Companies Act 2014

• (i) a copy of the resolution removing the auditor, and

• (ii) a copy of any representations in writing made to the company, pursuant to section 397(2), by the outgoing auditor in relation to the intended resolution except where such representations were not sent out to the members of the company in consequence of an application to the court under section 397(4).

• (3) In this section—

• (a) “resignation” includes an indication of unwillingness to be re-appointed at an annual general meeting; and

• (b) a reference to a notice served under section 400(1) includes a reference to a notice given by the auditor that is referred to in section 383(2)(c).

405. Prohibition on acting in relation to audit while disqualification order in force

405. (1) If a person who is subject or deemed to be subject to a disqualification order (within the meaning of Chapter 4 of Part 14)—

• (a) becomes, or remains more than 28 days after the date of the making of the order, a partner in a firm of statutory auditors,

• (b) gives directions or instructions in relation to the conduct of any part of the audit of the financial statements of a company, or

• (c) works in any capacity in the conduct of an audit of the financial statements of a company,

he or she shall be guilty of a category 2 offence.

• (2) Where a person is convicted of an offence under subsection (1), the period for which he or she was disqualified by virtue of the foregoing order shall be extended for—

• (a) a further period of 10 years beginning after the date of conviction, or

• (b) such other (shorter or longer) further period as the court, on the application of the prosecutor or the defendant and having regard to all the circumstances of the case, may order.

• (3) Section 847 shall not apply to a person convicted of an offence under subsection (1).

CHAPTER 22 False statements — offence

406. False statements in returns, financial statements, etc.

406. If a person in any return, statement, financial statement or other document required by or for the purposes of any provision of this Part intentionally makes a statement, false in any material particular, knowing it to be so false, the person shall be guilty of a category 2 offence.

CHAPTER 23 Transitional

407. Transitional provision — companies accounting by reference to Sixth Schedule to Act of 1963

407. (1) Notwithstanding anything in this Part, the directors of an existing company may, in respect of a financial year to which this section applies, opt to prepare financial statements (and approve them) in accordance with the provisions of the Act of 1963 and the Sixth Schedule thereto.

• (2) This section applies to a financial year of an existing private company that satisfies the following conditions—

• (a) it begins before the commencement of this section and ends thereafter, and

• (b) accounts in respect of it could, but for the repeal of the prior Companies Acts, have been prepared by the directors of the company in accordance with the provisions of the Act of 1963 and the Sixth Schedule thereto (as distinct from the Companies (Amendment) Act 1986 and the other provisions of the prior Companies Acts or regulations made under the European Communities Act 1972).

• (3) All obligations and rights that arise under this Act consequent on or in respect of financial statements having been approved by the directors of a company shall likewise arise in relation to financial statements approved by directors in a case falling within subsection (1).

• (4) In this section—

“accounts” means accounts under the Act of 1963;

“existing private company” shall have the meaning given to it by section 15 but with the omission of all the words appearing after paragraphs (a) and (b) of that definition in section 15.

PART 7 CHARGES AND DEBENTURES

CHAPTER 1 Interpretation

408. Definitions (Part 7)

408. (1) In this Part—

“charge”, in relation to a company, means a mortgage or a charge, in an agreement (written or oral), that is created over an interest in any property of the company (and in section 409(8) and sections 414 to 421 includes a judgment mortgage) but does not include a mortgage or a charge, in an agreement (written or oral), that is created over an interest in—

• (a) cash,

• (b) money credited to an account of a financial institution, or any other deposits,

• F313[(c) shares, including shares in a body corporate, bonds or debt instruments,]

• (d) units in collective investment undertakings or money market instruments, or

• (e) claims and rights (such as dividends or interest) in respect of any thing referred to in any of paragraphs (b) to (d);

“property”, in relation to a company, includes any assets or undertaking of the company.

• (2) Any exclusion provided in subsection (1) to what is defined in that subsection as constituting a “charge” may be varied by order made by the Minister if the Minister considers that it is necessary or expedient to do so in consequence of any Community act adopted after the commencement of this section relating to financial collateral arrangements.

• (3) For the avoidance of doubt, in the case of a mortgage or charge created over both—

• (a) an interest in anything specified in any of paragraphs (a) to (e) of subsection (1); and

• (b) any property, assets or undertaking not falling within any of those paragraphs,

the mortgage or charge shall, other than to the extent to which it is created over an interest in anything specified in any of the foregoing paragraphs of subsection (1), be regarded as a charge within the meaning of this Part.

CHAPTER 2 Registration of charges and priority

409. Registration of charges created by companies

409. (1) Every charge created, after the commencement of this section, by a company shall be void against the liquidator and any creditor of the company unless either the procedure set out in—

• (a) subsection (3) — the “one-stage procedure”, or

• (b) subsection (4) — the “two-stage procedure”,

with respect to the charge’s registration is complied with.

• (2) If, in purported compliance with the requirements of this Part as to the taking of steps in that behalf, there is received by the Registrar particulars of a charge that omit the required particulars in respect of one or more properties to which the charge relates, subsection (1) shall be read as operating to render void (as against the liquidator and any creditor of the company) the charge as it relates to the particular property or properties in respect of which that omission occurs but not otherwise.

• (3) The procedure for registration under this subsection referred to in subsection (1) as the one-stage procedure consists of the taking of steps so that there is received by the Registrar, not later than 21 days after the date of the charge’s creation, the prescribed particulars, in the prescribed form, of the charge.

• (4) The procedure for registration under this subsection referred to in subsection (1) as the two—stage procedure consists of the following, namely the taking of steps:

• (a) so that there is received by the Registrar a notice stating the company’s intention to create the charge (being a notice in the prescribed form and containing the prescribed particulars of the charge); and

• (b) so that, not later than 21 days after the date of the Registrar’s receipt of the notice under paragraph (a) (the “first-mentioned notice”), there is received by the Registrar a notice, in the prescribed form, stating that the charge referred to in the first-mentioned notice has been created.

• (5) If the requirement under paragraph (b) of subsection (4) is not complied with, within the period specified in that paragraph, the notice received under paragraph (a) of that subsection in relation to the charge shall be removed by the Registrar from the register.

