procedural matters.

141.—(1) The whole or any part of any proceedings under this Part, or an appeal in relation thereto, may be heard otherwise than in public if the Court considers that the interests of the credit union concerned or its members or creditors or the public interest so requires.

• (2) If at any time no rules of court in respect of the making of an administration order under this Part are in force, then, subject to section 138 (4) and subsections (3) and (4), the provisions of Order 74 of the Rules of the Superior Courts (S.I. No. 15 of 1986), or any rules of court for the time being amending or replacing that Order, shall apply with any necessary modifications.

• (3) Unless the Court otherwise directs—

• (a) a petition under section 137 (1) shall be served only on the credit union; and

• (b) on the hearing of such a petition, only the F392[Bank] and the credit union concerned shall be entitled to be heard.

• (4) In so far as the provisions of any such Order or other rules of court as are referred to in subsection (2) relate, in the case of an official liquidator, to the giving of security, the filing of accounts, the lodging of monies to a bank account or the fixing of the remuneration of the liquidator, those provisions shall not apply in the case of an administrator.

PART XII Appointment of Examiner

142. Power of the Court to appoint examiner.

142.—(1) Where, on application by petition under this section, it appears to the Court that—

• (a) a credit union is or is likely to be unable to pay its debts, and

• (b) no resolution subsists for the winding up of the credit union, and

• (c) no order has been made for the winding up of the credit union,

it may, subject to subsection (2), appoint an examiner to the credit union for the purpose of examining the state of the credit union's affairs and performing such duties in relation to the credit union as may be imposed by or under this Part; and in the following provisions of this Part, “examiner” means an examiner appointed under this section.

• (2) The Court shall not make an order under this section unless it is satisfied that there is a reasonable prospect of the survival of the credit union as a going concern.

• (3) A petition under this section may be presented by the F393[Bank] or, with the consent of the F393[Bank], by all or any of the following, together or separately—

• (a) the credit union;

• (b) the directors of the credit union;

• (c) a qualifying group of members of the credit union; and

• (d) a creditor, or contingent or prospective creditor (including an employee), of the credit union;

and, at the hearing of a petition under this section, every such creditor as is mentioned in paragraph (d) shall have a right to be heard (whether or not he is a party to the presentation of the petition).

• (4) For the purpose of paragraph (c) of subsection (3), a group of members of a credit union is a qualifying group if—

• (a) each of them has been a member throughout the period of 12 months ending on the date of the application for the consent of the F393[Bank] under that subsection; and

• (b) they together number at least 30 or, if it is less, at least ten per cent. of the membership of the credit union on that date.

• (5) For the purposes of this section, a credit union is unable to pay its debts if—

• (a) it is unable to pay its debts as they fall due; or

• (b) the value of its assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.

• (6) In deciding whether to make an order under this section, the Court may also have regard to whether the credit union has sought from its creditors significant extensions of time for the payment of its debts, from which it could reasonably be inferred that the credit union was likely to be unable to pay its debts.

143. Petition for protection of the Court.

143.—(1) A petition presented under section 142—

• (a) shall nominate a person to be appointed as examiner;

• (b) subject to section 146, shall be accompanied by a report under section 145, prepared by a person (in this Part referred to as “the independent accountant”) who is either the auditor of the credit union concerned or a person who is qualified to be an auditor of a credit union; and

• (c) shall be accompanied by a consent signed by the person nominated to be examiner.

• (2) The Court shall not give a hearing to a petition under section 142 which is presented by a contingent or prospective creditor until such security for costs has been given as the Court considers reasonable.

• (3) The Court shall not give a hearing to a petition under section 142 if a receiver stands appointed to the credit union the subject of the petition and that receiver has stood so appointed for a continuous period of at least three days prior to the presentation of the petition, excluding a Saturday, Sunday or public holiday.

• (4) The Court may decline to hear a petition under section 142 or, as the case may be, may decline to continue hearing such a petition if it appears to the Court that, in the preparation or presentation of the petition or in the preparation of the report of the independent accountant, the petitioner or independent accountant—

• (a) has failed to disclose any information available to him which is material to the exercise by the Court of its powers under this Part; or

• (b) has in any other way failed to exercise the utmost good faith.

