Companies Act 2014

• (a) finds that a member of that body who is or has acted as a process adviser in respect of an eligible company under this Part has not maintained appropriate records as required by this Part,

• (b) has reasonable grounds for believing that such a member has committed a category 1 or 2 offence while so acting,

the professional body shall report the matter, giving details of the finding or, as the case may be, of the alleged offence, to the F423[Authority] forthwith.

• (2) If a professional body fails to comply with this section, it, and any officer of the body to whom the failure is attributable, shall be guilty of a category 3 offence.]

F424[CHAPTER 9

Enforcement

558ZP. Offence of acting as process adviser when unqualified

558ZP. (1) A person may not act as a process adviser under this Part in respect of an eligible company unless the person is qualified under section 633 for appointment as a liquidator of the eligible company.

• (2) A person who contravenes subsection (1) shall be guilty of a category 2 offence.]

558ZQ. F425[Offence where director fails to disclose information or misleads process adviser

558ZQ. (1) A director of an eligible company who intentionally—

• (a) fails to disclose to the process adviser appointed in respect of the eligible company any relevant information—

• (i) that is available to him or her, and

• (ii) that he or she has been required to produce by the process adviser,

• (b) provides any false or misleading information to the process adviser in respect of the eligible company, or

• (c) fails to disclose to the process adviser in respect of the eligible company any information available to him or her that the director knows, or ought to know, is relevant information,

shall be guilty of a category 2 offence.

• (2) In subsection (1), "relevant information" means information which is material to the exercise by the process adviser of his or her functions under this Part.]

558ZR. F426[Prosecution of officers and members of company

558ZR. (1) This section applies where a process adviser has been appointed in relation to an eligible company.

• (2) If it appears to the process adviser, at any time during the rescue period, that any past or present officer, or any member, of the eligible company has been guilty of any offence in relation to the company, the process adviser shall forthwith report the matter to the Director of Public Prosecutions.

• (3) Where the process adviser reports a matter under subsection (2) to the Director of Public Prosecutions, the process adviser shall—

• (a) provide to the Director of Public Prosecutions such information, relating to the matter in question, as he or she may require, and

• F427[(b) give to him or her such access to, and facilities for inspecting and taking copies of, such documents, being documents in the possession or under the control of the process adviser and relating to the matter in question, as he or she may require.]

• F427[(4) Where a foregoing report is made by the process adviser, the process adviser shall also report the matter to the Authority forthwith.].

• F427[(5) Where a matter is reported by the process adviser under subsection (4) to the Authority, the process adviser shall—

• (a) provide to the Authority such information relating to the matter in question as it may require, and

• (b) give to the Authority such access to, and facilities for inspecting and taking copies of, such documents, being documents in the possession or under the control of the process adviser and relating to the matter in question, as it may require.]

• (6) If, where any matter is reported under subsection (2) or (4) to—

• (a) the Director of Public Prosecutions, or

• (b) the F427[Authority],

and the Director of Public Prosecutions or, as the case may be, the F427[Authority] considers that the case is one in which a prosecution ought to be instituted and institutes proceedings accordingly, it shall be the duty of each of the persons mentioned in subsection (7) to give all assistance in connection with the prosecution which he or she is reasonably able to give.

• (7) The persons referred to in subsection (6) are the process adviser and—

• (a) every officer (past or present) of the eligible company, and

• (b) every agent (past or present) of the eligible company,

other than the defendant in the proceedings.

• (8) For the purposes of subsection (7), "agent", in relation to the eligible company, includes—

• (a) the bankers and solicitors of the eligible company, and

• (b) any persons employed by the eligible company as auditors, accountants, book-keepers or taxation advisers, or other persons employed by it in a professional, consultancy or similar capacity, whether those persons are (or were) or are not (or were not) officers of the eligible company.

• (9) If any person fails or neglects to give assistance in the manner required by subsection (6), the court may, on the application of the Director of Public Prosecutions or, as the case may be, the F427[Authority], direct that person to comply with the requirements of that subsection.

• (10) Where any such application is made in relation to a process adviser, the court may, unless it appears that the failure or neglect to comply was due to the process adviser not having in his or her hands sufficient assets of the eligible company to enable him or her so to do, direct that the costs of the application shall be borne by the process adviser personally.]

F428[CHAPTER 10

Powers of process adviser

558ZS. Powers of process adviser

558ZS. (1) Any provision of this Act relating to the rights and powers of a statutory auditor of an eligible company and the supplying of information to and co-operation with such auditor shall, with the necessary modifications, apply to a process adviser appointed in respect of the company.

• (2) Notwithstanding any provision of this Act relating to notice of general meetings, a process adviser shall have power to convene, set the agenda for, and preside at meetings of the board of directors and general meetings of the eligible company in respect of which he or she is appointed and to propose motions or resolutions and to give reports to such meetings.

• (3) A process adviser shall be entitled to reasonable notice of, to attend and be heard at, all meetings of the board of directors of the eligible company and all general meetings of the company in respect of which he or she is appointed.

• (4) For the purpose of subsection (3) "reasonable notice" shall be deemed to include a description of the business to be transacted at any such meeting.

• (5) A process adviser has the power referred to in subsection (6) where he or she becomes aware of any actual or proposed act, omission, course of conduct, decision or contract by or on behalf of—

• (a) the eligible company in respect of which he or she has been appointed,

• (b) the eligible company’s officers, employees, members or creditors, or

• (c) any other person,

in relation to the income, assets or liabilities of the eligible company which, in the process adviser’s opinion, is or is likely to be to the detriment of the company, or any interested party.

• (6) That power of the process adviser is to take whatever steps are necessary, subject to the right of parties acquiring an interest in good faith and for value in such income, assets or liabilities, to halt, prevent or rectify the effects of such act, omission, course of conduct, decision or contract.]