• (6) Subsection (1) is without prejudice to any contract or obligation for repayment of the money secured by the charge concerned and when a charge becomes void under that subsection, the money secured by it shall immediately become payable.

• (7) Where a charge comprises property outside the State, the prescribed particulars, in the prescribed form (and, as the case may be, the notice under subsection (4)(b)) may be sent for registration under this section, notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate.

• (8) If there is a change among the one or more persons entitled to a charge registered under this Part, the fact of that change having occurred, and particulars of the person or persons now entitled to the charge, may be delivered, in the prescribed form, to the Registrar and registered by him or her.

• (9) Nothing in this section or any other provision of this Part authorises the delivery to the Registrar of a deed, or any supplemental document to it, and this Part does not impose or confer any duty or power on the Registrar to examine any deed or any supplemental document to it.

410. Duty of company with respect to registration under section 409 and right of others to effect registration

410. (1) It shall be the duty of the company that creates the charge to comply with the procedure under section 409(3) or (4) with respect to the charge’s registration but this is without prejudice to subsection (2).

• (2) Any person interested in the charge may use the procedure under section 409(3) or (4) with respect to its registration and the person’s using that procedure (and in compliance with section 409(3) or (4)) shall have the same effect as if the company had used that procedure (and in compliance with section 409(3) or (4)).

• (3) Where such a person uses that procedure (and in compliance with section 409(3) or (4)), the person may recover from the company the amount of fees properly paid by that person to the Registrar in respect of the registration of the charge concerned.

411. Duty of company to register charges existing on property acquired

411. (1) Where a company acquires any property which is subject to a charge that, if it had been created by the company after the acquisition of the property, would have given rise to the duty under section 409(1) on the part of the company with respect to the charge’s registration, then the company shall have the following duty.

• (2) That duty is to take steps so that there is received by the Registrar, not later than 21 days after the date on which acquisition of the property concerned is completed, the prescribed particulars, in the prescribed form, of the charge.

• (3) If default is made in complying with this section, the company and any officer of the company who is in default shall be guilty of a category 4 offence.

412. Priority of charges

412. (1) For the purposes of this section—

• (a) “relevant rule of law” means a rule of law that governs the priority of charges created by a company, and for the avoidance of doubt, any enactment governing the priority of such charges is not encompassed by that expression,

• (b) the reference in subsection (2) to any priority that one charge, by virtue of a person’s not having notice of a matter, enjoys over another charge or charges shall be deemed to include a reference to any priority that an advance made on foot of a charge, by virtue of a person’s not having notice of a matter, enjoys over a subsequent charge or charges.

• (2) On and from the commencement of this section, any relevant rule of law shall stand modified in the manner specified in subsection (3), but not so as to displace any priority, whether before or after that commencement, that one charge, by virtue of a person’s not having notice of a matter, enjoys over another charge or charges.

• (3) That modification is that, for the part of the rule that operates by reference to the time of creation of the 2 or more charges concerned, there shall be substituted a part that operates by reference to—

• (a) the dates of receipt by the Registrar of the prescribed particulars of the 2 or more charges concerned, or

• (b) if the date of receipt by the Registrar of the prescribed particulars of the 2 or more charges is the same, the respective times, on the date concerned, of receipt by the Registrar of those particulars.

• (4) References in subsection (3) to the date, or time, of receipt of the prescribed particulars are references to—

• (a) if the procedure under subsection (3) of section 409 is complied with in relation to a particular charge, the date, or time, of receipt by the Registrar of the prescribed particulars, in the prescribed form, of the charge, or

• (b) if the procedure under subsection (4) of section 409 is complied with in relation to a particular charge, the date, or time, of receipt by the Registrar of the notice, in the prescribed form and containing the prescribed particulars, in relation to the charge under paragraph (a) of that subsection (4).

• (5) Subsections (2) and (3) shall not affect any agreement between persons in whose favour charges have been created in relation to the priority that those charges shall, as between them, have.

• (6) Subject to subsection (7) in relation to particulars of a charge received by the Registrar pursuant to section 409(3) or (4), the following provisions apply so far as those particulars consist of particulars of a negative pledge, any events that crystallise a floating charge or any restrictions on the use of any charged asset (and particulars of any such matter are referred to subsequently in this subsection as “extraneous material”):

• (a) F314[the Registrar shall not be under any duty to enter in the register] under section 414 particulars of the extraneous material pursuant to that section;

• (b) the fact that the Registrar has received the particulars of the extraneous material shall have no legal effect;

but nothing in the foregoing affects the validity of the receipt by the Registrar of the other particulars of the charge.

• (7) Subsection (6) does not apply to particulars of a negative pledge included in particulars of a floating charge granted by a company to the Central Bank for the purposes of either providing or securing collateral.

• (8) In this section “negative pledge” means any agreement entered into by the company concerned and any other person or persons that—

• (a) provides that the company shall not, or shall not otherwise than in specified circumstances—

• (i) borrow moneys or otherwise obtain credit from any person other than that person or those persons,

• (ii) create or permit to subsist any charge, lien or other encumbrance or any pledge over the whole or any part of the property of the company, or

• (iii) alienate or otherwise dispose of in any manner any of the property of the company,

or

• (b) contains a prohibition, either generally or in specified circumstances, on the doing by the company of one or more things referred to in one, or more than one, provision of paragraph (a).

413. Registration and priority of judgment mortgages

413. (1) If judgment is recovered against a company and that judgment is subsequently converted into a judgment mortgage affecting any property of the company, the judgment mortgage shall be void against the liquidator and any creditor of the company unless the procedure set out in subsection (2) with respect to the judgment mortgage’s registration is complied with.

• (2) The procedure for registration under this subsection consists of the taking of steps so that there is received by the Registrar, together with the relevant judgment mortgage document, the prescribed particulars, in the prescribed form, of the judgment mortgage, not later than 21 days after the following date.

• (3) That date is the date on which notification by the Property Registration Authority of the judgment mortgage’s creation is received by the judgment creditor.