• (5) On hearing a petition under section 142, the Court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make any interim order or any other order it thinks fit.

• (6) Without prejudice to the generality of subsection (5), an interim order under that subsection may restrict the exercise of any powers of the directors or of the credit union (whether by reference to the consent of the Court or otherwise).

• (7) On the making of an order under subsection (5), the examiner or such other person as the Court may direct shall deliver an office copy of the order to the F394[Bank] for placing on the public file of the credit union.

144. Powers of the Circuit Court.

144.—(1) Where it appears to the Court that the total liabilities of the credit union (taking into account its contingent and prospective liabilities) do not exceed £250,000, the Court may, after making such interim or other orders as it thinks fit, order that the matter be remitted to the Circuit Court.

• (2) Where an order is made by the Court under subsection (1), the Circuit Court shall have full jurisdiction to exercise all the powers of the Court conferred by this Part in relation to the credit union and every reference to the Court in this Part shall be construed accordingly.

• (3) Where, in any proceedings under this Part which have been remitted to the Circuit Court by virtue of subsection (1), it appears to the Circuit Court that the total liabilities of the credit union exceed £250,000, it shall, after making such interim orders as it thinks fit, make an order transferring the matter to the Court.

• (4) The jurisdiction of the Circuit Court under this section shall be exercised by the judge for the time being assigned to the circuit in which the registered office of the credit union is situated.

145. The independent accountant's report.

145.—(1) The report of the independent accountant referred to in section 143 (1)(b) shall comprise the following—

• (a) the names and permanent addresses of the officers of the credit union and, in so far as the independent accountant can establish, any person in accordance with whose directions or instructions the directors of the credit union are accustomed to act;

• (b) the names of any other bodies corporate of which the directors of the credit union are also directors;

• (c) a statement as to the affairs of the credit union showing, in so far as it is reasonably possible to do so, particulars of the credit union’s assets and liabilities (including contingent and prospective liabilities) as at the latest practicable date, the names and addresses of its creditors, the securities held by them respectively and the dates when the securities were respectively given;

• (d) whether in the opinion of the independent accountant any deficiency between the assets and the liabilities of the credit union has been satisfactorily accounted for or, if not, whether there is evidence of a substantial disappearance of property that is not adequately accounted for;

• (e) his opinion as to whether the credit union would have a reasonable prospect of survival as a going concern and a statement of the conditions which he feels are essential to ensure such survival, whether as regards the internal management and controls of the credit union or otherwise;

• (f) his opinion as to whether the formulation, acceptance and confirmation of proposals for a compromise or scheme of arrangement would offer a reasonable prospect of the survival of the credit union as a going concern;

• (g) whether, in his opinion, an attempt to keep the credit union in being would be likely to be more advantageous to the members as a whole and the creditors as a whole than a winding-up of the credit union;

• (h) recommendations as to the course he thinks should be taken in relation to the credit union including, if warranted, draft proposals for a compromise or scheme of arrangement;

• (i) his opinion as to whether the facts disclosed would warrant further inquiries with a view to proceedings under section 297 or section 297A of the Companies Act, 1963;

• (j) details of the extent of the funding required to keep the credit union in being during the period of protection and the sources of that funding;

• (k) his recommendations as to which debts incurred before the presentation of the petition should be paid;

• (l) his opinion as to whether the work of the examiner would be assisted by a direction of the Court in relation to the role or membership of any creditors' committee referred to in section 160; and

• (m) such other matters as he thinks relevant.

• (2) The independent accountant shall supply a copy of his report under this section to the credit union and to the F395[Bank] on the same day as his delivery of the report to the Court.

• (3) The independent accountant shall also supply a copy of his report under this section to any member or creditor of the credit union on written application, provided that that supply may, if the Court so directs, be subject to the omission of such parts of the report as the Court thinks fit.