558ZT. F429[Production of documents and evidence

558ZT. (1) It shall be the duty of the officers and agents of an eligible company in respect of which a process adviser has been appointed or of a related company to—

• (a) produce to the process adviser all books and documents of, or relating to, any such company which are in their custody or power,

• (b) attend before the process adviser when required by the process adviser so to do, and

• (c) otherwise give to the process adviser all assistance in connection with the process adviser’s functions which they are reasonably able to give.

• (2) If the process adviser considers that a person, other than an officer or agent of any foregoing company, is or may be in possession of any information concerning the company’s affairs, the process adviser may require that person to—

• (a) produce to the process adviser any books or documents in his or her custody or power relating to the company,

• (b) attend before the process adviser, and

• (c) otherwise give to the process adviser all assistance in connection with the process adviser’s 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 process adviser has reasonable grounds for believing that a director of any foregoing company 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 financial statements of any company for any financial year as required by this Act, 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 director, constituted misconduct (whether fraudulent or not) towards that company or its members,

the process adviser may require the director to produce to the process adviser all documents in the director’s possession, or under his or her control, relating to that bank account and it shall be the duty of the director to comply with the requirement.

• (4) In subsection (3)—

"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;

"director" means—

• (a) any present or past director (including any present or past shadow director), and

• (b) any person connected, within the meaning of section 220, with such a director.

• (5) A process adviser may examine on oath, either by word of mouth or on written interrogatories, the officers and agents of an eligible company or other person as is mentioned in subsection (1) or (2) in relation to that company’s affairs and may—

• (a) administer an oath accordingly, or

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

• (6) If any officer or agent of a foregoing company or other such person—

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

• (b) refuses to attend before the process adviser when requested by the process adviser to do so, or

• (c) refuses to answer any question which is put to him or her by the process adviser with respect to the affairs of the company,

the process adviser may provide a certificate under his or her hand to the relevant court stating that such a refusal has occurred.

• (7) On such a certificate being provided to it, the relevant court may enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, agent or other person to whom the certificate relates or any statement which may be offered in defence, make any order or direction it thinks fit.

• (8) Without prejudice to the generality of subsection (7), the relevant court may, after a hearing under that subsection, make a direction—

• (a) to the person concerned to attend or re-attend before the process adviser or produce particular books or documents or answer particular questions put to him or her by the process adviser, or

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

• (9) Section 795 shall apply for the purposes of this section as it applies for the purposes of Part 13 and, accordingly, for the purpose of this section, references in section 795 to Part 13, or relevant provisions of that Part, shall be read as references to this section.

• (10) In this section—

• (a) any reference to officers or to agents includes a reference to past, as well as present, officers or agents, as the case may be;

• (b) "agents", in relation to a company, includes—

• (i) the bankers and solicitors of the company, and

• (ii) any persons employed by the company as auditors, accountants, book-keepers or taxation advisers, or other persons employed by it in a professional, consultancy or similar capacity, whether those persons are (or were) or are not (or were not) officers of the company.]

558ZU. F430[No lien over eligible company’s books, records, etc.

558ZU. (1) Without prejudice to subsections (2) and (3), where a process adviser is appointed in respect of an eligible company by virtue of section 558E(2), no person shall be entitled as against the process adviser to—

• (a) withhold possession of—

• (i) any deed, instrument or other document belonging to the eligible company, or

• (ii) any accounting records, receipts, bills, invoices, or other papers of a like nature relating to the accounts or trade, dealings or business of the eligible company,

or

• (b) claim any lien on any document or paper referred to in paragraph (a).

• (2) Where a mortgage, charge or pledge has been created by the deposit of any such document or paper with a person, the production of the document or paper to the process adviser by the person shall not operate to prejudice the person’s rights under the mortgage, charge or pledge (other than any right to possession of the document or paper).

• (3) Where by virtue of this section a process adviser has possession of—

• (a) any document or papers of a receiver, or

• (b) any documents or papers that a receiver is entitled to examine,

the process adviser shall, unless the relevant court otherwise orders, make the document or papers available for inspection by the receiver at all reasonable times.]

558ZV. F431[Power to deal with charged property etc.

558ZV. (1) Where, on an application by the process adviser appointed in respect of an eligible company, the relevant court is satisfied that—

• (a) the disposal (with or without other assets) of any property of the eligible company which is subject to a security which, as created, was a floating charge, or

• (b) the exercise by the process adviser of his or her powers in relation to such property,

would be likely to facilitate the survival of the whole or any part of the eligible company as a going concern, the relevant court may by order authorise the process adviser to dispose of the property, or exercise his or her powers in relation to it, as the case may be, as if it were not subject to the security.

• (2) Where, on an application by the process adviser appointed in respect of an eligible company, the relevant court is satisfied that the disposal (with or without other assets) of—

• (a) any property of the eligible company subject to a security other than a security to which subsection (1) applies, or

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

would be likely to facilitate the survival of the whole or any part of the eligible company as a going concern, the relevant court may by order authorise the process adviser to dispose of the property as if it were not subject to the security or to dispose of the goods as if all rights of the owner under the hire-purchase agreement were vested in the company.

• (3) Where property is disposed of under subsection (1), the holder of the security shall have the same priority in respect of any property of the eligible company directly or indirectly representing the property disposed of as he or she would have had in respect of the property subject to the security.

• (4) An order under subsection (2) shall include a condition that—

• (a) the net proceeds of the disposal of the property or goods concerned, and

• (b) where those proceeds are less than such amount as may be determined by the relevant court to be the net amount which would be realised on a sale of the property or goods concerned 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.

• (5) Where a condition imposed in pursuance of subsection (4) relates to 2 or more securities, that condition operates to require 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.

• (6) A certified copy of an order under subsection (1) or (2) in relation to a security shall, within 7 days after the date of the making of the order, be delivered by the process adviser to the Registrar.