• (4) In subsection (2) the “relevant judgment mortgage document” means a certified copy of, as appropriate—

• (a) Form 60, 60A or 60B set out in the Schedule of Forms to the Land Registration Rules 2012 (S.I. No. 483 of 2012) as amended by the Land Registration Rules 2013 (S.I. No. 389 of 2013), or

• (b) Form 16 set out in the Schedule to the Registration of Deeds (No. 2) Rules 2009 (S.I. No. 457 of 2009),

used for the purposes of converting the judgment concerned into a judgment mortgage.

• (5) For the purposes of this section, it shall be presumed, until the contrary is proved, that the judgment creditor received notification, of the judgment mortgage’s creation, from the Property Registration Authority on the third day after the date on which that notification is sent by it to the judgment creditor or his or her agent.

• (6) If rules are made under section 126 of the Registration of Title Act 1964 or, as the case may be, section 48 of the Registration of Deeds and Title Act 2006—

• (a) replacing a form that is referred to in subsection (4)(a) or (b), as appropriate, the reference in that provision to the form shall be read as a reference to the form as so replaced, or

• (b) amending a form that is so referred to, the reference in that provision to the form shall be read as a reference to the form as it stands so amended.

• (7) This section shall not apply to any judgment mortgage created before the commencement of this section.

414. Register of charges

414. (1) The Registrar shall keep, in relation to each company, a register in the prescribed form, of the charges requiring registration under this Part, and shall, on payment of such fee as may be prescribed, enter in the register, in relation to such charges, the following particulars:

• (a) without prejudice to paragraphs (e) and (f), in the case of a charge created by the company, the date of its creation and—

• (i) where the procedure for registration under section 409(3) is complied with, the date and time of receipt by the Registrar under that provision of the prescribed particulars, in the prescribed form, of the charge, and

• (ii) where the procedure for registration under section 409(4) is complied with, the respective dates and times of receipt by the Registrar of the notices under paragraphs (a) and (b) of that provision in relation to the charge;

• (b) without prejudice to paragraphs (e) and (f), in the case of a charge existing on property acquired by the company, the date of the acquisition of the property by the company;

• (c) without prejudice to paragraphs (e) and (f), in the case of a judgment mortgage, the date of the mortgage’s creation and the date and time, in relation to it, of receipt by the Registrar, under section 413(2), of the prescribed particulars in the prescribed form together with the relevant judgment mortgage document referred to in that provision;

• (d) without prejudice to paragraphs (e) and (f), in the case of floating charge granted by the company to the Central Bank for the purposes either of providing or securing collateral, particulars of any provision of the charge that has the effect of prohibiting or restricting the company from issuing further securities that rank equally with that charge or modifying the ranking of that charge in relation to securities previously issued by the company;

• (e) short particulars of the property charged; and

• (f) the persons entitled to the charge.

• (2) The register kept in pursuance of this section shall be open to inspection by any person on payment of such fee, if any, as may be prescribed.

415. Certificate of registration

415. (1) The Registrar shall give a certificate of the registration of any charge registered in pursuance of this Part.

• (2) Subject to subsection (3), such a certificate shall be conclusive evidence that the requirements of this Part as to the registration of the charge have been complied with.

• (3) To the extent that the particulars of a charge delivered to the Registrar in purported compliance with this Part omit the required particulars in respect of one or more properties to which the charge relates, the evidential effect of the certificate provided under subsection (2) shall not extend to the particular property or properties in respect of which that omission occurs.

• (4) Without prejudice to the generality of the definition, in section 408, of that expression, in subsection (3) “property” includes an interest in, or right over, property.

416. Entries of satisfaction and release of property from charge

416. (1) The Registrar may exercise the powers under subsection (2), on evidence being given to his or her satisfaction with respect to any charge registered under this Part—

• (a) that the debt in relation to which the charge was created has been paid or satisfied in whole or in part, or

• (b) that part of the property charged has been released from the charge or has ceased to form part of the company’s property,

and, where the satisfaction or release has not been signed by or on behalf of the chargee, after giving notice to the person who, for the time being, stands registered as the person entitled to such charge or to the judgment creditor, as the case may be.

• (2) Those powers are to enter on the register a memorandum—

• (a) of satisfaction in whole or in part, or

• (b) of the fact that part of the property has been released from the charge or has ceased to form part of the company’s property,

as the case may be.

• (3) Where the Registrar enters such a memorandum of satisfaction in whole, he or she shall, if required, furnish the company with a copy of it.

• (4) The Registrar may accept as evidence of a satisfaction or release referred to in subsection (1)(a) or (b) a statement in the prescribed form signed by a director and secretary of the company, or by 2 directors of the company, stating that the satisfaction or release has occurred.

• (5) Where a person signs a statement referred to in subsection (4) knowing it to be false, the person shall be guilty of a category 2 offence.

• (6) Where a person signs a statement referred to in subsection (4) and in doing so did not honestly believe on reasonable grounds that the statement was true, and the court considers that the making of that statement—

• (a) contributed to the company being unable to pay its debts,

• (b) prevented or impeded the orderly winding up of the company, or

• (c) facilitated the defrauding of the creditors of the company,

the court, on the application of the liquidator or examiner or receiver of the property of, or any creditor or contributor of, the company, may, if it thinks it proper to do so, make the following declaration.

• (7) That declaration is that that signatory shall be personally liable, without limitation of liability, for all or such part as the court may specify of the debts and other liabilities of the company.

417. Extension of time for registration of charges and rectification of register

417. (1) The court may grant the following relief where it is satisfied that the omission to register a charge within the time required by this Part or that the omission or misstatement of any particular with respect to any such charge or in a memorandum of satisfaction—

• (a) was accidental or due to inadvertence or to some other sufficient cause, or

• (b) is not of a nature to prejudice the position of creditors or shareholders of the company,

or that on other grounds it is just and equitable to grant that relief in respect of such an omission or misstatement.

• (2) That relief is to order, on such terms and conditions as seem to the court just and expedient, that the time for registration shall be extended, or, as the case may be, that the omission or misstatement shall be rectified.

• (3) An application for relief under this section may be made on behalf of the company or any other person interested.

418. Copies of instruments creating charges to be kept

418. (1) A company shall keep a copy of every instrument creating any charge in relation to it and requiring registration under this Part, including, in the case of a judgment mortgage, a copy of the relevant judgment mortgage document that was received by the Registrar.