• (4) The Court may, in particular, give a direction under subsection (3) if it considers that the inclusion of certain information in the copy of the report to be supplied under that subsection would be likely to prejudice the survival of the credit union as a going concern.

146. Interim protection pending report.

146.—(1) If a petition presented under section 142 shows, and the Court is satisfied—

• (a) that, by reason of exceptional circumstances outside the control of the petitioner, the report of the independent accountant is not available in time to accompany the petition, and

• (b) that the petitioner could not reasonably have anticipated the circumstances referred to in paragraph (a),

and, accordingly, the Court is unable to consider the making of an order under that section, the Court may make an order under this section placing the credit union under the protection of the Court for such period, not exceeding ten days, as the Court thinks appropriate in order to allow for the submission of the independent accountant's report.

• (2) Where an order is made under this section it shall be the duty of the directors of the credit union to provide all reasonable assistance in the preparation of the report of the independent accountant and, in particular, to furnish the information specified in paragraphs (a) to (c) of subsection (1) of section 145.

• (3) Any person who fails to comply with subsection (2) shall be guilty of an offence.

• (4) If the report of the independent accountant is submitted to the Court before the expiry of the period of protection ordered under subsection (1), the Court shall proceed to consider the petition together with the report as if they were presented in accordance with section 143(1).

• (5) If the report of the independent accountant is not submitted to the Court before the expiry of the period of protection ordered under subsection (1), then, at the expiry of that period, the credit union shall cease to be under the protection of the Court, but without prejudice to the presentation of a further petition under section 142.

147. Effect of petition to appoint examiner on creditors and others.

147.—(1) Subject to section 146, during the period beginning with the date of the presentation of a petition under section 142 and (subject to subsections (4) and (5) of section 157) ending on the expiry of 70 days from that date or on the withdrawal or refusal of the petition, whichever first happens, the credit union shall be deemed to be under the protection of the Court.

• (2) For so long as a credit union is under the protection of the Court in a case under this Part, the following provisions shall have effect—

• (a) no proceedings for the winding up of the credit union may be commenced or resolution for winding up passed in relation to the credit union and any resolution so passed shall be of no effect;

• (b) any other proceedings in relation to the credit union may be commenced only with the leave of the Court and subject to such terms as the Court may impose;

• (c) on the application of the examiner, the Court may make such order as it thinks proper in relation to any existing proceedings, including an order to stay those proceedings;

• (d) no receiver shall be appointed over any part of the assets of the credit union and, if a receiver was appointed before the presentation of a petition under section 142, then, subject to section 148, he shall not be able to act;

• (e) no attachment, sequestration, distress or execution shall be put into force against the property of the credit union, except with the consent of the examiner;

• (f) where any claim against the credit union is secured by a charge, pledge, or other encumbrance of, on or affecting the whole or any part of the property of the credit union, no action may be taken to realise the whole or any part of that security, except with the consent of the examiner;

• (g) no steps may be taken to repossess goods in the credit union's possession under any hire-purchase agreement (within the meaning of section 153) except with the consent of the examiner;

• (h) where, under any enactment, rule of law or otherwise any person other than the credit union is liable to pay all or any part of the debts of the credit union—

• (i) no attachment, sequestration, distress or execution shall be put into force against the property of that person in respect of the debts of the credit union, and

• (ii) no proceedings of any sort may be commenced against that person in respect of the debts of the credit union;

• (i) no set-off between separate bank accounts of the credit union shall be effected, except with the consent of the examiner, and in this paragraph “bank account” includes an account with any person exempt by virtue of section 7 (4) of the Central Bank Act, 1971, from the requirement of holding a licence under section 9 of that Act.

