Registrar of Companies v Greenway Ltd, Registrar of Companies v Kitchen Innovation Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Heslin
• Judgment Date: 15 January 2025
• Neutral Citation: [2025] IEHC 16
• Docket Number: [Record No. 2024/118 JR]

Between

Registrar of Companies

Applicant

and

Greenay Limited

Respondent

Between

Registrar of Companies

Applicant

and

Kitchen Innovations Limited

Respondent

[2025] IEHC 16

[Record No. 2024/118 JR]

[Record No. 2024/119 JR]

THE HIGH COURT

JUDICIAL REVIEW

Annual returns – Extension – Companies Act 2014 – Applicant challenging a second extension of the period in which the respondents could deliver annual returns – Whether the impugned orders were invalid

Facts: The District Court made orders extending, for a second time, the period in which the respondents, Greenway Ltd and Kitchen Innovation Ltd, could deliver annual returns to the applicant, the Registrar of Companies. Both respondents objected to the grant of the reliefs sought by the applicant and both advanced the same grounds in that regard: the applicant was precluded from resiling from the acceptance and registration of the annual returns, by virtue of her actions and/or acquiescence in the filing/registration of same; the annual returns were not filed pursuant to the District Court’s orders, as those only permitted the annual returns to be delivered; the applicant could not approbate and reprobate; having accepted delivery of and having registered the annual returns, the applicant was precluded from contending that they were not delivered in pursuance of the Companies Act 2014; having accepted delivery of and having registered the annual returns, the applicant was precluded from seeking any form of relief as would impugn her own actions; the High Court in exercise of its discretion should decline to grant any relief; the applicant could have, upon receipt of a document (including a return) which she deemed to be non-compliant with the Act, served upon the respondents a notice pursuant to s. 898 of 2014 Act and proceeded pursuant to the terms of the Act; the applicant could have declined to act in a manner deemed by her to be inconsistent with the statutory scheme; quashing the District Court orders would be futile and lack utility; to grant the relief sought would impugn the integrity of the Register maintained by the applicant and would be contrary to law; the Court lacked jurisdiction; and if the Court possessed jurisdiction to rectify the Register maintained by the applicant, the facts and circumstances fell short of such as would justify the exercise of such jurisdiction.

Held by Heslin J that: the respondents were ‘squarely’ on notice that the District Court lacked jurisdiction to make the orders in question, yet insisted on bringing the applications and led the District Court into error; the impugned orders were made ultra vires; the sole basis upon which the relevant returns were (i) delivered, (ii) accepted and (iii) registered was the presumptive validity of the said orders; registration of the returns and the making available of same to the public was a direct and inevitable consequence of the making of the ultra vires orders; to quash the impugned orders and to unwind the direct consequences of ultra vires orders would give rise to no injustice, nor present any practical difficulties; having been invalidated, the direct consequence is that the annual returns delivered pursuant to those orders must be treated as not having been validly made; the interests of justice required the grant of each of the reliefs sought by the applicant; and failure to grant that relief would be to permit the delivery and registration of annual returns contrary to the will of the Irish people as expressed through legislation enacted by the Oireachtas, specifically s. 343(5) of the 2014 Act.

Heslin J held that the applicant was entitled to the reliefs claimed at (i), (ii) and (iii) in each statement of grounds.

Relief granted.

Judgment of Mr. Justice Heslin delivered on the 15th day of January 2025

Introduction

1 . There is significant overlap as regards the facts in both cases and the legal issues which arise are identical. Both matters were heard together on 6 December, 2024 and concern orders made by the District Court extending, for a second time, the period in which the relevant company could deliver annual returns to the applicant (otherwise “the Registrar”). The difficulty with a second extension is clear when one refers to the relevant legislation.

The legislative position

2 . Section 343 of the Companies Act, 2014 (the ‘2014 Act’) requires a company to make an annual return no later than 56 days after the company's “annual return date” (which is defined in s.345 of the 2014 Act).

S. 343

3 . Section 343 (5) states:

“The court, on an application made (on notice to the Registrar) by a company, may, if it is satisfied that it would be just to do so, make an order extending the time for the purposes of subsection ( 2) or (3) in which the annual return of the company in relation to a particular period may be delivered to the Registrar; only one such order may be made as respects the particular period to which the return concerned of the company relates.” (emphasis added).

