Re Heather Wilson Topping (petitioner) and Re Zota Manufacturing Ltd v Companies Acts

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 22 March 2010
• Neutral Citation: [2010] IEHC 114
• Judgment citation (vLex): [2010] 3 JIC 2202
• Court: High Court
• Date: 22 March 2010

[2010] IEHC 114

THE HIGH COURT

[No. 442 COS/2006]

Topping & Zota Manufacturing Ltd, In Re

IN THE MATTER OF HEATHER WILSON TOPPING, PETITIONER

AND IN THE MATTER OF ZOTA MANUFACTURING LIMITED

AND IN THE MATTER OF THE COMPANIES ACTS 1963 TO 2003

COMPANIES (AMDT) ACT 1982 S12B

COMPANIES (AMDT) ACT 1982 S12B(3)

STATE PROPERTY ACT 1954

COMPANIES (AMDT) ACT 1982 S12B(5)

NEW AD ADVERTISING CO LTD, IN RE UNREP LAFFOY 14.11.2005 2006/44/9336 2006 IEHC 19

COMPANIES ACT 1963

COMPANIES (AMDT) ACT 1982 S12B(5)(A)

COMPANY LAW

Register

Restoration - Failure to file annual returns - Company dissolved - Insurance policy - Petition to restore company to register to allow insurance policy be realised - Impossibility of filing annual returns - Whether company should be restored to register - In re New Ad Advertising Company Ltd [2006] IEHC 19 (Unrep, HC, Laffoy J, 14/11/2005) considered - Companies (Amendment) Act 1982 (No 10), s 12B - Petition granted (2006/442COS - Laffoy J - 22/3/2010) [2010] IEHC 114

In re Topping & Zota Manufacturing

Facts The petitioner was a director of the company (Heather Wilson Topping) which had been dissolved for failure to make annual returns. On the petition the petitioner sought to have the company restored to the Registrar of Companies pursuant to s. 12B of the Companies (Amendment) Act 1982, as amended. The Revenue Commissioners and the Minister for Finance had indicated that they had no objection to the application. The issue was that ten years annual returns were outstanding and therefore the Registrar of Companies was not in a position to issue a letter to the effect that he had no objection to the company's restoration. Evidence was given that the former managing director had held possession of the company records and that since his death these had been unavailable despite efforts to locate same. It transpired that restoration of the company was required in order that the proceeds of an insurance policy would be paid out and thereafter the Registrar of Companies would be invited to remove the company from the register voluntarily.

Held by Laffoy J in granting the relief sought. The court had a very limited discretion to dispense with the requirement that outstanding returns be delivered to the Registrar of Companies. The legislative intent in enacting the requirement was to ensure that the striking-off mechanism as a deterrent against a breach of company law was not devalued. It was not clear why some other approach could not have been adopted in order to compel the Insurance company to pay the proceeds of the policy to the beneficiaries. However, given that the only persons who would benefit from the restoration of the company were persons who had no responsibility whatsoever for compliance with the provisions of the Companies Acts it was just that the company should be restored to the register.

Reporter: R.F.

1 Judgment of Miss Justice Laffoy delivered on the 22nd day of March, 2010.

2 1. In the petition in this matter, which was filed in the Central Office on 13 ^th December, 2006, Heather Wilson Topping (the petitioner) described herself as a member of Zota Manufacturing Limited (the company). In the grounding affidavit sworn by her on 21 ^st November, 2006 she described herself as a director of the company.

3 2. The company, which was incorporated on 6 ^th June, 1997 as a private company limited by shares, was dissolved on 19 ^th December, 2003 for failure to make annual returns. On the petition the petitioner seeks to have the company restored to the Registrar of Companies pursuant to s. 12B of the Companies (Amendment) Act 1982, as amended.

4 3. The petitioner has served the three statutory notice parties who require to be served under s. 12B(3), the Registrar of Companies, the Revenue Commissioners and the Minister for Finance. By letter dated 15 ^th January, 2010, the Revenue Commissioners have indicated that they have no objection to the application to restore the company on the basis of the petition served. As regards the Minister for Finance, the Chief State Solicitor, by letter dated 15 ^th January, 2010, indicated that the position of the Minister for Finance is that he has no objection to the company being restored to the register given that the petitioner (in a supplemental affidavit sworn on 12 ^th December, 2009) has averred that neither the Minister nor the State has, either directly or indirectly, intermeddled in any of the assets of the company and that the company makes no claim against the Minister arising from the provisions of the State Property Act 1954.

5 4. The problem on this petition is that the annual returns, that is to say, ten years annual returns in respect of the years 2001 to 2010 are still outstanding and, that being the case, the Registrar of Companies is not in a position to issue a letter to the effect that he has no objection to the company's restoration. As has been pointed out in a letter from the CRO dated 15 ^th February, 2010 it is a matter for the Court to determine whether "cause is shown to the contrary" justifying the non-inclusion of an order under s. 12B(5) in this case.

6 5. Insofar as is relevant for present purposes, section 12B(5) provides:

"The court shall, unless cause is shown to the contrary, include in an order under subs. (3) of this section, being an order made on the application of a member or officer of the company, a provision that the order shall not have effect unless, within 1 month from...