148. Effect on receiver or provisional liquidator of order appointing examiner.

148.—(1) Where, at the time of the presentation of a petition under section 142 with respect to a credit union, a receiver or provisional liquidator stands appointed to the whole or any part of the assets of that credit union, the Court may make such order as it thinks fit, including an order as to any or all of the following matters—

• (a) that the receiver or provisional liquidator shall cease to act as such from a date specified by the Court;

• (b) that, where a receiver stands appointed, he shall, from a date specified by the Court, act as such only in respect of certain assets specified by the Court;

• (c) that, where a provisional liquidator stands appointed, he be appointed as examiner;

• (d) directing the receiver or provisional liquidator to deliver all books and documents which relate to the assets of the credit union (or any part thereof) and are in his possession or control, to the examiner within a period to be specified by the Court;

• (e) directing the receiver or provisional liquidator to give the examiner full particulars of all his dealings with the assets of the credit union.

• (2) In deciding whether to make an order under paragraph (a) or paragraph (b) of subsection (1), the Court shall have regard to whether there is a reasonable prospect of the survival of the credit union as a going concern.

• (3) Where the Court makes an order under subsection (1) it may, for the purpose of giving full effect to the order, include such conditions in the order and make such ancillary or other orders as it deems fit.

• (4) Where a petition is presented under section 142 in respect of a credit union at a date subsequent to the presentation of a petition for the winding up of that credit union, but before a provisional liquidator has been appointed or an order made for its winding up, both petitions shall be heard together.

149. Powers of an examiner.

149.—(1) Any provision of this Act relating to the rights and powers of an auditor of a credit union and the supplying of information to or co-operation with such an auditor shall, with the necessary modifications, apply to an examiner.

• (2) Notwithstanding any provision of this Act relating to notice of general meetings, an examiner shall have power to convene, set the agenda for, and preside at meetings of the board of directors and general meetings of the credit union to which the examiner is appointed and to propose motions or resolutions and to give reports to any such meetings.

• (3) An examiner shall be entitled to reasonable notice of, to attend and be heard at, all meetings of the board of directors of a credit union and all general meetings of the credit union to which he is appointed.

• (4) For the purpose of subsection (3) “reasonable notice”, in relation to a meeting, shall be deemed to include a description of the business to be transacted at the meeting.

• (5) Where an examiner becomes aware of any actual or proposed act, omission, course of conduct, decision or contract, by or on behalf of the credit union to which he has been appointed, or by its officers, F396[…] members or creditors or by any other person in relation to the income, assets or liabilities of that credit union which, in his opinion, is or is likely to be to the detriment of the credit union, or any member or creditor of the credit union, he shall, subject to the rights of parties acquiring an interest in good faith and for value in the income, assets or liabilities, have full power to take whatever steps are necessary to halt, prevent or rectify the effects of the act, omission, course of conduct, decision or contract.

• (6) The examiner may apply to the Court to determine any question arising in the course of his office.

• (7) The examiner shall, if so directed by the Court, have power to ascertain and agree claims against the credit union to which he has been appointed.

150. Production of documents and evidence.

150.—(1) It shall be the duty of all persons who are, or at any material time were, officers, members F397[…] or agents of a credit union to which an examiner has been appointed to produce to the examiner all books and documents of or relating to the credit union which are in their possession or power, to attend before him when required so to do and otherwise to give to him all assistance in connection with his functions which they are reasonably able to give.

• (2) If the examiner considers that a person other than one falling within subsection (1) is or may be in possession of any information concerning the affairs of the credit union the examiner may require that person to produce to him any books or documents in that person's possession or power relating to the credit union, to attend before him and otherwise to give him all assistance in connection with his functions which that person is reasonably able to give; and it shall be the duty of that person to comply with the requirement.

• (3) If the examiner has reasonable grounds for believing that a person who is, or at a material time was, an officer, member F398[…] or agent of a credit union maintains or has maintained a bank account of any description, whether alone or jointly with another person and whether in the State or elsewhere, into or out of which there has been paid—

• (a) any money which has resulted from or been used in the financing of any transaction, arrangement or agreement particulars of which have not been disclosed in the accounts of the credit union for any financial year as required by law; or

• (b) any money which has been in any way connected with any act or omission, or series of acts or omissions, which on the part of that officer, member F398[…] or agent constituted misconduct (whether fraudulent or not) towards the credit union or its members;

the examiner may require the person concerned to produce to him all books and documents in his possession or under his control relating to that bank account; and in this subsection “bank account” includes an account with any person exempt by virtue of section 7 (4) of the Central Bank Act, 1971, from the requirement of holding a licence under section 9 of that Act.

