Deauville Communications

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 15 March 2002
• Neutral Citation: [2002] IESC 19
• Date: 15 March 2002
• Court: Supreme Court
• Docket Number: [S.C. No.

DEAUVILLE COMMUNICATIONS WORLDWIDE LTD & ORLAFORD LTD, RE

IN THE MATTER OF DEAUVILLE COMMUNICATIONS WORLDWIDE LIMITED AND

IN THE MATTER OF THE COMPANIES ACTS, 1963, 1999 AND

IN THE MATTER OF AN APPLICATION BY ORLAFORD LIMITED PURSUANT TO SECTION 12(B) OF THE COMPANIES (AMENDMENT) ACT 1982 AS INSERTED BY SECTION 46 OF THE COMPANIES (AMENDMENT) (2) AMENDMENT ACT 1999

[2002] IESC 19

Keane C.J.

McGuinness J.

Fennelly J.

169/01

THE SUPREME COURT

Synopsis:

COMPANY LAW

Statutory interpretation

Restoration to Register of Companies - Intellectual property - Whether petitioner creditor of company - Whether Circuit Court had exclusive jurisdiction in matter - Companies Act, 1963 - Companies (Amendment) Act, 1999 (169/2001 - Supreme Court - 15/3/2002)

- [2002] 2 IR 32 - [2002] 2 ILRM 388

In re Deauville Communications

Facts: The petitioner (Orlaford) had brought a petition seeking to have a company (Deauville) restored to the Register of Companies. The restoration was sought in order to aid Orlaford pursue related proceedings involving an alleged infringement of a patent. Orlaford brought the petition on the basis that it was a creditor of Deauville. In the High Court O'Higgins J granted the order sought. Deauville appealed against the order. It was contended that the application should have been brought in the Circuit Court, that Orlaford was not a creditor and thirdly that the claim in question was not a bona fide one.

Held by the Supreme Court (Keane CJ delivering judgment; McGuinness J and Fennelly agreeing) in dismissing the appeal. The relevant statutory provisions enabled for the application to be brought to the Circuit Court. A creditor was still entitled to obtain an order from the High Court for the restoration of a company to the register. It would seem unjust that the question of whether a person was entitled to have a company restored to the register would depend on whether their claim was for a liquidated sum. Orlaford had satisfied the test that their claim might succeed and there was nothing to indicate that the proceedings were frivolous.

Citations:

COMPANIES ACT 1963 S311

COMPANIES (AMDT) ACT 1982 S12

COMPANIES (AMDT) (NO 2) ACT 1999 S46

COMPANIES (AMDT) ACT 1982 S12(A)

COMPANIES (AMDT) ACT 1982 S12(B)

COMPANIES (AMDT) ACT 1982 S12(C)

TAXES CONSOLIDATION ACT 1997 S882(3)

COMPANIES (AMDT) ACT 1982 S12(B)(3)

COMPANIES (AMDT) ACT 1982 S12(B)(7)

COMPANIES (AMDT) (NO 2) ACT 1999 S12(B)(3)

COMPANIES (AMDT) (NO 2) ACT 1999 S12(B)(9)

COMPANIES ACT 1963 S2(1)

COMPANIES ACT 1990 S235(1)

COMPANIES ACT 1963 S2

COMPANIES ACT 1963 S10

COMPANIES ACT 1963 S11

COMPANIES ACT 1963 S311(8)

COMPANIES ACT 1963 S9

TORMEY V IRELAND 1985 IR 283

R V R 1984 IR 296

NAFTA PRODUCT OPERATION LTD, RE UNREP O'DONOVAN (EX TEMPORE)

COMPANIES (AMDT) (NO 2) ACT 1999 S1(3)

HARVEST LANE MOTOR BODIES LTD, RE 1968 2 AER 1012

TELEGRAPH CONSTRUCTION CO, RE LR 10 EQ 384

CITY OF WESTMINSTER ASSURANCE CO LTD V REGISTRAR OF COMPANIES & ANOR UNREP 28.6.1996 (EX TEMPORE)

COMPANIES ACT 1948 S224(1) (UK)

COMPANIES ACT 1963 S215

INDUSTRIAL GLAZING SYSTEMS LTD UNREP BARR 6.11.2000 (EX TEMPORE)

NELSON CAR HIRE LTD, RE 107 ILTR 97

COMPANIES ACT 1963 S310(1)

1 JUDGMENT delivered the 15th day of March, 2002 by Keane C.J. [nem diss]

2 These proceedings were begun by way of a petition by Orlaford Limited (hereafter "Orlaford") in which it sought the restoration to the Register of Companies of the company named in the title (hereafter "Deauville"). It then brought a notice of motion in which Christopher Wetherhill, Margaret Every and Joseph Kelly were named as respondents as the last known directors of Deauville. That notice of motion also sought orders declaring that the officers of Deauville should be liable for any debts or liabilities incurred by or on behalf of Deauville and an order directing the respondents to deliver all outstanding annual returns required by the relevant legislation to the Registrar of Companies (hereafter "the registrar"). The latter and the Revenue Commissioners were notice parties to the application.