• (2) All such copies kept by the company shall be kept at the same place.

• (3) Sections 215 to 217 (rights of inspection, etc.) apply to those copies.

• (4) If default is made in complying with subsection (1) or (2), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.

419. Registration of charges created prior to commencement of this Part

419. (1) Notwithstanding section 4, sections 99 to 106, 108 to 110 and 112 of the Act of 1963 shall continue to apply to charges (within the meaning of Part IV of that Act) created before the commencement of this Part.

• (2) For the avoidance of doubt, the cases in which those provisions of the Act of 1963 continue to apply include any case where, as respects a charge (within the meaning of Part IV of that Act) created before the commencement of this Part, the time allowed under those provisions for the registration of that charge under that Part IV has not expired on that commencement, and the foregoing reference to the time allowed under those provisions includes the time allowed under those provisions as extended by an order (if such has been made) under section 106 of the Act of 1963.

420. Transitional provisions in relation to priorities of charges

420. (1) In this section “charge to which the special transitional case applies” means a charge referred to in the case set out in section 419(2).

• (2) Subject to subsection (3), the modification by section 412 of any rule of law there referred to (in this section referred to as the “section 412 rule modification”) shall not apply in relation to the issue of the priority of any charge (within the meaning of Part IV of the Act of 1963), created before the commencement of this Part, as against a charge falling within this Part created on or after that commencement.

• (3) The section 412 rule modification shall apply in relation to the issue of the priority of a charge to which the special transitional case applies (as against a charge falling within this Part created on or after commencement of that Part) if the first-mentioned charge has not been registered under Part IV of the Act of 1963 before that commencement.

• (4) For the purposes of the application of the section 412 rule modification to the issue of priority falling within subsection (3), references in section 412 to the date, or time, of receipt of the prescribed particulars shall, in relation to a charge to which the special transitional case applies, be read as references to the date, or time, of delivery to, or receipt by, the Registrar (under and in compliance with Part IV of the Act of 1963, as continued by section 419) of the matters that are required by that Part to be so delivered or received for the purposes of registering the charge thereunder.

• (5) Non-compliance with the requirement in the second sentence of section 102(1) of the Act of 1963 shall be disregarded for the purposes of subsection (4).

421. Netting of Financial Contracts Act 1995 not to affect registration requirements

421. Nothing in section 4(1) of the Netting of Financial Contracts Act 1995 affects—

• (a) the requirement to register a charge under this Part, or

• (b) the consequences of failing to register a charge under this Part.

CHAPTER 3 Provisions as to debentures

422. Liability of trustees for debenture holders

422. (1) Subject to the provisions of this section, the following provision shall be void, namely, any provision contained—

• (a) in a trust deed for securing an issue of debentures, or

• (b) in any contract with the holders of debentures secured by a trust deed,

in so far as it would have the effect of exempting a trustee of it from, or indemnifying him or her against, liability for breach of trust where he or she fails to show the degree of care and diligence required of him or her as trustee, having regard to the provisions of the trust deed conferring on him or her any powers, authorities or discretions.

• (2) Subsection (1) shall not invalidate—

• (a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release, or

• (b) any provision enabling such a release to be given—

• (i) on the agreement to the provision of a majority of not less than three-fourths in value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose, and

• (ii) either with respect to specific acts or omissions or on the trustee dying or ceasing to act.

• (3) Subsection (1) shall not operate—

• (a) to invalidate any provision in force on 1 April 1964 so long as any person then entitled to the benefit of that provision or afterwards given the benefit of it under subsection (4), remains a trustee of the deed in question, or

• (b) to deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him or her while any such provision was in force.

• (4) While any trustee of a trust deed remains entitled to the benefit of a provision saved by subsection (3), the benefit of that provision may be given either—

• (a) to all trustees of the deed present and future, or

• (b) to any named trustee or proposed trustees of the deed,

by a resolution passed by a majority of not less than three-fourths in value of the debenture holders present in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose in accordance with the provisions of the deed, or if the deed makes no provision for summoning meetings, a meeting summoned for the purpose in any manner approved by the court.

423. Perpetual debentures

423. A condition contained in any debentures or in any deed for securing any debentures shall not be invalid by reason only that the debentures are by those means made irredeemable or redeemable only on the happening of a contingency however remote, or on the expiration of a period however long, notwithstanding any rule of law to the contrary.

424. Power to re-issue redeemed debentures

424. (1) Where a company has redeemed any debentures then—

• (a) unless any provision to the contrary, whether express or implied, is contained in the constitution or in any contract entered into by the company, or

• (b) unless the company has, by passing a resolution to that effect or by some other act, shown its intention that the debentures shall be cancelled,

the company shall have power to re-issue the debentures either by re-issuing the same debentures or by issuing other debentures in their place.

• (2) Subject to section 425, on a re-issue of redeemed debentures, the person entitled to the debentures shall have the same priorities as if the debentures had never been redeemed.

• (3) Where a company has deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit whilst the debentures have remained so deposited.

425. Saving of rights of certain mortgagees in case of re-issued debentures

425. Where any debentures which have been redeemed before 1 April 1964 are re-issued on, or subsequently to, that date, the re-issue of the debentures shall not prejudice, and shall be deemed never to have prejudiced, any right or priority which any person would have had under or by virtue of any charge created before that date if section 104 of the Companies (Consolidation) Act 1908 had been enacted in—

• (a) the Act of 1963, or

• (b) in the case of a re-issue occurring on or after the commencement of this section, this Act,

instead of section 95 of the Act of 1963 or section 424, as the case may be.

426. Specific performance of contracts to subscribe for debentures

426. A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance.

CHAPTER 4 Prohibition on Registration of Certain Matters affecting Shareholders or Debentureholders

427. Registration against company of certain matters prohibited

427. (1) Subject to subsection (3), the Registrar has, in relation to any company, no jurisdiction to accept receipt of, or to register in the register—

• (a) an order of any authority (whether judicial or otherwise) affecting a shareholder or debentureholder of the company, or

• (b) any notice of the making thereof.