• (4) An examiner may examine on oath, either by word of mouth or on written interrogatories, any person who is, or at a material time was, an officer, member F399[…] or agent of the credit union or any other such person as is mentioned in subsection (2) in relation to the affairs of the credit union and may—

• (a) administer an oath accordingly; and

• (b) reduce the answers of any such person to writing and require him to sign them.

• (5) If any such person as is referred to in subsection (4)—

• (a) refuses to produce to the examiner any book or document which it is his duty under this section to produce, or

• (b) refuses to attend before the examiner when required to do so, or

• (c) refuses to answer any question which is put to him by the examiner with respect to the affairs of the credit union,

the examiner may certify the refusal under his hand to the Court, and the Court may thereupon enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and any statement which may be offered in defence, may make any order or direction it thinks fit.

• (6) Without prejudice to the generality of subsection (5), the Court may, after a hearing under that subsection, make a direction—

• (a) to the person concerned to attend or re-attend before the examiner or produce particular books or documents or answer particular questions put to him by the examiner; or

• (b) that the person concerned need not produce a particular book or document or answer a particular question put to him by the examiner.

• (7) Nothing in this section shall compel the production by a barrister or solicitor of any books or documents containing a privileged communication made by or to him in that capacity or the furnishing of information contained in a privileged communication so made.

• (8) In this section “agents”, in relation to a credit union, includes its bankers, accountants and solicitors, any person who is or has been an auditor of the credit union and its financial and other advisers.

151. Further powers of the Court.

151.—(1) Where it appears to the Court, on the application of the examiner, that, having regard to the matters referred to in subsection (2), it is just and equitable to do so, it may make an order that all or any of the functions which are vested in or exercisable by the directors (whether by virtue of the rules of the credit union or by law or otherwise) shall be performable or exercisable only by the examiner.

• (2) The matters to which the Court is to have regard for the purpose of subsection (1) are—

• (a) that the affairs of the credit union are being conducted, or are likely to be conducted, in a manner which is calculated or likely to prejudice the interests of the credit union or of its members or of its creditors as a whole; or

• (b) that it is expedient, for the purpose of preserving the assets of the credit union or of safeguarding the interests of the credit union or of its members or of its creditors as a whole, that the carrying on of the business of the credit union by, or the exercise of the powers of, its directors should be curtailed or regulated in any particular respect; or

• (c) that the credit union, or its directors, have resolved that an order under subsection (1) should be sought; or

• (d) any other matter in relation to the credit union the Court thinks relevant.

• (3) Where the Court makes an order under subsection (1), it may, for the purpose of giving full effect to the order, include such conditions in the order and make such ancillary or other orders as it sees fit.

• (4) Without prejudice to the generality of subsections (1) and (3), an order under this section may provide that the examiner shall have all or any of the powers that he would have if he were a liquidator appointed by the Court in respect of the credit union and, where such an order so provides, the Court shall have all the powers that it would have if it had made a winding up order and appointed a liquidator in respect of the credit union concerned.

152. Incurring of certain liabilities by examiner.

152.—(1) Any liabilities which are incurred by the credit union during the protection period and which fall within subsection (2) shall be treated as expenses properly incurred, for the purpose of section 168, by the examiner.

• (2) The liabilities referred to in subsection (1) are those certified by the examiner at the time they are incurred, to have been incurred in circumstances where, in the opinion of the examiner, the survival of the credit union as a going concern during the protection period would otherwise be seriously prejudiced.

• (3) In this section “protection period” means the period, beginning with the appointment of an examiner, during which the credit union is under the protection of the Court.

