Rules of the Superior Courts (Winding-Up of Companies and Examinership) 2012.

• Statutory Instrument No.: 121/2012
• Published date: 13 April 2012

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act 1936 , section 67, by virtue of the powers conferred upon us by The Courts of Justice Act 1924 , section 36, and the Courts of Justice Act 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act 1961 , section 48), the Courts (Supplemental Provisions) Act 1961 , section 14, the European Communities (Rules of Court) Regulations 1972 ( S.I. No. 320 of 1972 ), and of all other powers enabling us in this behalf, do hereby make the following Rules of Court.

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 13th April, 2012.

Dated this 28th day of November, 2011.

Susan Denham

Nicholas Kearns

Joseph Finnegan

Elizabeth Dunne

John Edwards

Paul McGarry

Gerard Meehan

Patrick Groarke

Patrick O’Connor

Mary Cummins

Noel Rubotham

Geraldine Manners

I concur in the making of the following Rules of Court.

Dated this 11th day of April, 2012.

ALAN SHATTER

Minister for Justice and Equality

S.I. No. 121 of 2012

RULES OF THE SUPERIOR COURTS (WINDING-UP OF COMPANIES AND EXAMINERSHIP) 2012

1. —(1) These Rules, which may be cited as the Rules of the Superior Courts (Winding-Up of Companies and Examinership) 2012, shall come into operation on the 20th day of April 2012.

(2) These Rules shall be construed together with the Rules of the Superior Courts.

(3) The Rules of the Superior Courts as amended by these Rules may be cited as the Rules of the Superior Courts 1986 to 2012.

2. The Rules of the Superior Courts are amended:

(i) by the substitution for Order 74 of the Order set out in Schedule 1;

(ii) by the substitution for rule 1 of Order 75A of the following rule:

“1.(1) In this Order, unless the context or subject matter otherwise requires:

“the Act” means the Companies (Amendment) Act 1990 ;

“centre of main interests” shall be construed in accordance with the Insolvency Regulation;

“Examiner” shall include Interim Examiner;

“the Insolvency Regulation”, “liquidator in main proceedings”, “main proceedings”, “Member State”, “secondary proceedings” and “territorial proceedings” each has the same meaning as in Order 74.

(2) Words and expressions contained in this Order shall have the same meaning as in the Act and where necessary the same meaning as in the Companies Acts.

(3) In any case in which main proceedings have been opened in a Member State other than the State, the Examiner shall, where such document may be relevant to the main proceedings concerned, immediately send a copy of every petition, notice, report, affidavit or other document in the proceedings to the liquidator in the main proceedings by electronic mail or facsimile where possible or otherwise by registered prepaid post, in accordance with and for the purposes of Article 31 of the Insolvency Regulation.”;

(iii) by the substitution for rule 3 of Order 75A of the following rules:

“3.(1) An application under section 2 of the Act shall be grounded on the petition and the verifying affidavit of the party making such application and shall be heard and determined on affidavit unless the Court otherwise orders.

(2) The petition referred to in sub-rule (1) shall

(a) contain either:

(i) statements that the Insolvency Regulation applies to the proceedings and that the company’s centre of main interests (determined in accordance with the Insolvency Regulation) is situated in the State and the facts and grounds supporting each statement; or

(ii) statements that the Insolvency Regulation applies to the proceedings and that the company’s centre of main interests is situated in another specified Member State and the facts and grounds supporting each statement; or

(iii) a statement that the Insolvency Regulation does not apply to the proceedings, and the facts and grounds supporting that statement, and in such case, shall contain a statement of the reasons why the debtor is entitled to apply for the appointment of an examiner;

(b) contain a statement that, to the petitioner’s knowledge, no insolvency proceedings (within the meaning of Article 2 of the Insolvency Regulation) have been opened in respect of the company in any Member State (other than the State), or that such insolvency proceedings have been opened and if so, whether the proceedings which have been opened are main proceedings, territorial proceedings or secondary proceedings.

(3) Where insolvency proceedings have been opened in any other Member State, the affidavit verifying the petition shall exhibit a certified copy of the original decision appointing the liquidator in the main proceedings or any other certificate of the court having jurisdiction (as referred to in Article 19 of the Insolvency Regulation) and if such decision or certificate is not in one of the official languages of the State, a translation of that decision or certificate into the Irish or the English language certified by a person competent and qualified for the purpose.