• (7) If the process adviser, without reasonable excuse, fails to comply with subsection (6), he or she shall be guilty of a category 4 offence.

• (8) References in this section to a hire-purchase agreement include references to—

• (a) a conditional sale agreement;

• (b) a retention of title agreement; and

• (c) an agreement for the bailment of goods which is capable of subsisting for more than 3 months.]

558ZW. F432[Resignation of process adviser

558ZW. (1) The process adviser appointed in respect of an eligible company may, by a notice in writing that complies with subsection (3) given to the company and stating his or her intention to do so, resign as process adviser.

• (2) The resignation shall take effect on the date on which the notice is so given or on such later date as may be specified in the notice.

• (3) A notice under subsection (1) shall contain either—

• (a) a statement to the effect that there are no circumstances connected with the resignation to which it relates that the process adviser concerned considers should be brought to the notice of the members or creditors of the eligible company, or

• (b) a statement of any such circumstances as are mentioned in paragraph (a).

• (4) Where a notice under subsection (1) is given to an eligible company—

• (a) the process adviser concerned shall, within 7 days after the date of such service, send a copy of the notice to the Registrar and the office of the relevant court, and

• (b) subject to subsection (5), the eligible company shall, if the notice contains a statement referred to in subsection (3)(b), not later than 14 days after the date of such service, send a copy of the notice to every creditor and member in accordance with subsection (5).

• (5) Copies of a notice given to an eligible company under subsection (1) need not be given to the members and creditors of the company if, on the application of the company concerned or any other person who claims to be aggrieved, the relevant court is satisfied that the notice contains material which has been included to secure needless publicity for a defamatory matter and orders that that thing need not be done.

• (6) The relevant court may order the eligible company’s costs on an application such as is referred to in subsection (5) to be paid in whole or in part by the process adviser concerned notwithstanding that he or she is not a party to the application.

• (7) A person who fails to comply with this section shall be guilty of a category 3 offence.]

558ZX. F434[General provisions as to process advisers - resignation, filling of vacancy, etc.

558ZX. (1) Where the person appointed as the process adviser of an eligible company—

• (a) dies,

• (b) becomes incapable (whether through ill-health or otherwise) of performing the functions of a process adviser in relation to the eligible company,

• (c) resigns as process adviser, or

• (d) is no longer qualified to perform the functions conferred on a process adviser by this Act,

the directors of the eligible company shall, as soon as practicable after becoming aware of the fact, consider whether to pass a resolution appointing another person as process adviser.

• (2) Where the directors of the eligible company pass a resolution appointing a new process adviser, they shall, within 48 hours of the appointment—

• (a) deliver notice of the appointment to—

• (i) the Registrar, and

• (ii) the office of the relevant court,

and

• (b) give notice of the appointment to the persons mentioned in subsection (3).

• (3) The persons are—

• (a) employees of the eligible company,

• (b) members of the eligible company,

• (c) creditors of the eligible company,

• (d) the Revenue Commissioners, and

• (e) such other persons as may be prescribed.

• (4) A process adviser shall be described by the style of "the process adviser" of the particular eligible company in respect of which he or she is appointed and not by his or her name.

• (5) In carrying out the functions conferred on a process adviser under this Part, a process adviser shall be deemed to be an officer of the court.

• (6) The acts of a process adviser shall be valid notwithstanding any defects that may afterwards be discovered in his or her appointment or qualification.

• (7) A process adviser 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 process adviser in the name of the eligible company concerned or in his or her own name as process adviser or otherwise) unless the contract provides that he or she is not to be personally liable on such contract.

• (8) The process adviser shall, in respect of that personal liability, be entitled to indemnity out of the assets of the eligible company concerned.

• (9) Nothing in subsection (7) or (8) shall be taken as limiting any right to indemnity which the process adviser would have apart from either subsection, or as limiting the process adviser’s liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.]

F437[CHAPTER 11

Process adviser: remuneration, costs and expenses

558ZY. Process adviser: remuneration, costs and expenses

558ZY. (1) The relevant court may from time to time make such orders as it thinks proper for payment of the remuneration and costs of, and reasonable expenses properly incurred by, a process adviser.

• (2) Unless the relevant court otherwise orders, the remuneration, costs and expenses of a process adviser shall be paid and the process adviser shall be entitled to be indemnified in respect thereof out of the revenue of the business of the eligible company to which he or she has been appointed, or the proceeds of realisation of the assets (including investments).

• (3) Subject to subsection (4), the functions of a process adviser may be performed by him or her with the assistance of persons appointed or employed by him or her for that purpose.

• (4) A process adviser shall, in so far as is reasonably possible, make use of the services of the staff and facilities of the eligible company to which the process adviser has been appointed to assist the process adviser in the performance of his or her functions.

• F438[(4A) Where a process adviser does not make use of the services of the staff and facilities of the eligible company in accordance with subsection (4), the relevant court may request a written report from the process adviser stating the reasons for not doing so.]

• (5) In considering any matter relating to the costs, expenses and remuneration of a process adviser the relevant court shall have particular regard to F439[subsection (4) and any written report provided to it in accordance with subsection (4A)].]

558ZZ. F440[Application to relevant court for review of remuneration etc. of process adviser

558ZZ. (1) This section applies where notice of approval of a rescue plan for an eligible company is filed with the office of the relevant court under section 558Z(6).

• (2) Any creditor or member of the eligible company may apply to the relevant court, within 21 days after the date on which the notice of approval is filed, to review the remuneration, costs and expenses, claimed by a process adviser under this Part.

• (3) Notice of objection shall be sent in the prescribed form to—

• (a) the process adviser, and

• (b) the office of the relevant court.

• (4) Where no application is filed under subsection (2) within 21 days of the notice of approval under section 558ZB(1), the remuneration, costs and expenses of the process adviser shall be deemed to be fixed in the amount set out in the process adviser’s report.

