Gaultier v The Registrar of Companies
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 08 March 2013 |
| Neutral Citation | [2013] IEHC 111 |
| Court | High Court |
| Date | 08 March 2013 |
BETWEEN
AND
[2013] IEHC 111
THE HIGH COURT
COMPANY LAW
Dissolution of company
Detention of goods by Revenue Commissioners in error - Damage to company - Failure to file annual returns - Strike off - Complaint that opportunity to file returns given on prior occasion - Alleged malfeasance - Alleged obstruction of justice - Function of court on review - Review of process - Star Homes (Midleton) Limited v Pensions Ombudsman [2010] IEHC 463, (Unrep, Hedigan J, 21/12/2010); Ryanair Limited v Flynn [2003] IR 240; State (Keegan) v Stardust Compensation Tribunal [1986] IR 642; O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Bailey v Flood (Unrep, Morris P, 6/3/2000) and Devlin v Minister for Arts [1999] 1 IR 47 considered - Companies (Amendment) Act 1982 (No 10), s 12(3) - Reliefs refused (2012/612JR - Dunne J - 8/3/2013) [2013] IEHC 111
Gaultier v Registrar of Companies
Facts The applicant was the director of a company which had been struck off for failing to file annual returns. Previously the applicant had a dispute with the Revenue over the seizure of goods. The applicant received a settlement over the incident, although it appeared that part of the settlement in the form of a cheque had not cashed. The applicant initiated judicial review proceedings contending that there was misfeasance, malfeasance and a breach of duty in the manner in which the company was dissolved. It was contended that previously the company had been afforded an opportunity to file returns but had been denied this opportunity subsequently. It was contended that the effect of the dissolution of the company was that the assets of the company (including the settlement from the Revenue) became the property of the Minister for Finance.
Held by Dunne J in refusing the reliefs sought: the requirement of the filing of annual returns was part of the necessary regulatory machinery provided for in the extensive legislation in relation to companies. There was nothing in the conduct of the Registrar which could be said to fly in the face of reason or common sense. There was no evidence to support the suggestion that the company was dissolved by reason of the fact that the Registrar of Companies was motivated improperly to dissolve a company due to on-going litigation against an arm of the State. The applicant was still entitled to make an application for the restoration of the company to the Registrar of Companies.
COMPANIES ACT 1963 S125
COMPANIES (AMDT) ACT 1982 S12(3)
COMPANIES ACT 1963 S310
COMPANIES ACT 1963 S311(A)
COMPANIES (AMDT) ACT 1982 S18(3)
STAR HOMES (MIDLETON) LTD v PENSIONS OMBUDSMAN UNREP HEDIGAN 21.12.2010 2010/48/12124 2010 IEHC 463
RYANAIR LTD v FLYNN 2003 IR 240
STATE (KEEGAN) v STARDUST COMPENSATION TRIBUNAL 1986 IR 642
O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39
BAILEY & BOVALE DEVELOPMENTS LTD v FLOOD (PLANNING TRIBUNAL) UNREP MORRIS 6.3.2000 2000/2/457
JUDGMENT of Ms. Justice Dunne delivered the 8th day of March 2013
The applicant herein was the "director - chairman" and former employee of a company called Loire Valley Limited (the company). The company was dissolved on the 6 th April, 2012, in accordance with the provisions of the Companies Act 1963 to 2009 in circumstances where the company's annual return for 2010 and 2011 were not filed in compliance with the requirements of s. 125 of the Companies Act 1963.
