Re New Ad Advertising Company Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 14 November 2005
• Neutral Citation: [2006] IEHC 19
• Docket Number: No. 277 COS /2005
• Court: High Court
• Date: 14 November 2005

[2006] IEHC 19

THE HIGH COURT

No. 277 COS /2005

NEW AD ADVERTISING COMPANY LTD, IN RE

IN THE MATTER OF NEW AD ADVERTISING COMPANY LIMITED

AND

IN THE MATTER OF THE COMPANIES ACTS, 1963 -2003

COMPANIES (AMDT) ACT 1982 S12B(3)

COMPANIES (AMDT)(NO 2) ACT 1999 S46

COMPANIES ACT 1963 S205

BLOOMBERG DEVELOPMENTS LTD, IN RE 2002 2 IR 613

COMPANIES (AMDT) ACT 1982 S12B(6)

COMPANIES (AMDT) ACT 1982 S12

COMPANIES (AMDT) ACT 1982 S12A(5)

COMPANY LAW

Register

Restoration - Petitioner applying to have company restored to register to enable prosecution of s 205 application - Company struck off register for failure to file returns - Whether just to restore company to register - Goode v Philips Electrical (Ireland) Ltd [2002] 2 IR 613 distinguished - Companies (Amendment) Act 1982 (No 10), s 12B(3) - Leave to restore granted (2005/277COS - Laffoy J - 14/11/2005) [2006] IEHC 19 Re New Ad Advertising Co Ltd

Facts: the company was struck off the register in 1999 for failure to file annual returns from 1994 onwards. The petitioner, in his capacity as a member and creditor of the company, applied to have the company restored to the Register pursuant to section 12B(3) of the Companies (Amendment) Act 1982. The notice party contended that the petitioner did not have locus standi to bring the application and that the sole purpose of the application was to enable the petitioner to prosecute an unmeritorious application pursuant to section 205 of the Companies Act 1963.

Held by Laffoy J in making an order restoring the company to the Register that it would be unjust to make it impossible for the petitioner to pursue the remedies he sought in the section 205 application.

That a limited discretion was given to the court in section 12B(5) of the Act of 1982 and sub-section 6 was not more rigorous than sub-section 5 in this respect. In relation to both sub-sections, the legislative intent was clear which was to ensure that the striking-off mechanism as a deterrent against breach of company and tax law was not devalued which would be the case if a company could be restored to the register without the breach which gave rise to its striking-off being remedied.

Reporter: P.C.

Miss Justice Laffoy

1 New Ad Advertising Company Limited (the Company) was incorporated on 11^th March, 1998. On 22^nd January, 1999 the Company was struck off the Register of Companies for failure to deliver annual returns for the years from 1994 onwards.

2 On this application, Vincent Kelly (the petitioner) seeks an order pursuant to s. 12B(3) of the Companies (Amendment) Act,1982 (as inserted by s. 46 of the Companies (Amendment) (No. 2) Act, 1999) restoring the Company to the Register of Companies. The petitioner makes the application in his capacity as a member and a creditor of the Company. It is not in issue that the petitioner is a member of the Company. However, it is disputed by George McNulty, who is a notice party to the application, that he is a creditor of the Company. On the evidence before the court I am satisfied that he is a creditor of the Company on foot of two orders of this court made in s. 205 proceedings in relation to the Company brought by the petitioner (Record No. 1995 No. 143 COS), namely:

3 (1) an order dated 6^th November, 1995 made by McCracken J. in which the respondent in the s. 205 application, which was identified as the Company, was ordered to pay the petitioner's costs of the motion on foot of which the order was made, when taxed and ascertained; and

4 (2) an order made by Geoghegan J. on 25^th March, 1996 in which the respondent, again identified as the Company, was ordered to pay the petitioner's costs of the motion on foot of which the order was made, when taxed and ascertained.

5 Accordingly, I am satisfied that the petitioner haslocus standi to bring this application, both as a member of the Company and as a creditor of the Company.

6 The petitioner contends that he was not a director of the Company when it was struck off. He acknowledges that he was a director of the Company when it was originally incorporated in 1988, but he has averred that when Mr. McNulty acquired a 50% shareholding in the Company later in 1988, he ceased to be a director. The electronic record of the Companies Registration Office (CRO) still records him as a director of the Company. However, the most recent annual return submitted by the Company to the CRO, which related to the year ended 31^st December, 1993, showed Mr. McNulty and Alex Wilson as the only directors. That return was signed by both Mr. McNulty and Mr. Wilson. Mr. Wilson became a director in February, 1992 in place of one Martin Barry, who was removed as a director according to the Form B10 (Notice of Change of Directors), which was lodged in the CRO in June, 1992. The Form B10 was signed by both Mr. McNulty and Mr. Wilson. On the basis of the evidence before the court, for the purposes of this application, I am assuming that the petitioner is not a director of the Company.

7 The reason why the petitioner wants to have the Company restored to the Register is to enable him to prosecute the s. 205 application. Those proceedings have had a chequered history. The petition was presented on 15^th June, 1995. It eventually came on for hearing on 24^th and 25^th June, 1997 before Costello P. There was no appearance on behalf of the Company or on behalf of Mr. McNulty. On 1^st July, 1997 Costello P. made an order in favour of the petitioner, declaring, inter alia, that the petitioner was a 10% shareholder in the Company and directing Mr. McNulty to purchase the petitioner's shares in the Company for the sum of IR£67,200, Mr. McNulty appealed the order of Costello P. to the Supreme Court and, by order made on 26^th March, 1998, the Supreme Court allowed the appeal and discharged the order of the High Court. It was further ordered that Mr. McNulty should be joined as a notice party to the proceedings.

8 In February, 1999 the s. 205 proceedings were reconstituted in this court and an amended petition and amended points of claim were filed. Mr. McNulty, as notice party in the s. 205 proceedings, delivered points of defence on 1^st November, 1999. It is alleged by Mr. McNulty that there has been delay on the part of the petitioner in prosecuting the s. 205 application. The matter was listed for hearing on 19^th November, 2003. However, the hearing was adjourned by consent because Mr. McNulty was indisposed. The matter was listed again for hearing on 6^th July, 2004. At the call over of the list on the previous Thursday, 1^st July, 2004, counsel for the notice party informed the court that the Company had been struck off the Register in January, 1999. On that occasion, I directed that the proceedings could not proceed because the Company was no longer registered. I adjourned the matter to enable the petitioner to have the Company restored to the Register. The hearing is now listed for 13^th...