• (5) An application under subsection (2) shall be heard after the hearing of any objection under section 558ZD.

• (6) On the making of an application under subsection (2), the relevant court may, as it thinks fit—

• (a) confirm the amount stated in the process adviser’s report under section 558ZA, or

• (b) subject to any order made by virtue of section 558ZY(1), alter that amount and make any consequential modifications to the rescue plan.

• (7) If, on an application under subsection (2)—

• (a) the relevant court does not reduce the process adviser’s remuneration, costs and expenses, the applicant shall bear the costs, fees and expenses of the application, or

• (b) the relevant court does reduce the process adviser’s remuneration, costs and expenses, the court may make such order as it deems fit as to the costs, fees and expenses of the application.

• (8) In deciding on the merits of an application under subsection (2), the relevant court shall have regard to all the circumstances, including in particular—

• (a) whether the process adviser had proper regard to section 558ZY(4),

• (b) the time properly required to be given by the process adviser and by his or her assistants during the rescue period,

• (c) the complexity (or otherwise) of the case,

• (d) the effectiveness with which the process adviser appears to have carried out his or her duties, and

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

• (9) Where the relevant court dismisses an application under subsection (2) or approves a modified rescue plan following an alteration under subsection (6)(b), the rescue plan shall be binding on all the members or class or classes of members, as the case may be, affected by the rescue plan and also on the eligible company.

• (10) Where the relevant court dismisses an application under subsection (2) or approves a modified rescue plan following an alteration under subsection (6)(b), the rescue plan shall, notwithstanding any other enactment, be binding on all the creditors or the class or classes of creditors, as the case may be, affected by the rescue plan in respect of any claim or claims against the eligible company and any person other than the company who, under any enactment, rule of law or otherwise, is liable for all or any part of the debts of the company.]

558ZAA. F441[Incurring of certain liabilities by process adviser

558ZAA. (1) Any liabilities incurred by an eligible company during the rescue period which are specified in subsection (2) shall be treated as expenses properly incurred, for the purpose of section 558ZAB, by the process adviser.

• (2) The liabilities referred to in subsection (1) are those certified in writing by the process adviser, at the time they are incurred, to have been incurred in circumstances where, in the opinion of the process adviser, the survival of the eligible company as a going concern during the rescue period would otherwise be seriously prejudiced.]

558ZAB. F442[Priority

558ZAB. (1) The remuneration, costs and expenses of a process adviser which have been confirmed under section 558ZZ(4) or (6) (other than expenses referred to in subsection (2)) shall be paid in full and shall be paid before any other claim, secured or unsecured, under any rescue plan or in any receivership or winding up of the eligible company to which he or she has been appointed.

• (2) Liabilities incurred by the eligible company to which a process adviser has been appointed that, by virtue of section 558ZAA, are treated as expenses properly incurred by the process adviser shall be paid in full and shall be paid before any other claim (including a claim secured by a floating charge), but after any claim secured by a mortgage, charge, lien or other encumbrance of a fixed nature or a pledge, under any rescue plan or in any receivership or winding up of the company.

• (3) In subsections (1) and (2), references to a claim shall be deemed to include references to any payment in a winding up of the eligible company in respect of the costs, charges and expenses of that winding up (including the remuneration of any liquidator).]

F443[CHAPTER 12

General

558ZAC. Effect on certain sections where application to relevant court

558ZAC. (1) The time limits specified in the provisions mentioned in subsection (2) are suspended for the period during which any proceedings under this Part are being considered by the relevant court.

• (2) The provisions referred to in subsection (1) are—

• (a) section 558L(2),

• (b) section 558T(4),

• (c) section 558ZA(2), and

• (d) section 558ZA(4).]

558ZAD. F444[Power to apply to relevant court for determination of questions or concerning exercise of powers

558ZAD. (1) Each of the following:

• (a) the process adviser appointed in respect of an eligible company;

• (b) the directors of an eligible company;

• F445[(c) the Authority,]

may apply to the relevant court to determine any question arising during the rescue period (including any question in relation to any exercise or proposed exercise of any of the powers of the process adviser).

• (2) The relevant court, if satisfied that the determination of the question will be just and equitable, may accede wholly or partially to such an application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just.]

558ZAE. F446[Hearing of proceedings other than in public

558ZAE. Without prejudice to the relevant court’s own discretion, the whole or part of any proceedings under this Part may be heard otherwise than in public if the relevant court, in the interests of justice, considers that the interests of the eligible company concerned or of its creditors as a whole so require.]

558ZAF. F447[High Court’s power to remit proceedings to Circuit Court

558ZAF. (1) This section applies where the process adviser determines under section 558H that any proceedings under this Part relating to an eligible company shall be brought in the High Court.

• (2) In any proceedings under this Part relating to the eligible company, the High Court may, where it considers that it would be reasonable for the proceedings to be dealt with in the Circuit Court, remit the proceedings to the Circuit Court.

• (3) Where the High Court is minded to remit proceedings under subsection (2), it may elect to deal with the application immediately before it where it considers that it would be more efficient for it to do so.

• (4) Notwithstanding subsection (3), the High Court may take into account whether it was reasonable for any proceedings under this Part to be brought in that court in making a costs order in relation to the proceedings concerned.

• (5) In deciding for the purposes of subsection (2) whether it would be reasonable for proceedings to be brought in the Circuit Court, the High Court shall have regard to all the circumstances, including in particular the need to minimise costs and promote efficiency.]

558ZAG. F448[Representation of bodies corporate at meetings held under this Part

558ZAG. For the avoidance of doubt, section 185 applies to any meeting of an eligible company held during the rescue period.]

558ZAH. F449[Retention of records

558ZAH. Where a process adviser is appointed in respect of an eligible company, the process adviser shall retain records in such form or manner as may be prescribed for a period of not less than 6 years after the completion of the activity to which the record relates.]