4 . Section 343 (7) makes clear that:

“…the court for the purposes of subsection (5) shall be the District Court for the District Court district where the registered office of the company is located or the High Court.” (emphasis added).

5 . I pause to say that the foregoing makes crystal clear that only one order may be made extending time for the delivery to the Registrar of an annual return.

O.93B

6 . Order 93B of the District Court Rules (“DCR”) provides for an application to Court under s.343 of the 2014 Act, which application must include a statement that no previous order has been made by the District Court under s.343(5) in respect of the company as regards the period concerned.

O.39 r.5

7 . Order 39 r.5 concerns “enlargement or abridgement of time” and states:

“(1) Subject to sub-rules (3) and (4), the Court may, on any terms it considers reasonable, enlarge or abridge any of the times fixed by these Rules, or by a prior order of the Court, for taking any step or doing any act in any civil proceedings.” (Emphasis added).

8 . Order 39 r.5 (3) goes on to state:

“(3) Sub-rules (1) and (2) do not apply:

(a) To any period of time fixed by an Act of the Oireachtas…”.

9 . Given the above, it is clear that O. 39 r (3) DRC cannot be employed to enlarge time pursuant to s. 343. In the manner presently examined, the respondents sought to do just this.

Relevant facts – Greenay Ltd

10 . Having touched on the statutory context, it is useful to look at certain relevant facts which emerge from the evidence, beginning with the factual position in relation to Greenay Ltd (“GYL”).

11 . GYL made an application to the District Court in accordance with s.343(5) of the 2014 Act seeking an order extending the time for the delivery to the Registrar of the company's annual return for the period 01 July 2020 to 30 June 2021. The said application came before the Court on 19 July, 2022.

Order extending time (30 June 2021 returns)

12 . The District Court made an order on 19 July, 2022 which, in relevant part, stated that the Court:

“BEING SATISFIED THAT no previous order has been made by the District Court under s.343 (5) of the Act in respect of the company as respects the period concerned.

BEING SATISFIED THAT it would be just to do so

HEREBY ORDERS pursuant to s.343 (4) of the Companies Act, 2014 that the time within which the annual return of the company is relation to the period of 01/07/2020 TO 30/06/2021 may be delivered to the Registrar of Companies be and is hereby extended up to and including 16/08/2022…”

13 . It is common case that GYL delivered the annual return in question to the Registrar in accordance with the extended period granted by the District Court's 19 July, 2022 order. In other words, the foregoing is an example of the provisions of s. 343 being invoked and applied appropriately.

14 . On 25 May 2023, GYL made an application to the District Court pursuant to s.343 (5) of the 2014 Act for an order extending time for delivery of its annual return for the year to 30 June, 2022.

25 July 2023 — First Order extending time (30 June 2022 returns)

15 . On 25 July, 2023, the District Court made an order extending time by up to 28 days, namely, up to and including 22 August, 2023.

16 . It is common case that GYL failed to deliver the relevant Return within the said extended period.

22 November 2023 — Second application to extend time (30 June 2022 returns)

17 . On 22 November, 2023, GYL made a further application to the District Court in relation to the same annual return. The relevant ex parte notice made clear that GYL was seeking:

“…an Order pursuant to Order 39 Rule 5 of the District Court Rules enlarging the times made in the Order dated 25 July, 2023 for 3 days or more extending the time for the purpose of s.343(2) of the Companies Act, 2014 in which the annual return of the company in relation to the period 9 November, 2022 together with the accounts for the period 1 July, 2021 to 30 June, 2022 may be delivered to the Registrar of Companies up to 8 ^th December, 2023”.

18 . I pause to say that, on any objective analysis, this was a second application for an order extending time in relation to the same returns. It was an application made by GYL despite the explicit provisions of s.343(5) which, in relevant part, states that “only one such order may be made as respects a particular period to which the return concerned of the company relates”.

19 . Insofar as this second application purported to rely on O.39 r.5 of the DCR, it will be recalled that O.39, r.5 (3) made clear that the District Court had no power to enlarge “any period of time fixed by an Act of the Oireachtas”.

20 . It is common case that the learned District Court judge made clear on 22 November, 2023 that, if the applicant objected to the application, the Registrar should be represented in Court.

23 November 2023 —...