The applicant has sought a number of declarations and other reliefs by way of judicial review, the purpose of which is to have the decision to dissolve the company voided. The reliefs sought are set out in the statement required to ground the application for judicial review. The applicant was not legally represented at any stage in these proceedings and it is, perhaps, for that reason that the statement required to ground the application for judicial review is not in the form one expects to see. The overall aim of the applicant is, as I have said, to have the decision to dissolve the company voided, postponed or delayed on the basis that there was misfeasance, malfeasance, nonfeasance, obstruction to the administration of justice and a breach of duty in and around the circumstances in which the company was dissolved. Relief has been sought by the applicant in the form of a series of declarations and the applicant has sought a number of other reliefs by way of mandamus. Some of those reliefs are so far removed from what would be appropriate to be considered in judicial review proceedings that I propose to say very little about them, except to say that they are not matters which can be dealt with by the court. For example, the relief sought at para. (T.) in the statement required to ground the application for relief is set out in the following terms:-
"An order of mandamus for the respondent to issue letters of apologies to both the applicant and "the company" for all inconvenience suffered, letters to be translated and published in Le Courrier de l'Ouest, a French regional newspaper and La Vigne, a French national professional magazine at the respondent's expense."
Clearly, it is inappropriate to seek such an order in proceedings of this kind.
The grounds relied on by the applicant are to be found set out in the verifying affidavit sworn by him on the 3 rd July, 2012. I will refer to these shortly.
By way of background, the company was involved in the importation of wine. In 2006, some 22 pallets of wine were detained and seized by the Revenue Commissioners. This had an adverse effect on the business of the company. It appears from a letter from the Revenue Commissioners of the 13 th August, 2008 that this was an error on the part of the Revenue Commissioners for which they apologised. The Revenue Commissioners paid the sum of €25,000 to the company by way of recompense for the full value of the wine and tendered a further amount in the sum of €80,000 at a meeting on the 6 th August, 2008, between officials of the Revenue Commissioners and the applicant herein. It appears from what was said in court that the latter cheque was never cashed by the company or by the applicant on its behalf.
In 2008, the company was in default in relation to the obligation to file annual returns but although the company was placed on the strike off list by the Companies Registration Office (hereinafter referred to as the CRO) it was removed from that list and temporarily blocked from enforcement measures at the request of the company, by reason of its dispute with the Revenue. Ultimately, the necessary returns were filed; that of 2006 was filed on the 16 th January, 2009, that of 2007 was filed on the 2 nd February, 2009, and the 2008 annual returns was filed on the 12 th January, 2009. Finally, the annual returns for 2009 were filed on the 12 th January, 2010.
Subsequently, the annual returns for 2010 and 2011 were not filed. Letters were sent to the company and the applicant and fellow director, together with reminders advising of the failure to file the annual returns for 2010, pointing out the consequences. Similarly, given that there was a default in relation to the annual returns for 2011, further letters were sent out by the CRO.
There was correspondence between the applicant and the CRO arising from the failure of the company to file the annual returns and the commencement of the strike off process in 2012 and thereafter. The applicant did not furnish a reason for the failure to file annual returns but did refer to the ongoing dispute with the Revenue Commissioners. The applicant indicated that he proposed to commence proceedings against the Revenue later in the year and before the Statute of Limitations ran out. He did not give a direct written response to the CRO as to why various legal proceedings involving the company prevented the filing of the annual returns. Insofar as he provided an explanation, he stated in an email of the 17 th February, 2012:-
"Regarding the query of your office about how the seizure of a full shipment of wine (worth in excess of €50,000) might have prevented me from filing my annual returns, I am quite speechless for finding words to explain that a business interruption in excess of five years may have such consequences (more especially financial from a company point of view)."
For completeness, I should add that the applicant in the course of the hearing before me, blamed the failure to file annual returns on two matters, one, the lack of money available to the company and the second being the fact that his brother, who was then a co-director of the company, was in France and was not able to sign the annual returns by the deadline required. Ultimately, the company was dissolved in accordance with the procedures provided for under the Companies legislation on the 6 th April, 2012.
The complaints of the applicant in respect of the decision of the CRO and in particular the respondent to dissolve the company can be summarised as follows:-
1. He complains that when the company was previously put on the strike off list it was given the opportunity to file annual returns and he contrasts that position with the fact that he was not given the same opportunity on this occasion. He queries the interpretation of the words contained in s. 12(3) of the Companies (Amendment) Act 1982 (1982 Act) which concerns the power of the...
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