558ZAI. F450[Service of notices

558ZAI. (1) This section applies where the process adviser is required or authorised by any provision of this Part to give a person a notice or other document.

• (2) Where the person has provided the process adviser with an email address under section 558I, notice shall be given by electronic means to that email address.

• (3) Where—

• (a) the person has not provided the process adviser with an email address under section 558I, or

• (b) the process adviser gives notice by electronic means to an email address provided by the person under that section but receives in response a failed delivery notification,

notice shall be given in accordance with subsection (4).

• (4) Notice is given in accordance with this subsection if it is sent by post in a prepaid letter to—

• (a) in the case of an individual—

• (i) the address at which the individual ordinarily resides, or

• (ii) any other address provided by the individual for the purposes of this section,

• (b) in the case of a company, its registered office, or

• (c) in the case of any other body corporate or unincorporated body, its principal office or place of business.]

558ZAJ. F451[Regulations to remove difficulties

558ZAJ. (1) If, in any respect, any difficulty arises in bringing any provision of this Part into operation or in relation to the operation of any such provision, the Minister may by regulations do anything which appears to him or her to be necessary or expedient for removing that difficulty, for bringing that provision into operation or for securing or facilitating its operation.

• (2) A regulation made under subsection (1) may modify any provision of this Part which makes provision for, or in connection with, any administrative or procedural matter (including, in particular, the length of any period of time within which notice requires to be given under this Part) so far as may be necessary or expedient for carrying such provision into effect for the purposes aforesaid, but no regulations shall be made under this section in relation to any provision of this Part after the expiration of 2 years commencing on the day on which the provision came into operation.

• (3) Where regulations are proposed to be made under this section, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving the draft has been passed by each such House.]

PART 11 WINDING UP

CHAPTER 1 Preliminary and interpretation

559. Interpretation (Part 11)

559. (1) In this Part—

“connected person” means a person who, at the time the transaction in relation to the company concerned was carried out, was—

• (a) a director of the company;

• (b) a shadow director of the company;

• (c) a person connected, within the meaning of section 220, with a director of the company;

• (d) a related company; or

• (e) any trustee of, or surety or guarantor for the debt due, to any person referred to in paragraph (a), (b), (c) or (d);

“contributory” means every person liable to contribute to the assets of a company in the event of its being wound up, and subsection (2) supplements this definition;

“creditors’ voluntary winding up” means a voluntary winding up in the circumstances specified in section 562(1)(b);

“members’ voluntary winding up” means a voluntary winding up in the circumstances specified in section 562(1)(a) or (2);

“property” means all real and personal property, and includes any right of action by the company or liquidator under the provisions of this Act or any other enactment;

“provisional liquidator” means a liquidator appointed provisionally under section 573, and subsections (3) to (5) contain provisions as to the construction of references in this Part to liquidator so far as concerns the immediate expression;

“winding-up petition” means a petition presented under this Act to wind up a company.

• (2) For the purposes of—

• (a) all proceedings for determining; and

• (b) all proceedings prior to the final determination of,

the issue as to whether a particular person is a contributory for the purposes of this Part, “contributory” in this Part includes any person alleged to be a contributory.

• (3) Subsections (4) and (5) apply save where the terms of the provision concerned make express reference to a provisional liquidator or otherwise provide for the construction of the expression “provisional liquidator”.

• (4) Where a provision of this Part is capable of being applied in the period before the making of a winding-up order (including a provision that makes provision by reference to anything that has happened in such period), then “liquidator” in that provision, to the extent that it is capable of such application or makes such provision, includes a provisional liquidator.

• (5) Where the court confers any power on a provisional liquidator and the power conferred corresponds to any power express provision for which is made by a provision of this Part then, to the extent that that latter provision is capable of being applied in the period before the making of a winding-up order, “liquidator” in that provision includes a provisional liquidator.

560. Restriction of this Part

560. This Part is subject to Chapters I (general provisions) and III (secondary insolvency proceedings) of the Insolvency Regulation.

561. Modes of winding up — general statement as to position under Act

561. The winding up of a company may be—

• (a) by the court; or

• (b) voluntary.

562. Types of voluntary winding up — general statement as to position under Act

562. (1) The voluntary winding up of a company—

• (a) may, in accordance with the Summary Approval Procedure or (where section 579(3) permits) in accordance with section 580, be a members’ voluntary winding up unless—

• (i) there is default in the making of a declaration referred to in section 207 or 580(2) in accordance with the relevant provisions of this Act; or

• (ii) the court makes an order under section 582(2) in relation to the company; or

• (iii) a creditors’ meeting is held in accordance with section 584 in relation to the company,

(each of which is referred to in paragraph (b) as a “bar to a members’ winding up”); or

• (b) shall, where there is a bar to a members’ winding up or the procedure under section 586(2) is employed, be a creditors’ voluntary winding up.

• (2) Subsection (1)(a) is in addition to the jurisdiction of the court under section 572(4) to order that a company be wound up as a members’ voluntary winding up.

• (3) Nothing in subsection (1) shall be read as affecting the operation of—

• (a) in the case of the Summary Approval Procedure being employed for the purpose — section 201(3), or

• (b) in the case of section 580 being employed for the purpose — section 580(6).

563. Provisions apply to either mode of winding up unless the contrary appears

563. The provisions of this Part relating to winding up apply, unless the contrary appears, to the winding up of a company in either of the modes mentioned in section 561.

564. Jurisdiction to wind up companies and rules of court

564. (1) The court shall have jurisdiction to wind up a company.

• (2) In subsections (3) to (6) the “rule making authority” means the powers under section 36 of the Courts of Justice Act 1924 and section 68 of the Courts of Justice Act 1936, and all the other powers of that Committee in that behalf, of the Superior Courts Rules Committee to make rules regulating the practice and procedure of the court.

