Companies (Amendment) Act, 1990

• Jurisdiction: Ireland
• Citation: IR No. 27/1990
• Year: 1990

Number 27 of 1990
COMPANIES (AMENDMENT) ACT, 1990
ARRANGEMENT OF SECTIONS
Section 1. Definitions. 2. Power of court to appoint examiner. 3. Petition for protection of the court. 4. Related companies. 5. Effect of petition to appoint examiner on creditors and others. 6. Effect on receiver or provisional liquidator of order appointing examiner. 7. Powers of an examiner. 8. Production of documents and evidence. 9. Further powers of court. 10. Incurring of certain liabilities by examiner. 11. Power to deal with charged property, etc. 12. Notification of appointment of examiner. 13. General provisions as to examiners. 14. Information to be given when examiner appointed. 15. Examination of affairs of company. 16. Examiner's report. 17. Hearing of matters arising from examiner's report. 18. Further report by examiner. 19. Examiner's report under section 18. 20. Repudiation of certain contracts. 21. Appointment of creditors' committee. 22. Contents of proposals. 23. Consideration by members and creditors of proposals. 24. Confirmation of proposals. 25. Objection to confirmation by court of proposals. 26. Cessation of protection of company and termination of appointment of examiner. 27. Revocation. 28. Disqualification of examiners. 29. Costs and remuneration of examiners. 30. Publicity. 31. Hearing of proceedings otherwise than in public. 32. No lien over company's books, records etc. 33. Civil liability of persons concerned for fraudulent trading of company. 34. Criminal liability of persons concerned for fraudulent trading of company. 35. Power of court to order the return of assets which have been improperly transferred. 36. Enforcement of reconstruction orders made by courts outside the State. 37. Short title, collective citation and construction.
Acts Referred to Central Bank Act, 1971 1971, No. 24 Companies Act, 1963 1963, No. 33
Number 27 of 1990
COMPANIES (AMENDMENT) ACT, 1990
AN ACT TO AMEND THE LAW RELATING TO COMPANIES AND TO PROVIDE FOR RELATED MATTERS. [29th August, 1990]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
	Definitions.	1.—In this Act, unless the context otherwise requires—
	“the Companies Acts” means the Principal Act, and every enactment (including this Act) which is to be construed as one with that Act;
	“examiner” means an examiner appointed under section 2 ;
	“interested party”, in relation to a company to which section 2 (1) relates, means—
	(a) a creditor of the company,
	(b) a member of the company;
	“the Minister” means the Minister for Industry and Commerce;
	“the Principal Act” means the Companies Act, 1963 .
	Power of court to appoint examiner.	2.—(1) Where it appears to the court that—
	(a) a company is or is likely to be unable to pay its debts, and
	(b) no notice of a resolution for the winding-up of the company has been given under section 252 of the Principal Act more than 7 days before the application hereinafter referred to, and
	(c) no order has been made for the winding-up of the company,
	it may, on application by petition presented, appoint an examiner to the company for the purpose of examining the state of the company's affairs and performing such duties in relation to the company as may be imposed by or under this Act.
	(2) Without prejudice to the general power of the court under subsection (1), it may, in particular, make an order under this section if it considers that such order would be likely to facilitate the survival of the company, and the whole or any part of its undertaking, as a going concern.
	(3) For the purposes of this section, a company is unable to pay its debts if—
	(a) it is unable to pay its debts as they fall due,
	(b) the value of its assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities, or
	(c) section 214 (a) or (b) of the Principal Act applies to the company.
	(4) In deciding whether to make an order under this section the court may also have regard to whether the company has sought from its creditors significant extensions of time for the payment of its debts, from which it could reasonably be inferred that the company was likely to be unable to pay its debts.
	Petition for protection of the court.	3.—(1) Subject to subsection (2), a petition under section 2 may be presented by—
	(a) the company, or
	(b) the directors of the company, or
	(c) a creditor, or contingent or prospective creditor (including an employee), of the company, or
	(d) members of the company holding at the date of the presentation of a petition under that section not less than one-tenth of such of the paid-up capital of the company as carries at that date the right of voting at general meetings of the company,
	or by all or any of those parties, together or separately.
	(2) (a) Where the company referred to in section 2 is an insurer, a petition under that section may be presented only by the Minister, and subsection (1) of this section shall not apply to the company.
	(b) Where the company referred to in section 2 is the holder of a licence under section 9 of the Central Bank Act, 1971 , or any other company supervised by the Central Bank under any enactment, a petition under section 2 may be presented only by the Central Bank, and subsection (1) of this section shall not apply to the company.
	(3) A petition presented under section 2 shall—
	(a) nominate a person to be appointed as examiner, and
	(b) be supported by such evidence as the court may require for the purpose of showing that the petitioner has good reason for requiring the appointment of an examiner, and
	(c) where the petition is presented by any person or persons referred to in subsection (1) (a) or (b), include a statement of the assets and liabilities of the company (in so far as they are known to them) as they stand on a date not earlier than 7 days before the presentation of the petition.
	(4) A petition presented under section 2 shall be accompanied—
	(a) by a consent signed by the person nominated to be examiner, and
	(b) if proposals for a compromise or scheme of arrangement in relation to the company's affairs have been prepared for submission to interested parties for their approval, by a copy of the proposals.
	(5) The court shall not give a hearing to a petition under section 2 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 the protection of the court has been established to the satisfaction of the court.
	(6) The court shall not give a hearing to a petition under section 2 if a receiver stands appointed to the company the subject of the petition and such receiver has stood so appointed for a continuous period of at least 14 days prior to the presentation of the petition.
	(7) On hearing a petition under this section, the court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make any interim order, or any other order it thinks fit.
	(8) Without prejudice to the generality of subsection (7), an interim order under that subsection may restrict the exercise of any powers of the directors or of the company (whether by reference to the consent of the court or otherwise).
	(9) (a) Where it appears to the court that the total liabilities of the company (taking into account its contingent and prospective liabilities) do not exceed £250,000, the court may, after making such interim or other orders as it thinks fit, order that the matter be remitted to the judge of the Circuit Court in whose circuit the company has its registered office or principal place of business.
	(b) Where an order is made by the court under this subsection the Circuit Court shall have full jurisdiction to exercise all the powers of the court conferred by this Act in relation to the company and every reference to the court in this Act shall be construed accordingly.
	(c) Where, in any proceedings under this Act which have been remitted to the Circuit Court by virtue of this subsection, it appears to the Circuit Court that the total liabilities of the company exceed £250,000, it shall make, after making such interim orders as it thinks fit, an order transferring the matter to the court.
	Related companies.	4.—(1) Where the court appoints an examiner to a company, it may, at the same or any time thereafter, make an order—
	(a) appointing the examiner to be examiner for the purposes of this Act to a related company, or
	(b) conferring on the examiner, in relation to such company, all or any of the powers or duties conferred on him in relation to the first-mentioned company.
	(2) In deciding whether to make an order under subsection (1), the court shall have regard to whether the making of the order would be likely to facilitate the survival of the company, or of the related company, or both, and the whole or any part of its or their undertaking, as a going concern.
	(3) A related company to which an examiner is appointed shall be deemed to be under the protection of the court for the period beginning on the date of the making of an order under this section and continuing for the period during which the company to which it is related is under such protection.
	(4) Where an examiner stands appointed to two or more related companies, he shall have the same powers and duties in relation to each company, taken separately, unless the court otherwise...