• (2) Any jurisdiction of an authority (whether judicial or otherwise) subsisting before the commencement of this section to make an order requiring that there be registered in the register, or that there be received by the Registrar—

• (a) an order of that authority affecting a shareholder or debentureholder of a company, or

• (b) a notice of the making of an order referred to in paragraph (a),

shall, after that commencement, cease to be exercisable.

• (3) Nothing in this section affects the jurisdiction of any authority (whether judicial or otherwise) under Chapter 3 of Part 13 or Chapter 2 of Part 14.

PART 8 RECEIVERS

CHAPTER 1 Interpretation

428. Appointment of receiver under powers contained in instrument: construction of such reference

428. In this Part any reference to the appointment of a receiver under powers contained in any instrument includes a reference to an appointment made under powers which, by virtue of any enactment, are implied in and have effect as if contained in an instrument.

CHAPTER 2 Appointment of Receivers

429. Notification that receiver has been appointed

429. (1) Where a receiver of the property of a company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the company or the receiver, being a document on or in which the name of the company appears, shall contain a statement that a receiver has been appointed.

• (2) Where—

• (a) a receiver of the property of a company has been appointed, and

• (b) a winding up of the company is taking place (whether that winding up has commenced before or after that appointment),

every invoice, order for goods or business letter issued by or on behalf of the company or the receiver, being a document on or in which the name of the company appears, shall, in addition to the statement referred to in subsection (1), contain a statement that the company is being wound up.

• (3) Where a receiver of the property of a company has been appointed, then—

• (a) any website of the company, and

• (b) any electronic mail sent to a third party by, or on behalf of, the company,

shall contain a statement that a receiver has been appointed (and such a statement on a website shall be in a prominent and easily accessible place on it).

• (4) Where—

• (a) a receiver of the property of a company has been appointed, and

• (b) a winding up of the company is taking place (whether that winding up has commenced before or after that appointment),

then—

• (i) any website of the company, and

• (ii) any electronic mail sent to a third party by, or on behalf of, the company,

shall, in addition to the statement referred to in subsection (3), contain a statement that the company is being wound up (and such a statement on a website shall be in a prominent and easily accessible place on it).

• (5) In subsections (3) and (4), “third party” means a person other than—

• (a) an officer or employee of the company concerned, or

• (b) a holding company or subsidiary of the company or an officer or employee of that holding company or subsidiary.

• (6) If default is made in complying with subsection (1) or (2)—

• (a) the company and any officer of the company who is in default, and

• (b) any of the following persons who knowingly and intentionally authorises or permits the default, namely, any liquidator of the company and any receiver,

shall be guilty of a category 4 offence.

• (7) If default is made in complying with the requirement under subsection (3) or (4) concerning the company’s website, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.

• (8) If default is made by a company, or any person acting on its behalf, in complying with the requirement under subsection (3) or (4) concerning electronic mail, then—

• (a) in every case, the company and any officer of it who is in default, and

• (b) where the default is made by a person acting on the company’s behalf, that person,

shall be guilty of a category 4 offence.

430. Information to be given when receiver is appointed in certain circumstance

430. (1) Where a receiver of the whole, or substantially the whole, of the property of a company (referred to subsequently in this section and sections 431 and 432 as the “receiver”) is appointed on behalf of the holders of any debentures of the company secured by a floating charge, then subject to the provisions of this section and section 431—

• (a) the receiver shall forthwith send notice to the company of his or her appointment,

• (b) there shall, within 14 days after the date of receipt of the notice, or such longer period as may be allowed by the court or by the receiver, be made out and submitted to the receiver in accordance with section 431 a statement in the prescribed form as to the affairs of the company, and

• (c) the receiver shall, within 2 months after the date of receipt of that statement, send to:

• (i) the Registrar;

• (ii) the court;

• (iii) the company;

• (iv) any trustees for the debenture holders on whose behalf he or she was appointed; and

• (v) so far as he or she is aware of their addresses, all such debenture holders;

a copy of the statement and of any comments he or she sees fit to make on it.

• (2) In subsection (3) “initial period of 6 months”, in relation to the receiver, means the period of 6 months falling after the date of his or her appointment.

• (3) The receiver shall send to the Registrar—

• (a) within 30 days after the expiration of—

• (i) the initial period of 6 months, and

• (ii) each subsequent period of 6 months,

and

• (b) within 30 days after the date on which he or she ceases to act as receiver of the property of the company,

an abstract in the prescribed form showing—

• (i) the assets of the company of which he or she has taken possession since his or her appointment, their estimated value and the proceeds of sale of any such assets since his or her appointment,

• (ii) his or her receipts and payments during that period of 6 months or, where he or she ceases to act as mentioned above, during the period from the end of the period to which the last preceding abstract related up to the date of his or her so ceasing, and

• (iii) the aggregate amounts of his or her receipts and of his or her payments during all preceding periods since his or her appointment.

• (4) Where a receiver ceases to act as receiver of the property of the company, the abstract under subsection (3) shall be accompanied by a statement from the receiver of his or her opinion as to whether or not the company is solvent and the Registrar shall, on receiving the statement, forward a copy of it to the F315[Authority].

• (5) Where a receiver is appointed under the powers contained in any instrument, this section shall have effect with the omission of the references to the court in subsection (1), and in any other case, references to the court shall be taken as referring to the court by which the receiver was appointed.

• (6) Subsection (1) shall not apply in relation to the appointment of a receiver to act with an existing receiver or in place of a receiver dying or ceasing to act, except that, where that subsection applies to a receiver who dies or ceases to act before it has been fully complied with, the references in paragraphs (b) and (c) of it to the receiver shall (subject to subsection (7)) include references to his or her successor and to any continuing receiver. Nothing in this subsection shall be taken as limiting the meaning of the “receiver” where used in or in relation to subsection (3).

• (7) This section and section 431, where the company is being wound up, shall apply notwithstanding that the receiver and the liquidator are the same person, but with any necessary modifications arising from that fact.

• (8) Nothing in subsection (3) shall be taken to prejudice the duty of the receiver to render proper accounts of his or her receipts and payments to the persons to whom, and at the times at which, he or she may be required to do so apart from that subsection.