• (3) The extension of the rule making authority made by section 312 of the Act of 1963 shall continue in being.

• (4) As soon as may be after the passing of this Act, the rule making authority shall be exercised so as to secure that the rules of court in force before such passing in relation to windings up are altered in a manner that brings them into conformity with this Part.

• (5) In particular the rule making authority shall be so exercised so as to remove those of the functions of the court officer known as “the Examiner” as are stated in those rules to be performable for the purposes of a winding up.

• (6) Subsections (4) and (5) are without prejudice to the exercise generally of the rule making authority on and from the passing of this Act, whether for any purpose of this Act or any other purpose.

565. Powers of court cumulative

565. Any powers conferred on the court by this Act are in addition to, and not in restriction of, any existing powers of instituting proceedings against any contributory or debtor of the company or the estate of any contributory or debtor, for the recovery of any call or other sums.

566. Court may have regard to wishes of creditors or contributories

566. (1) The court may, as to all matters relating to the winding up of a company, have regard to the wishes of the creditors or contributories of the company, as proved to it by any sufficient evidence.

• (2) For the purpose of ascertaining those wishes, the court may, if it thinks fit—

• (a) direct meetings of the creditors or contributories to be called, held and conducted in such manner as the court directs, and

• (b) appoint a person to act as chairperson of any such meeting and report the result of the meeting to the court.

• (3) In the case of creditors, regard shall be had to the value of each creditor’s debt.

• (4) In the case of contributories, regard shall be had to the number of votes conferred on each contributory by this Act or the constitution of the company.

567. Application of certain provisions to companies not in liquidation

567. (1) This section applies in relation to a company that is not being wound up where—

• (a) execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part, or

• (b) it is proved to the satisfaction of the court that the company is unable to pay its debts, taking into account the contingent and prospective liabilities of the company,

and, in either case, it appears to the court that the reason or the principal reason for its not being wound up is the insufficiency of its assets.

• (2) The sections specified in the Table to this section apply, with the necessary modifications, to a company to which this section applies, notwithstanding that it is not being wound up; accordingly, a person who would have standing otherwise to apply for an order or judgment under a section so specified shall have such standing to make an application under that section as so applied, but this does not affect the F452[Authority’s] power under subsection (3).

• (3) The F452[Authority] may apply to the court pursuant to this subsection for an order or judgment, as the case may be, under any of the sections which apply to a company to which this section applies.

• (4) References in the sections specified in the Table to this section to—

• (a) the commencement of the winding up of a company,

• (b) the appointment of a provisional liquidator,

• (c) the making of a winding-up order, or

• (d) the relevant date,

shall, for the purposes of this section, be read as references to the date—

• (i) of the judgment, decree or order mentioned in subsection (1)(a), or

• (ii) on which the court determines that the company is unable to pay its debts.

• (5) Where, by virtue of this section, proceedings are instituted under section 599, 608, 609, 610, 612 or 672, sections 610(6) and 611 shall apply in relation to any order made as a result of those proceedings except that an order made as a result of an application by the F452[Authority pursuant to subsection (3) shall not be made in favour of the Authority], otherwise than as to his or her costs and expenses.

• (6) Subject to subsection (7), a person having a claim against the company may apply to the court for such order as is appropriate by way of enforcement of any right the court on the application finds to arise on the person’s part to payment of a share of any sums or assets recovered or available following a successful application by the F452[Authority] pursuant to subsection (3), and, on the hearing of an application under this subsection, the court may make such an order accordingly.

• (7) An application under subsection (6) shall be made within a period of 30 days after the date of judgment or order given on behalf or in favour of the F452[Authority] pursuant to subsection (3).

• (8) Where section 721 applies by virtue of this section, it shall so apply as if the words “which is subsequently ordered to be wound up by the court or subsequently passes a resolution for voluntary winding up” were deleted from it.

TABLE

Sections to which this section applies

Section	Subject
Section 286(3)	Particular case of category 1 offence arising where adequate accounting records not kept, etc.
Section 599	Related company may be required to contribute to debts of company being wound up
Section 608	Power of court to order return of assets which have been improperly transferred
Section 609	Personal liability of officers of company where adequate accounting records not kept
Sections 610 and 611	Civil liability for fraudulent trading
Section 612	Power of court to assess damages against certain persons
Section 613	Directors of holding company: power of court to assess damages against them
Section 671	Power of court to summon persons for examination
Section 672	Order for payment or delivery of property against person examined under section 671
Section 675	Order for arrest and seizure, etc.
Section 684	Inspection of books by creditors and contributories
Section 721	Other frauds by officers of companies which have gone into liquidation: offence
Section 722	Fraudulent trading of company: offence
Section 751	Order for inspection of books or documents of company in liquidation
Section 818	Interpretation and application (Chapter 3 of Part 14)

CHAPTER 2 Winding up by court

568. Application of Chapter

568. Save to the extent that the provision expressly provides otherwise, each provision of this Chapter applies only to a winding up that is ordered by the court.

569. Circumstances in which company may be wound up by the court

569. (1) A company may be wound up by the court—

• (a) if the company has by special resolution resolved that the company be wound up by the court,

• (b) if the company does not commence its business within a year after the date of its incorporation or suspends its business for a continuous period of 12 months,

• (c) if the members of the company are all deceased or no longer exist,

• (d) if the company is unable to pay its debts,

• (e) if the court is of the opinion that it is just and equitable that the company should be wound up,

• (f) if the court is satisfied that the company’s affairs are being conducted, or the powers of the directors are being exercised, in a manner oppressive to any member or in disregard of his or her interests as a member and that, despite the existence of an alternative remedy, winding up would be justified in the general circumstances of the case but this paragraph is subject to subsection (2),

• (g) if the court is satisfied, on a petition of the F453[Authority], that it is in the public interest that the company should be wound up, or

• (h) in the circumstances referred to in section 535(2) or 542(5).

