Richmond Building Products Ltd v Soundgables Ltd

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 04 November 2004
• Neutral Citation: [2004] IEHC 382
• Court: High Court
• Docket Number: [2001 No. 739 S]
• Date: 04 November 2004

[2004] IEHC 382

THE HIGH COURT

RECORD NO. 739S/2004

RICHMOND BUILDING PRODUCTS LTD v. SOUNDGABLES LTD T/A MUNSTER RADON PROTECTION & ORS

BETWEEN

RICHMOND BUILDING PRODUCTS LIMITED

PLAINTIFF

AND

SOUNDGABLES LIMITED TRADING AS MUNSTER RADON PROTECTION, JAMES BUTLER, JOHN O'KEEFFE AND GERRY SPILLANE

DEFENDANTS

Citations:

COMPANIES (AMDT) ACT 1982 S12

COMPANIES (AMDT)(NO 2) ACT 1999 S46

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

COMPANIES (AMDT) ACT 1982 S12(3)

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

COMPANIES (AMDT) ACT 1982 S12(C)(1)

COMPANIES (AMDT) ACT 1982 S12(B)(1)

COMPANIES (AMDT) ACT 1982 S311(A)

COMPANIES ACT 1990

COMPANIES (AMDT)(NO 2) ACT 1999 S49

COMPANIES (AMDT) ACT 1992

AMANTISS ENTERPRISES LTD, RE 2000 2 ILRM 177

TYMANS LTD V CRAVEN 1952 2 QB 100

BROWN BAYLES STEELWORKS LTD, RE 1905 21 TLR 374

COMPANIES ACT 1880 S7(5)

COMPANIES ACT 1880 S7

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

MORRIS V HARRIS 1927 AC 252

RUGBY AUTO ELECTRIC SERVICES LTD, IN RE UNREP ROXBURGH 14.12.1959 (UK)

HUNTINGTON POULTRY LTD, IN RE 1969 1 AER 328

LINDSAY BOWMAN LTD, IN RE 1969 3 AER 601

PRICELAND LTD, IN RE 1997 BCLC 467

DONALD KENYON LTD, IN RE 1956 3 AER 596

EAST END DWELLINGS CO LTD V FINSBURY COUNCIL 1951 2 AER 587

COMPANIES (AMDT) ACT 1982 S12(C)(2)

COMPANIES (AMDT) ACT 1982 S12(B)

COMPANIES (AMDT) ACT 1982 S12(C)

Synopsis:

- [2005] 1 ILRM 497

the plaintiff sought a sum against the defendants for goods sold and delivered to the first defendant during a period when it had been struck off the register. It was restored subsequently. He had obtained judgment against the first and third defendants and then sought, by plenary action relief against the directors of the company, the second and fourth defendants.

Held by Finnegan P in holding that the plaintiff failed in his claim against the second and fourth defendants that the order restoring the company had the effect of releasing directors from the personal liability which they had incurred while the company was struck off.

Reporter: P.C.

1 Finnegan P. delivered on the 4th day of November 2004

2 By Summary Summons dated the 28 ^th August 2001 the Plaintiff sought against the Defendants the sum of £39,566.83 together with interest in respect of goods sold and delivered. The goods were sold to the first named Defendant in the period 26 ^th August 2000 to 31 ^st December 2000. However the first named Defendant was struck off the Register of Companies on the 25 ^th August 2000 and restored to the Register on the 20 ^th April 2001. Accordingly at the dates relevant to this claim it was not in existence. The Plaintiff has obtained judgment against the first named Defendant and the third named Defendant the action being sent for plenary hearing as against the second named Defendant and the fourth named Defendant and it is the claim against those Defendants with which I am concerned.

3 Taking it that had the first named Defendant not been restored to the Register the Plaintiff could maintain a claim against the Directors what is the effect of the restoration of the first named Defendant to the Register on that claim? The Plaintiff contends that the claim survives while the Defendant relies on the provisions of the Companies (Amendment) Act 1982section 12 as substituted by the Companies (Amendment) (No. 2) Act 1999section 46 which provides in short that on restoration the company shall be deemed to have continued in existence as if the name had not been struck off.

4 The Companies (Amendment) Act 1982section 12 as substituted by the Companies (Amendment) (No. 2) Act 1999section 46 at 12B(3) provides in relation to a company struck off pursuant to section 12(3) to be restored by Order of the Court the effect of such Order being that the company shall be deemed to have continued in existence as if its name had not been struck off. Where a company is struck off under section 12A(3) an application can be made to the Registrar of Companies pursuant to section 12C(1) for the restoration of the company. While the matter proceeded before me upon the basis that the application to restore was made pursuant to section 12B(3) documentation introduced in evidence suggests that the application may in fact have been made under section 12C(1). This it seems to me makes no difference to the issue before me as if the application to restore was made under the latter provision the company is nonetheless deemed to have continued in existence as if its name had not been struck off. This is so notwithstanding the provisions of section 12B(1) which provides in relation to an application pursuant to section 12(3) as follows —

"The liability, if any, of every director, officer and member of a company the name of which has been struck off the Register under section 12( 3) or 12A(3) of this Act shall continue and may be enforced as if the company had not been dissolved."

5 This provision I am satisfied is intended to operate where the company is not restored and in any event affects a director, officer or member qua director, officer or member and does not relate to liability incurred by any such person by purporting to act in the name of the company while the company was dissolved.

6 Again it may be that the restoration was effected pursuant to the provisions of section 311A as inserted by the Companies Act 1990and amended by the Companies (Amendment)(No. 2) Act 1999section 49 by an application to the Registrar. Again the effect will be the same as a company so restored is deemed to have continued in existence as if its name had not been struck off.

7 The effect of such an Order pursuant to the Companies (Amendment) Act 1992 was considered in Re Amantiss Enterprises Limited (2000) 2 ILRM 177. For the Petitioner in that case it was argued that the effect of the statutory provision was to validate all acts done by the company between its dissolution and its restoration. For the Notice Parties it was submitted that the effect of the section was merely to restore the status of incorporation to the company as to its identity but did not have the effect of validating retrospectively acts done between dissolution and restoration to the Register. The Court held in favour of the Petitioner. In his judgment O'Neill J. relied upon Tymans Limited v Craven (1952) 2 Q.B. 100 the majority decision in which was relied upon by the Petitioner. He cited with approval a passage from the judgment of Evershed M.R....