153. Power to deal with charged property etc.

153.—(1) Where, on an application by the examiner, the Court is satisfied that there is a reasonable prospect of the survival of the credit union as a going concern and that the disposal (with or without other assets) of—

• (a) any property of the credit union subject to a security, or

• (b) any goods in the possession of the credit union under a hire-purchase agreement,

would be likely to further that prospect, the Court may by order authorise the examiner to dispose of the property as if it were not subject to the security or dispose of the goods as if all rights of the owner under the hire-purchase agreement were vested in the credit union.

• (2) It shall be a condition of an order under subsection (1) that—

• (a) the net proceeds of the disposal, and

• (b) where those proceeds are less than such amount as may be determined by the Court to be the net amount which would be realised on a sale of the property or goods in the open market by a willing vendor, such sums as may be required to make good the deficiency,

shall be applied towards discharging the sums secured by the security or payable under the hire-purchase agreement.

• (3) Where a condition imposed in pursuance of subsection (2) relates to two or more securities, that condition requires the net proceeds of the disposal and, where paragraph (b) of that subsection applies, the sums mentioned in that paragraph to be applied towards discharging the sums secured by those securities in the order of their priorities.

• (4) An office copy of an order under subsection (1) in relation to a security shall, within seven days after the making of the order, be delivered by the examiner to the F400[Bank].

• F401[(5) If the examiner without reasonable excuse fails to comply with subsection (4), the examiner shall be guilty of an offence and liable to a class C fine.]

• (6) References in this section to a hire-purchase agreement include a conditional sale agreement, a retention of title agreement and an agreement for the bailment of goods which is capable of subsisting for more than three months.

154. Notification of appointment of examiner.

154.—(1) Where a petition is presented under section 142, notice of the petition shall, within three days after its presentation, be placed on the public file of the credit union.

• (2) An examiner shall, within the time limits specified in subsection (3), cause notice of his appointment and the date thereof to be published in Iris Oifigiúil and in at least two daily newspapers circulating in the district in which the registered office of the credit union is situated.

• (3) The time limits referred to in subsection (2) are—

• (a) twenty-one days after the examiner's appointment in the case of Iris Oifigiúil, and

• (b) three days after his appointment in the other case referred to in that subsection.

• (4) An examiner shall, within three days after his appointment, deliver to the F402[Bank] a copy of the order appointing him.

• (5) Where a credit union is, by virtue of section 146 or section 147, under the protection of the Court, every invoice, order for goods or letter issued by or on behalf of the credit union, being a document on or in which the name of the credit union appears, shall contain the statement “under the protection of the Court”.

• (6) An examiner who fails to comply with the provisions of this section shall be guilty of an offence.

155. General provisions as to examiners.

155.—(1) An examiner may resign or, on cause shown, be removed by the Court.

• (2) If for any reason a vacancy occurs in the office of examiner, the Court, on an application made by the F403[Bank] or by the person on whose petition the examiner was appointed, may by order fill the vacancy.

• (3) An examiner shall be described by the style of “the examiner” of the particular credit union in respect of which he is appointed and not by his individual name.

• (4) The acts of an examiner shall be valid notwithstanding any defects that may afterwards be discovered in his appointment or qualification.

• (5) An examiner shall be personally liable on any contract entered into by him in the performance of his functions, whether the contract is entered into by him in the name of the credit union or in his own name as examiner or otherwise, unless the contract provides that he is not to be personally liable on the contract, and he shall be entitled in respect of that liability to indemnity out of the assets of the credit union.

• (6) Nothing in subsection (5) shall be taken as limiting any right to indemnity which an examiner would have apart from that subsection, or as limiting his liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.

• (7) Where an examiner has been appointed to a credit union,—

• (a) the credit union,

• (b) the F403[Bank], or

• (c) a member or creditor of the credit union,

may apply to the Court for the determination of any question arising out of the performance or otherwise by the examiner of his functions.

156. Hearing relating to missing property etc.

156.—(1) Where, in relation to a credit union which is under the protection of the Court, there is evidence, whether contained in the report of the independent accountant or otherwise, of a substantial disappearance of property that is not adequately accounted for, or of other serious irregularities in relation to the affairs of the credit union, the Court shall, as soon as practicable, hold a hearing to consider that evidence.