• (2) The court may dismiss a petition to wind up a company under subsection (1)(f) if it is of the opinion that proceedings under section 212 would, in all the circumstances, be more appropriate.

• (3) Subsection (1) is in addition to the special cases (namely those provided under sections 455(2)(d), 760 and 761) in which a company may be wound up by the court.

570. Circumstances in which company deemed to be unable to pay its debts

570. For the purposes of this Act, a company shall be deemed to be unable to pay its debts—

• (a) F454[if—]

• (i) a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding €10,000 then due, has served on the company (by leaving it at the registered office of the company) a demand in writing requiring the company to pay the sum so due, and

• (ii) the company has, for 21 days after the date of the service of that demand, neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor,

• F455[(ba) F456[…]]

or

• (b) F454[if—]

• (i) 2 or more creditors, by assignment or otherwise, to whom, in aggregate, the company is indebted in a sum exceeding €20,000 then due, have served on the company (by leaving it at the registered office of the company) a demand in writing requiring the company to pay the sum so due, and

• (ii) the company has, for 21 days after the date of the service of that demand, neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of each of the creditors,

or

• (c) if execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part, or

• (d) if it is proved to the satisfaction of the court that the company is unable to pay its debts, and in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company.

571. Provisions as to applications for winding up

571. (1) An application to the court for the winding up of a company shall be by petition presented either by—

• (a) the company, or

• (b) any creditor or creditors (including any contingent or prospective creditor or creditors) of the company, or

• (c) any contributory or contributories of the company,

or by all or any of those parties, together or separately, but this is subject to the following provisions.

• F457[(1A) Where a winding up petition is presented by the company under subsection (1), the directors of the company concerned shall notify each relevant person of the petition at the time that petition is presented or as soon as reasonably practicable after such presentation.]

• (2) The court shall not give a hearing to a winding-up petition presented by a contingent or prospective creditor until such security for costs has been given as the court thinks reasonable, and until a prima facie case for winding up has been established to the satisfaction of the court.

• (3) A winding-up petition on the grounds mentioned in section 569(1)(f) may be presented by any person entitled to bring proceedings for an order under section 212 in relation to the company concerned.

• (4) In a case falling within section 569(1)(g) a winding-up petition may be presented by the F458[Authority].

• (5) A contributory shall not be entitled to present a winding-up petition unless the shares in respect of which the person is a contributory, or some of them, either—

• (a) were originally allotted to the person or have been held by the person, and registered in the person’s name, for at least 6 months during the 18 months before the commencement of the winding up, or

• (b) have devolved on the person through the death of a former holder.

• F457[(6) In this section, "relevant person" means, in relation to a company—

• (a) an employee of the company, and

• (b) where applicable, an employees’ representative.]

572. Powers of court on hearing petition

572. (1) On the hearing of a winding-up petition, the court may—

• (a) dismiss the petition, or

• (b) adjourn the hearing conditionally or unconditionally, or

• (c) make any interim order, or any other order that it thinks fit,

but the court shall not refuse to make a winding-up order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets.

• (2) The court shall not make an order for the winding up of a company unless—

• (a) the court is satisfied that the company has no obligations in relation to a bank asset that has been transferred to the National Asset Management Agency or a NAMA group entity, or

• (b) if the company has any such obligation—

• (i) a copy of the petition has been served on that Agency, and

• (ii) the court has heard that Agency in relation to the making of the order.

• F459[(2A) In deciding whether it is just and equitable to make an order under this section the court shall have regard to whether the requirements of section 571(1A) have been met.]

• (3) In subsection (2) “bank asset” and “NAMA group entity” have the same respective meanings as in the National Asset Management Agency Act 2009.

• (4) Upon the making of an order to wind up a company, based on a ground referred to in paragraph (a), (b), (c), (e) or (f) of section 569(1), the court may order that the company be wound up as if it were a members’ voluntary winding up and, in such event, the provisions of this Part shall apply as if the company were being so wound up.

• (5) Where a petitioner does not proceed with his or her winding-up petition, the court may, upon such terms as it shall deem just, substitute as petitioner any person who would have a right to present a petition in relation to the company, and who wishes to proceed with the petition.

573. Appointment of provisional liquidator

573. F460[(1)] The court may appoint a liquidator provisionally at any time after the presentation of a winding-up petition and before the first appointment of a liquidator.

• F460[(2) Where a provisional liquidator is appointed under subsection (1), the court shall direct that, as soon as reasonably practicable and in any case within such period as may be specified by the court, the provisional liquidator shall inform each relevant person—

• (a) of his or her appointment as provisional liquidator and the date of his or her appointment,

• (b) of the process under this Part in so far as it relates to the employees,

• (c) that a relevant person may provide the provisional liquidator with information about matters they consider to be relevant, and

• (d) of any other matter the provisional liquidator considers relevant.

• (3) In this section, "relevant person" means, in relation to a company—

• (a) an employee of the company, and

• (b) where applicable, an employees’ representative.]

574. Power to stay or restrain proceedings against company

574. At any time after the presentation of a winding-up petition, and before a winding-up order has been made, the company or any creditor or contributory may—

• (a) where any action or proceeding against the company is pending in the High Court or on appeal in the Supreme Court, apply to the court in which the action or proceeding is pending for a stay of proceedings therein, and

• (b) where any other action or proceeding is pending against the company, apply to the High Court to restrain further proceedings in the action or proceeding,

and the court to which application is so made may, as the case may be, stay or restrain the proceedings accordingly on such terms and for such period as it thinks fit.

575. Appointment of liquidator by the court

575. For the purpose of conducting the proceedings in winding up a company, the court may appoint a liquidator or liquidators.

576. Effect of winding-up order

576. An order for winding up a company shall operate in favour of all the creditors and of all the contributories of the company, as if made on the joint petition of a creditor and of a contributory.