3 Orlaford brought the application because it claimed to be a creditor of Deauville. The application was resisted on three grounds by the respondents: first, that the application should have been brought in the Circuit Court, secondly, that Orlaford were not a creditor of Deauville within the meaning of the relevant legislation and, thirdly, that they had not in any event adduced sufficient evidence to satisfy the court that their claim was bona fide. The High Court (O'Higgins J) found in favour of Orlaford on all three grounds and made an order that Deauville be restored to the register and that the respondents within six months deliver all outstanding annual returns to the registrar and all outstanding statements and tax returns to the Revenue Commissioners. From that judgment and order the respondents have now appealed to this court.

4 The first ground on which the order was resisted raises a somewhat difficult issue of statutory construction. It is not in dispute that, as the result of relatively recent legislation, the application could have been made in the Circuit Court: it was contended, however, on behalf of the respondents that that was the only court in which it could have been made. Before setting out the text of the statutory provisions and the submissions advanced by the parties, the relevant legislative history should be recalled.

5 S.311 of the Companies Act 1963provided machinery enabling the registrar to strike defunct companies off the register where he had reasonable cause to believe that they were not carrying on business. The High Court had also jurisdiction to order such a company to be restored to the register on the application of the company itself or any of its members of creditors.

6 S.12 of the Companies (Amendment) Act 1982("the 1982 Act") conferred an additional power on the registrar to strike off companies which failed to make returns. They were replaced by more elaborate provisions contained in s.46 of the Companies (Amendment)(2) Act 1999(hereafter "the 1999 Act"). This takes the form of an amendment of the 1982 Act by the substitution of s.s.12, 12A, 12B and 12C for s.12 of the 1982 Act. The company may now be struck off, not merely where it has ceased to carry on business or failed to make returns to the registrar, but also where it has failed to deliver the statement required by s.882(3) of the Taxes Consolidation Act, 1997to the Revenue Commissioners.

7 Both the Principal Act and the 1982 Act contained provisions for an application to the court by the company or any creditor or member of the company, who feels aggrieved by its having been struck off, with a view to having the name of the company restored to the register. That procedure is still available following the amendments introduced by s.46 of the 1999 Act, but the application, where the company was struck off for failure to make returns or deliver statements, must now be made on notice, not merely to the registrar, but also to the Revenue Commissioners and the Minister for Finance. The procedure in the case of a member, officer or creditor of the company is prescribed by s.12B(3) of the 1982 Act as inserted by s.46 of the 1999 Act. The registrar may also apply for the restoration of the company to the register and the procedure in that case is prescribed by s.12B(7) of the 1982 Act as inserted by s.46.

8 S.12B(3) of the 1999 Act provides that

"If any member, officer or creditor of a company is aggrieved by the fact of the companies having been struck off the register under s.12( 3) or 12A(3) of this Act, the court, on an application made (on notice to the registrar of the companies, the Revenue Commissioners and the Minister for Finance by the member, officer or creditor, before the expiration of 20 years from the publication in Iris Oifigiúil of the notice referred to in s.12(3) or, as the case may be, 12A(3) of this Act may, if satisfied that it is just that the company be restored to the register, order that the name of the company be restored to the register..."

9 S.S.(9) of s.12B, inserted by s.46, which has given rise to the difficulty in this case, provides that

"Without prejudice to s.2(1) of the Principal Act where such an application is made by any other person, in the case of an application under this section that is made by a creditor of the company or the registrar of companies, "the court", for the purposes of this section, means the Circuit Court".

10 S.2(1) of the Principal Act, as amended by s.235(1) of the Companies Act, 1990provides that

"Unless the context otherwise requires, "the court", used in any provisions of the Companies Acts means -"

(a) The High Court, or

(b) Where another court is prescribed for the purposes of that provision, that court."

11 Under s.2 of the principal Act, "prescribed" means, in this context, prescribed by order made by the Minister for Enterprise, Trade and Employment.

12 It is submitted on behalf of the respondents that the effect of s.s.(9) is that an application by a creditor or the registrar under s.12B must be made to the Circuit Court. It is submitted on behalf of Orlaford that the effect of s.s.(9) is to enable a creditor or the registrar to make an application under s.12B to the Circuit Court and that it does not prevent them from making an application under that section to the High Court.

13 On behalf of the respondents, Mr. Oísíin Quinn submitted that the construction of s.s.(9) contended for by Orlaford could not be reconciled with the use of the expression "where such an application is made by any other person" If, as urged on behalf of Orlaford, the provision was intended to be enabling only and not restrictive, those words would have been omitted.

14 On behalf of Orlaford, Mr. Denis McDonald SC., submitted...