• (2) If, in advance of a hearing under subsection (1), the Court so requests, the examiner shall prepare a report on the issues raised by the evidence in question.

• (3) Where the examiner prepares a report as mentioned in subsection (2), the examiner shall supply a copy of his report to the credit union and the F404[Bank] on the same day as his delivery of the report to the Court.

• (4) The examiner shall also supply a copy of a report prepared by him as mentioned in subsection (2)—

• (a) to every person who is mentioned in the report, and

• (b) on written application, to any member or creditor of the credit union,

provided that any supply may, if the Court so directs, be subject to the omission of such parts of the report as the Court thinks fit.

• (5) The Court may, in particular, give a direction under subsection (4) if it considers that the inclusion of certain information in the copy of the report in question would be likely to prejudice the survival of the credit union as a going concern.

• (6) The following parties shall be entitled to appear and to be heard at a hearing under subsection (1)—

• (a) the examiner;

• (b) the F404[Bank];

• (c) the credit union;

• (d) any member or creditor of the credit union, and

• (e) any person who is referred to in the report.

• (7) Following a hearing under subsection (1), the Court may make such order or orders as it deems fit.

• (8) An office copy of any order made by the Court under this section shall be delivered by the examiner, or by such other person as the Court may direct, to the F404[Bank] for placing on the public file of the credit union.

157. Duties of examiner.

157.—(1) As soon as practicable after he is appointed, the examiner shall formulate proposals for a compromise or scheme of arrangement for the survival of the credit union as a going concern and, notwithstanding any other provision of this Act, the Court may impose on the examiner such other duties as it deems appropriate.

• (2) Notwithstanding any provision of this Act relating to notice of general meetings, (but subject to notice of not less than three days in any case) the examiner shall convene and preside at such meetings of members and creditors as he thinks proper, to consider such proposals as are referred to in subsection (1) and report thereon to the Court in accordance with section 158 within 35 days of his appointment or such longer period as the Court may allow.

• (3) The F405[Bank] shall have the right to attend and speak at any meeting convened under subsection (2).

• (4) Where, on the application of the examiner, the Court is satisfied that the examiner would be unable to report to the Court within the period of 70 days referred to in section 147 (1) but that he would be able to make a report if that period were extended, the Court may by order extend that period by not more than 30 days to enable him to do so.

• (5) Where the examiner has submitted a report under this section to the Court and, but for this subsection, the period mentioned in section 147 (1) (and any extended period allowed under subsection (4)) would expire, the Court may, of its own motion or on the application of the examiner, extend the period concerned by such period as the Court considers necessary to enable it to take a decision under section 163.

• (6) The examiner shall deliver a copy of his report under this section—

• (a) to the credit union and to the F405[Bank] on the same day as his delivery of the report to the Court, and

• (b) to any member or creditor of the credit union on written application,

provided that delivery under paragraph (b) may, if the Court so directs, be subject to the omission of such parts of the report as the Court thinks fit.

• (7) The Court may, in particular, give a direction under subsection (6) if it considers that the inclusion of certain information in the copy of the report to be delivered under paragraph (b) of that subsection would be likely to prejudice the survival of the credit union, as a going concern.

158. Contents of examiner’s report under section 157.

158.—An examiner’s report under section 157 shall include—

• (a) the proposals placed before the required meetings;

• (b) any modification of those proposals adopted at any of those meetings;

• (c) the outcome of each of the required meetings;

• (d) the recommendation of the committee of creditors, if any, appointed under section 160;

• (e) a statement of the assets and liabilities (including contingent and prospective liabilities) of the credit union as at the date of his report;

• (f) a list of the creditors of the credit union, the amount owing to each such creditor, the nature and value of any security held by any such creditor, and the priority status of any such creditor under any statutory provision or rule of law;

• (g) a list of the officers of the credit union;

• (h) his recommendations; and

• (i) such other matters as the examiner deems appropriate or the Court directs.

159. Repudiation of certain contracts.