577. Saving for rights of creditors and contributories

577. The voluntary winding up of a company shall not bar the right of any creditor or contributory to have it wound up by the court; but in the case of an application by a contributory the court must be satisfied that the rights of the contributories will be prejudiced by a voluntary winding up.

CHAPTER 3 Members’ voluntary winding up

578. Application of Chapter

578. Save to the extent that the provision expressly provides otherwise, each provision of this Chapter applies only to a members’ voluntary winding up.

579. Procedure for and commencement of members’ voluntary winding up

579. (1) A company may be wound up voluntarily as a members’ voluntary winding up.

• (2) In all cases, save for a case falling within subsection (3), a members’ voluntary winding up shall be commenced in accordance with the Summary Approval Procedure.

• (3) In either of the following cases, namely:

• (a) on the expiry of the period, if any, that is fixed for the duration of a company by its constitution; or

• (b) should such happen, when the event occurs on the occurrence of which a company’s constitution provides that the company is to be dissolved;

a members’ voluntary winding up of the company may, alternatively to the employment of the Summary Approval Procedure for that purpose, be commenced in accordance with section 580.

580. Companies of fixed duration, etc.: alternative means of commencing members’ voluntary winding up

580. (1) In a case falling with paragraph (a) or (b) of section 579(3), a members’ voluntary winding up of a company may be commenced if the company in general meeting has passed a resolution (whether before or after expiry of the period referred to in that paragraph (a) or the happening of the event referred to in that paragraph (b)) that the company be wound up voluntarily and subsections (2) to (4) are complied with.

• (2) Where, in either of the cases mentioned in subsection (1), it is proposed to wind up a company voluntarily, the directors of the company or, in the case of a company having more than 2 directors, the majority of the directors may, at a meeting of the directors, make a declaration to the effect that they have made a full inquiry into the affairs of the company, and that having done so, they have formed the opinion that the company will be able to pay or discharge its debts and other liabilities in full within such period not exceeding 12 months after the commencement of the winding up as may be specified in the declaration.

• (3) Such a declaration shall have no effect for the purposes of this Part unless—

• (a) it is made at a meeting of the directors held not earlier than 30 days before—

• (i) the date of the meeting referred to in subsection (1), or

• (ii) if the resolution referred to in that subsection is passed by the means provided under section 193 or 194, the date of the signing of the resolution by the last member to sign,

• (b) it states the total amount of the company’s assets and liabilities as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making,

• (c) a report made, in accordance with the provisions of that subsection, by a person referred to in subsection (4) is attached to it, and

• (d) either—

• (i) the company has forwarded with each notice of the meeting at which the resolution is to be considered, or

• (ii) if the means referred to in section 193 or 194 for passing the resolution is followed, the company has appended to the resolution,

a copy of the declaration.

• (4) The report referred to in subsection (3)(c) is a report drawn up, F461[in the form prescribed by the Minister], by a person qualified at the time of the report to be appointed, or to continue to be, the statutory auditor of the company and stating whether, in the opinion of that person, the declaration is not unreasonable.

• (5) The company shall deliver, within 14 days after the commencement of the members’ voluntary winding up under this section, a copy of the foregoing declaration to the Registrar.

• (6) The provisions of this section shall be read and shall operate so that a members’ voluntary winding up under this section may be carried on at a time falling before compliance with the requirement of subsection (5) that a copy of the declaration there referred to be delivered to the Registrar; however — should a failure to comply with that requirement occur — that failure then invalidates the carrying on of that activity, but this is without prejudice to the power of validation conferred on the court by subsection (7).

• (7) On application to it by any interested party, the court may, in any case where there has been a failure to comply with subsection (5), declare that the carrying on of the members’ voluntary winding up shall be valid for all purposes if the court is satisfied that it would be just and equitable to do so.

581. Publication of resolution to wind up voluntarily

581. (1) Where a company has passed a resolution for its voluntary winding up, whether—

• (a) the special resolution referred to in section 202(1)(a)(i) — in a case where the Summary Approval Procedure is employed, or

• (b) the resolution referred to in section 580(1) — where the procedure there mentioned is employed,

it shall, within 14 days after the date of the passing of the resolution, give notice of the resolution by advertisement in Iris Oifigiúil.

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

• (3) For the purposes of subsection (2), the liquidator of the company shall be deemed to be an officer of the company.

582. Protections and remedies for creditors in cases where declaration of solvency made

582. (1) This section applies where a company has passed a resolution to wind up voluntarily.

• (2) If, on application to it by a creditor of the company in accordance with subsection (3), the court—

• (a) is satisfied that such creditor, together with any creditors supporting him or her in the application, represents one-fifth at least in number or value of the creditors of the company, and

• (b) is of opinion that it is unlikely that the company will be able to pay or discharge its debts and other liabilities within the period specified in the declaration concerned referred to in section 207 or 580(2),

the court may order that all the provisions of this Act relating to a creditors’ voluntary winding up shall apply to the winding up of the company.

• (3) An application under subsection (2) shall be made within 30 days after the date on which the resolution for voluntary winding up of the company has been advertised under section 581(1).

• (4) If (in a case where the Summary Approval Procedure is employed) an application is made by one or more members of the company in accordance with section 211 to cancel the special resolution referred to in section 202(1)(a)(i), the court may direct that that application and an application that is made under subsection (2) shall be heard together or may give such other direction in the matter as it thinks just.

• (5) If the court makes an order of the kind referred to in subsection (2)—

• (a) the person who held the office of liquidator immediately prior to the making of the order, or

• (b) if no liquidator is acting, the company to which the order relates,

shall, within 21 days after the date of the making of the order, deliver a certified copy of such order to the Registrar.

• (6) If default is made in complying with subsection (5), the person referred to in paragraph (a) of it or, as the case may be, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.