• (9) Where the Registrar becomes aware of the appointment of a receiver referred to in this section, he or she shall forthwith inform the F315[Authority] of the appointment.

• (10) If the receiver makes default in complying with this section, he or she shall be guilty of a category 4 offence.

431. Contents of statement to be submitted to receiver

431. (1) The statement as to the affairs of a company required by section 430 (the “statement”) to be submitted to the receiver (or his or her successor) shall show as at the date of the receiver’s appointment—

• (a) particulars of the company’s assets, debts and liabilities,

• (b) the names and residences of its creditors,

• (c) the securities held by those creditors respectively,

• (d) the dates when those securities were respectively given, and

• (e) such further or other information as may be prescribed.

• (2) The statement shall be submitted by, and be verified by affidavit of, one or more of the persons who are, at the date of the receiver’s appointment, the directors of the company, or by such of the persons referred to subsequently in this subsection as the receiver (or his or her successor) may require to submit and verify the statement, that is, persons—

• (a) who are or have been officers of the company,

• (b) who have taken part in the formation of the company at any time within one year before the date of the receiver’s appointment,

• (c) who are in the employment of the company or have been in the employment of the company within that year, and are, in the opinion of the receiver, capable of giving the information required,

• (d) who are or have been within that year, officers of or in the employment of a company which is, or within that year was, an officer of the company to which the statement relates.

• (3) Any person making the statement and affidavit shall be allowed, and shall be paid by the receiver (or his or her successor) out of his or her receipts, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the receiver (or his or her successor) may consider reasonable, subject to an appeal to the court.

• (4) Where the receiver is appointed under the powers contained in any instrument, this section shall have effect with the substitution, for references to an affidavit, of references to a statutory declaration; and in any other case, references to the court shall be taken to refer to the court by which the receiver was appointed.

• (5) If any person to whom subsection (2) applies makes default in complying with the requirements of this section, he or she shall, unless he or she can prove to the satisfaction of the court that it was not possible for him or her to comply with the requirements of this section, be guilty of a category 3 offence.

• (6) References in this section to the receiver’s successor include references to a continuing receiver.

432. Consequences of contravention of section 430(1)(b) or 431

432. Where, in contravention of sections 430(1)(b) and 431, a statement of affairs is not submitted to the receiver as required by those provisions, the court may, on the application of the receiver or any creditor of the company, and notwithstanding section 431(5), make whatever order it thinks fit, including an order compelling compliance with sections 430 and 431.

433. Disqualification for appointment as receiver

433. (1) None of the following persons shall be qualified for appointment as receiver of the property of a company:

• (a) an undischarged bankrupt;

• (b) a person who is, or who has, within the period of 12 months before the date of commencement of the receivership been, an officer or employee of the company;

• (c) a parent, spouse, civil partner, brother, sister or child of an officer of the company;

• (d) a person who is a partner of, or in the employment of, an officer or employee of the company;

• (e) a person who is not qualified by virtue of this subsection for appointment as receiver of the property 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;

• (f) a body corporate.

• (2) References in subsection (1) to—

• (a) a child of an officer shall be deemed to include a child of the officer’s civil partner who is ordinarily resident with the officer and the civil partner,

• (b) an officer or employee of the company include a statutory auditor.

• (3) If a receiver of the property of a company becomes disqualified by virtue of this section, he or she shall thereupon vacate his or her office and give notice in writing within 14 days after the date of vacation to—

• (a) the company,

• (b) the Registrar,

• (c) (i) the debenture-holder, if the receiver was appointed by a debenture-holder, or

• (ii) the court, if the receiver was appointed by the court,

that he or she has vacated it by reason of such disqualification.

• (4) Subsection (3) is without prejudice to sections 430(3), 436 and 441.

• (5) Nothing in this section shall require a receiver appointed before 1 August 1991 to vacate the office to which he or she was so appointed.

• (6) Any person who acts as a receiver when disqualified by this section from so doing or who fails to comply with subsection (3), if that subsection applies to him or her, shall be guilty of a category 2 offence.

434. Resignation of receiver

434. (1) A receiver of the property of a company appointed under the powers contained in any instrument may resign, provided he or she has given at least 30 days’ prior notice of the date on which the resignation will take effect to—

• (a) the holders of charges (whether fixed or floating) over all or any part of the property of the company, and

• (b) the company or its liquidator.

• (2) A receiver appointed by the court may resign only with the authority of the court and on such terms and conditions, if any, as may be specified by the court.

• (3) If a person makes default in complying with subsection (1) or (2), he or she shall be guilty of a category 4 offence.

435. Removal of receiver

435. (1) The court may, on cause shown, remove a receiver of the property of a company and appoint another receiver.

• (2) Notice of proceedings in which such removal is sought shall be served on the receiver and on the person who appointed him or her not less than 7 days before the date of the hearing of such proceedings and, in any such proceedings, the receiver and the person who appointed him or her may appear and be heard.

436. Notice to Registrar of appointment of receiver, and of receiver ceasing to act

436. (1) If any person obtains an order for the appointment of a receiver of the property of a company or appoints such a receiver under any powers contained in any instrument, he or she—

• (a) shall cause to be published in Iris Oifigiúil, and

• (b) shall deliver to the Registrar,

within 7 days after the date of the order or of the appointment, a notice in the prescribed form.

• (2) When any person appointed receiver of the property of a company ceases to act as such receiver, he or she shall, on so ceasing, deliver to the Registrar a notice in the prescribed form.

• (3) If a person makes default in complying with subsection (1) or (2), he or she shall be guilty of a category 4 offence.

CHAPTER 3 Powers and Duties of Receivers

437. Powers of receiver

437. (1) Subject to the provisions of this section, a receiver of the property of a company has power to do, in the State and elsewhere, all things necessary or convenient to be done for or in connection with, or as incidental to, the attainment of the objectives for which the receiver was appointed.

• (2) Without limiting the generality of subsection (1) but subject to subsection (4), a receiver of the property of a company has (in addition to any powers conferred by the order or instrument referred to in subsection (4) or by any other law) power to do one or more of the following things for the purpose of attaining the objectives for which he or she was appointed.