3A.(1) This rule applies only where, in the petitioner’s belief, the centre of the company’s main interests is situated within the territory of a Member State other than the State.

(2) In a case to which this rule applies, the petition shall also:

(i) identify the place within the State where the company has an establishment (determined in accordance with Article 2(h) of the Insolvency Regulation);

(ii) where main proceedings have not been opened in another Member State, contain a statement as to which of the conditions referred to in Article 3(4)(a) or Article 3(4)(b) of the Insolvency Regulation is met and the facts and grounds supporting that statement.”;

(iv) by the insertion immediately following sub-rule (3) of rule 6 of Order 75A of the following sub-rule:

“(4) The moving party in an application under this rule shall in his or its affidavit grounding such application:

(a) verify that, to the moving party’s knowledge, no insolvency proceedings have been opened in respect of the related company in any Member State or Member States (other than the State), or that such insolvency proceedings have been opened and if so, whether those insolvency proceedings are main proceedings, territorial proceedings or secondary proceedings;

(b) in a case where, in that party’s belief, the centre of the related company’s main interests is situated within the territory of a Member State other than the State, identify the Member State concerned and the place within the State where, in the moving party’s belief, the company has an establishment (determined in accordance with Article 2(h) of the Insolvency Regulation).”;

(v) by the insertion immediately following rule 22 of Order 75A of the following rule:

“23.A request by a liquidator in main proceedings pursuant to Article 37 of the Insolvency Regulation for the conversion into winding-up proceedings of proceedings under the Act previously opened in the State in respect of a company shall be by notice of motion in the proceedings by the liquidator in the main proceedings. Such notice of motion shall be grounded upon an affidavit sworn by or on behalf of the liquidator in the main proceedings, which affidavit shall specify the reasons why it is alleged the conversion of the proceedings into winding-up proceedings would be in the interests of the creditors in the main proceedings. A copy of the notice of motion and a copy of the grounding affidavit and any exhibits thereto shall be served upon the company and the examiner not later than seven days before the return date. On the return date, the Court may make such orders or give such directions for the conduct and hearing of the application as seem appropriate.”;

(vi) by the substitution for the Forms numbered 1, 2, 5, 10 and 53 respectively in Appendix M of the Forms bearing the like numbers respectively set out in Schedule 2, and

(vii) by the insertion in appropriate sequence in Appendix M of the Form numbered 35A set out in Schedule 3.

Schedule 1

“Order 74 — WINDING-UP OF COMPANIES.

I. Preliminary

1. (1) In this Order and in the forms in Appendix M, unless the context or subject matter otherwise requires—

“the Act” means the Companies Act 1963 ;

“centre of main interests” shall be construed in accordance with the Insolvency Regulation;

“the company” means the company which is being wound up or in respect of which proceedings to have it wound up have been commenced;

“the Companies Acts” has the meaning assigned to it by the Interpretation Act 2005 ;

“creditor” includes a company or corporation or a firm or partnership and shall, where relevant, include reference to a liquidator in main proceedings;

“debt proved” includes any debt which shall have been duly admitted without proof;

“the Insolvency Regulation” means Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ L160/1 of 30 June 2000);

references without qualification to “Liquidator” shall, where appropriate, be construed as including “Official Liquidator”;

“liquidator in main proceedings” means a person performing, in relation to a debtor company, functions mentioned in Article 2(b) of the Insolvency Regulation in main proceedings opened in a Member State other than the State;

“main proceedings” means proceedings falling within the definition of insolvency proceedings in Article 2(a) of the Insolvency Regulation opened in accordance with Article 3(1) of the Insolvency Regulation and

(a) in relation to the State, set out in Annex A to the Insolvency Regulations under the heading “Ireland”, and

(b) in relation to another Member State, set out in Annex A to the Insolvency Regulation under the heading relating to that Member State;

“Member State” means a Member State of the European Union other than the Kingdom of Denmark;

“secondary proceedings” means proceedings referred to as secondary proceedings in Article...