• (3) Those things are:

• (a) to enter into possession and take control of property of the company in accordance with the terms of the order or instrument referred to in subsection (4);

• (b) to lease, let on hire or dispose of property of the company;

• (c) to grant options over property of the company on such conditions as the receiver thinks fit;

• (d) to borrow money on the security of property of the company;

• (e) to insure property of the company;

• (f) to repair, renew or enlarge property of the company;

• (g) to convert property of the company into money;

• (h) to carry on any business of the company;

• (i) to take on lease or on hire, or to acquire, any property necessary or convenient in connection with the carrying on of a business of the company;

• (j) to execute any document, bring or defend any proceedings or do any other act or thing in the name of and on behalf of the company;

• (k) to draw, accept, make and endorse a bill of exchange or promissory note;

• (l) to use a seal of the company;

• (m) to engage or discharge employees on behalf of the company;

• (n) to appoint a solicitor, accountant or other professionally qualified person to assist the receiver;

• (o) to appoint an agent to do any business that the receiver is unable to do, or that it is unreasonable to expect the receiver to do, in person;

• (p) where a debt or liability is owed to the company, to prove the debt or liability in a bankruptcy, insolvency or winding up and, in connection therewith, to receive dividends and to assent to a proposal for a composition or a scheme of arrangement;

• (q) if the receiver was appointed under an instrument that created a charge on uncalled share capital of the company—

• (i) to make a call in the name of the company for the payment of money unpaid on the company’s shares, or

• (ii) on giving a proper indemnity to a liquidator of the company, to make a call in the liquidator’s name for the payment of money unpaid on the company’s shares;

• (r) to enforce payment of any call that is due and unpaid, whether the calls were made by the receiver or otherwise;

• (s) to make or defend an application for the winding up of the company;

• (t) to refer to arbitration or mediation, any question affecting the company.

• (4) Subsections (1) and (2) are subject to any provision of the order of the court by which, or the instrument under which, the receiver was appointed, being a provision that limits the receiver’s powers in any way.

• (5) The conferral on a receiver, by this section, of powers in relation to property of a company does not affect any rights in relation to that property of any other person other than the company.

• (6) In subsections (3) and (5) a reference, in relation to a receiver, to property of a company is a reference to the property of the company in relation to which the receiver was appointed; this subsection is in addition to section 2(9) providing for construction of references to a receiver of property of a company.

438. Power of receiver and certain others to apply to court for directions and receiver’s liability on contracts

438. (1) Where a receiver of the property of a company is appointed under the powers contained in any instrument, any of the following persons may apply to the court for directions in relation to any matter in connection with the performance or otherwise, by the receiver, of his or her functions, that is to say:

• (a) (i) the receiver;

• (ii) an officer of the company;

• (iii) a member of the company;

• (iv) employees of the company comprising at least half in number of the persons employed in a permanent capacity by the company;

• (v) a creditor of the company;

and

• (b) (i) a liquidator;

• (ii) a contributory;

and, on any such application, the court may give such directions, or make such order declaring the rights of persons before the court or otherwise, as the court thinks just.

• (2) An application to the court under subsection (1), except an application under that subsection by the receiver, shall be supported by such evidence that the applicant is being unfairly prejudiced by any actual or proposed act or omission of the receiver as the court may require.

• (3) For the purposes of subsection (1), “creditor” means one or more creditors to whom the company is indebted by more, in aggregate, than €13,000.

• (4) A receiver of the property of a company shall be personally liable on any contract entered into by him or her in the performance of his or her functions (whether such contract is entered into by the receiver in the name of such company or in his or her own name as receiver or otherwise) unless the contract provides that he or she is not to be personally liable on such contract.

• (5) In those circumstances, the receiver shall be entitled in respect of that liability to indemnity out of the assets of the company; but nothing in subsection (4) or this subsection shall be taken as—

• (a) limiting any right to indemnity which the receiver would have apart from this subsection, or

• (b) limiting the receiver’s liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.

• (6) Subsection (7) applies where a receiver of the property of a company has been appointed or purported to be appointed and it is subsequently discovered that the charge or purported charge in respect of which he or she was so appointed or purported to be appointed was not effective as a charge on such property or on some part of such property.

• (7) Where this subsection applies, the court may, if it thinks fit, on the application of the receiver referred to in subsection (6), order that he or she be relieved wholly, or to such extent as the court shall think fit, from personal liability in respect of anything done or omitted by him or her in relation to any property purporting to be comprised in the charge by virtue of which he or she was appointed or purported to be appointed which, if such property had been effectively included in such charge or purported charge, would have been properly done or omitted by him or her and he or she shall be relieved from personal liability accordingly.

• (8) In the event of such an order being made, the person by whom such receiver was appointed or purported to be appointed shall be personally liable for everything for which, but for such order, such receiver would have been liable.

439. Duty of receiver selling property to get best price reasonably obtainable, etc.

439. (1) A receiver of the property of a company shall, in selling property of the company, exercise all reasonable care to obtain the best price reasonably obtainable for the property as at the time of sale.

• (2) Notwithstanding the provisions of any instrument and, in the case of paragraph (b), section 438(4) and (5)—

• (a) it shall not be a defence to any action or proceeding brought against a receiver in respect of a breach of his or her duty under subsection (1) that the receiver was acting as the agent of the company or under a power of attorney given by the company, and

• (b) a receiver shall not be entitled to be compensated or indemnified by the company for any liability he or she may incur as a result of a breach of his or her duty under that subsection.

• (3) A receiver shall not sell by private contract a non-cash asset of the requisite value to a person who is, or who, within 3 years prior to the date of appointment of the receiver, has been, an officer of the company unless the receiver has given at least 14 days’ notice of his or her intention to do so to all creditors of the company who are known to the receiver or who have been intimated to the receiver.

• (4) In this section—

“non-cash asset” and “requisite value” have the meanings given to them by section 238;

“officer” includes a person connected (within the meaning of section 220) with—

• (a) a director of the company,

• (b) a shadow director of it, or

• (c) a de facto director of it.

440. Preferential payments when receiver is appointed under floating charge

440. (1) Where either—

• (a) a receiver of the property of a company is appointed on behalf of the holders of any debentures of the company secured by F320[any charge created as a floating charge by the company], or

• (b) possession is taken by or on behalf of those debenture holders of any property comprised in or subject to the charge,

then, if the company is not at the time in the course of being wound up, the debts which in every winding up are, under the provisions of Part 11 relating to preferential payments, to be paid in priority to all other debts, shall be paid out of any assets coming to the hands of the receiver or other person taking possession as mentioned above in priority to any claim for principal or interest in respect of the debentures.

• (2) In the application of the foregoing provisions, section 621(2)(c) shall be read as if the provision for payment of accrued holiday remuneration becoming payable on the termination of employment before or by the effect of the winding-up order or resolution were a provision for payment of such remuneration becoming payable on the termination of employment before or by the effect of the appointment of the receiver or possession being taken as mentioned above.

• (3) For the purposes of this section, the periods of time mentioned in the foregoing provisions of Part 11 shall be reckoned as beginning after the date of the appointment of the receiver or of possession being taken as mentioned above, as the case may be.

• (4) Any payments made under this section shall be recouped so far as may be out of the assets of the company available for payment of general creditors.

441. Delivery to Registrar of accounts of receivers

441. (1) In this section “initial period of 6 months”, in relation to a receiver, means the period of 6 months falling after the date of his or her appointment.

• (2) Except where section 430(3) applies, a receiver of the property of a company shall send to the Registrar—

• (a) within 30 days after the expiration of—

• (i) the initial period of 6 months, and

• (ii) each subsequent period of 6 months,

and

• (b) within 30 days after the date on which he or she ceases to act as receiver of the property of the company,

an abstract in the prescribed form showing—

• (i) the assets of the company of which he or she has taken possession since his or her appointment, their estimated value and the proceeds of sale of any such assets since his or her appointment,

• (ii) his or her receipts and payments during that period of 6 months or, where he or she ceases to act as mentioned above, during the period from the end of the period to which the last preceding abstract related up to the date of his or her so ceasing, and

• (iii) the aggregate amounts of his or her receipts and of his or her payments during all preceding periods since his or her appointment.

• (3) A receiver who makes default in complying with subsection (2) shall be guilty of a category 4 offence.

CHAPTER 4 Regulation of Receivers and Enforcement of their Duties

442. Enforcement of duty of receivers to make returns

442. (1) Subsection (2) applies if a receiver of the property of a company—

• (a) having made default in filing, delivering or making any return, account or other document, or in giving any notice, which a receiver is by law required to file, deliver, make or give, fails to make good the default within 14 days after the date of service on him or her of a notice requiring him or her to do so, or

• (b) having been appointed under the powers contained in any instrument, has, after being required at any time by the liquidator of the company to do so, failed to render proper accounts of his or her receipts and payments and to vouch those receipts and payments and to pay over to the liquidator the amount properly payable to him or her.

• (2) Where this subsection applies, the court may, on an application made for the purpose, make an order directing the receiver to make good the default within such time as may be specified in the order.

• (3) In the case of any such default as is mentioned in subsection (1)(a), any member or creditor of the company or the Registrar may make an application for the purposes of this section.

• (4) In the case of any such default as is mentioned in subsection (1)(b), the liquidator of the company is alone entitled to make an application for the purposes of this section.

• (5) In either of the foregoing cases, the order under this section may provide that all costs of and incidental to the application shall be borne by the receiver.

• (6) Nothing in this section shall be taken to prejudice the operation of any enactments imposing penalties on receivers in respect of any such default as is mentioned in subsection (1).

443. Power of court to order the return of assets improperly transferred

443. (1) Where a receiver of the property of a company is appointed and, on the application of the receiver or any creditor or member of the company, it can be shown to the satisfaction of the court that—

• (a) any property of the company of any kind whatsoever was disposed of either by way of conveyance, transfer, mortgage, security, loan, or in any way whatsoever whether by act or omission, direct or indirect, and

• (b) the effect of such disposal was to perpetrate a fraud on the company, its creditors or members,

the court may, if it deems it just and equitable to do so, make the following order.

• (2) That order of the court is one requiring any person who appears to have the use, control or possession of such property or the proceeds of the sale or development of it to deliver it or pay a sum in respect of it to the receiver on such terms or conditions as the court sees fit.

• (3) Subsection (1) shall not apply to any conveyance, mortgage, delivery of goods, payment, execution or other act relating to property made or done by or against a company to which section 604 applies.

• (4) In deciding whether it is just and equitable to make an order under this section, the court shall have regard to the rights of persons who have bona fide and for value acquired an interest in the property the subject of the application.

443A. F322[Remuneration of receivers

443A. Subject to section 444, a receiver has an entitlement to remuneration upon the terms agreed, fixed or otherwise set in the manner specified in the instrument under which he or she is appointed and the terms upon which the receiver has, in accordance with that instrument, such an entitlement may be expressed to be—

• (a) by way of a relevant percentage,

• (b) by reference to time expended in the conduct of the receivership, or

• (c) otherwise by reference to any method or thing.]

444. Power of court to fix remuneration of receiver

444. (1) Where a person has, under the powers contained in any instrument, been appointed as receiver of the property of a company the court may, on an application made by the liquidator of a company or by any creditor or member of the company, make the following order.

• (2) That order of the court is one fixing the amount to be paid by way of remuneration to that receiver and such an order may be made notwithstanding that his or her remuneration has been fixed by or under that instrument.

• F323[(2A) In fixing the amount to be paid by way of remuneration to a receiver under subsection (2), the court shall take the following into account:

• (a) the time properly required to be given by the person as receiver and by his or her assistants in attending to the company’s affairs;

• (b) the complexity (or otherwise) of the case;

• (c) any respects in which, in connection with the company’s affairs, there falls on the receiver any responsibility of an exceptional kind or degree;

• (d) the effectiveness with which the receiver appears to be carrying out, or to have carried out, his or her duties;

• (e) the value and nature of the property with which the receiver has to deal.]

• (3) Subject to subsection (4), the power of the court under subsection (1) shall, where no previous order has been made in relation to the matter concerned under that subsection—