Investment Limited Partnerships Act, 1994
|
Appointment and powers of inspectors. |
26.—(1) Without prejudice to the powers of the Bank under this Act, the Bank may apply to the court and the court may, if satisfied of the matters set forth in subsection (2), appoint one or more inspectors to investigate the affairs of that investment limited partnership and, where necessary, any associated undertaking and to report thereon in such manner as the court directs. | |
(2) The court may appoint an inspector under this section where it is satisfied that there are circumstances suggesting that— | ||
(a) limited partners are being oppressed or their interests as limited partners disregarded, | ||
(b) limited partners are not being given all the information relating to the affairs of the investment limited partnership which they might reasonably expect, | ||
(c) the affairs of the investment limited partnership are being conducted with the effect of defrauding its creditors or the creditors of any other person or in an unlawful manner, | ||
(d) there has been persistent default by the investment limited partnership, its general partner or custodian in complying with the requirements of this Act, | ||
(e) persons connected with the formation or management of an investment limited partnership have in connection therewith been guilty of fraud, misfeasance or other misconduct towards it or towards the limited partners, or any one of them, | ||
(f) the appointment of an inspector is otherwise required in the interests of the proper and orderly regulation of investment limited partnerships. | ||
(3) The court may consider matters in exercising its discretion under this provision notwithstanding that they relate to events occurring outside the State. | ||
(4) Before applying to the court to appoint an inspector under this section, the Bank may, if it is of the opinion that it would not be prejudicial to the interests of limited partners or creditors of the investment limited partnership, notify the general partner and custodian of the investment limited partnership concerned in writing of the action which it proposes to take and of the grounds on which it proposes to take and, in such case, the general partner shall within such period as the Bank may set out in the notification, be entitled to give to the Bank a statement in writing explaining its activities. | ||
(5) Where an inspector appointed under subsection (1) thinks it necessary for the purposes of his investigation to investigate the affairs of any other investment limited partnership or any body corporate or present or former associated undertaking of the investment limited partnership he shall apply to the court for an order to widen the scope of his investigation, which order the court may make if it thinks it necessary for the purposes of the investigation, and if granted such order, shall have power to do so, and shall report on the affairs of the investment limited partnership or body corporate or present or former associated undertaking so far as he thinks the results of the investigation are relevant to the investigation of the first mentioned investment limited partnership. | ||
(6) Where the court appoints an inspector under subsection (1) it may, from time to time, give such directions as it thinks fit, whether to the inspector or otherwise with a view to ensuring that the investigation is carried out as efficiently and as cost effectively as is practicable in the circumstances. | ||
(7) (a) It shall be the duty— | ||
(i) of the general partner and custodian, of all officers and agents thereof, and of all agents of the investment limited partnership the affairs of which are being investigated under subsection (1), including persons outside the State, and | ||
(ii) of any other person, including those being investigated under subsection (5), and including persons outside the State, who the inspector considers is or may be in possession of any information concerning the affairs of an investment limited partnership, | ||
to produce to an inspector appointed under subsection (1) all books, accounts, deeds, records or other documents of, or relating to, the business of an investment limited partnership being investigated under subsection (1) which are in their power, possession or procurement to attend before the inspector when required to do so at a specified place and time and otherwise to give to him all assistance in connection with the investigation which they are reasonably able to give. | ||
(b) The inspector may examine on oath or by written interrogatories on oath the custodian, general partner, officer and agents thereof, and all agents of the investment limited partnership being investigated and any such person as is mentioned in subsection (a) of this provision in relation to its affairs and may— | ||
(i) administer an oath accordingly, | ||
(ii) reduce the answers of such person to writing and require that person to sign them. | ||
(c) If an inspector has reasonable grounds for believing that a custodian, general partner, officers or agent thereof, or an agent of the investment limited partnership being investigated or other person being investigated or other person being investigated under subsection (5) maintains or has maintained either at that time or at any time in the past, an account of any description in a credit institution or an account with any other financial institution, including holdings of investment instruments, whether alone or jointly with another person and whether in the State or elsewhere, into or out of which has been paid any money which— | ||
(i) had resulted from or been used in the financing of any transaction, arrangement or agreement relating to the business of the investment limited partnership, | ||
(ii) has been in any way connected with any act or omission, or series of acts or omissions, which on the part of that custodian, general partner, officers or agent thereof, or an agent of the investment limited partnership, constituted misconduct (whether fraudulent or not) towards an investment limited partnership or any client or creditor of the investment limited partnership, | ||
the inspector may require the general partner, officers or agents thereof, or the agent of the investment limited partnership to produce to him all documents in his possession or under his control relating to that account and in this subsection “credit institution account” includes an account with any person exempt by virtue of section 7 (4) of the Central Bank Act, 1971 from the requirement of holding a licence granted under section 9 of that Act. | ||
(d) If any general partner, custodian, all officers and agents thereof and any agents of the investment limited partnership, and of all agents of the investment limited partnership or any such person as is mentioned in this subsection refuses to produce to the inspector any book or document which it is his duty under this section to produce, refuses to attend before the inspector when required to do so, or refuses to answer any question put to him by the inspector with respect to the affairs of the investment limited partnership or other person mentioned in this subsection, as the case may be, the inspector may certify the refusal under his hand to the court and the court may thereupon enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and any statement which may be offered in defence, make any order or direction as it thinks fit including a direction to the person concerned to attend or re-attend before the inspector or produce particular books or documents or answer a particular question put to him by the inspector, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the inspector. | ||
(e) In this section, any references to officers or agents shall include past as well as present officers and agents, as the case may be, and “agents”, in relation to an investment limited partnership shall include a general partner, custodian, the bankers, accountants, solicitors, auditors and the financial and other advisors of the investment limited partnership. | ||
(8) (a) The expenses of and incidental to an investigation and the fees incurred by an inspector appointed by the court under subsection (1) shall be defrayed by the Bank but the court may direct that any person dealt with in the report shall be liable, to such extent as the court may direct, to repay the Bank any expenses or fees incurred. | ||
(b) Without prejudice to subsection (8) (a) of this section, any person who is— | ||
(i) convicted on indictment of an offence on a prosecution instituted as a result of an investigation, | ||
(ii) ordered to pay damages or restore any property in proceedings brought as a result of an investigation, or | ||
(iii) awarded damages or to whom property is restored in proceedings brought as a result of an investigation, | ||
may, in the same proceedings, be ordered to repay all or part of the expenses and fees, referred to in subsection (8) (a) of this section and interest as appropriate, to the Bank or to any person on whom liability has been imposed by the court under that subsection provided that, in the case of a person to whom paragraph (iii) of this subsection relates, the court shall not order payment in excess of one-tenth of the amount of the damages awarded or of the value of the property restored and interest as appropriate as the case may be, and any such order shall not be executed until the person concerned has received his damages or the property has been restored, as the case may be. | ||
(c) The report of an inspector may, if he thinks fit, and shall, if the court so directs, include a recommendation as to the directions, if any, which he thinks appropriate, in the light of his investigation, to be given under subsection (8) (a) of this section. | ||
(9) (a) An inspector appointed under this section may, and shall if the court so requires, make an interim report to the Court, and, on the conclusion of his investigation, but he may at any time in the course of the investigation, without making an interim report, inform the court of matters coming to his knowledge as a result of the investigation tending to show that an offence has been committed. | ||
(b) On a report being presented to it under this section the court shall— | ||
(i) forward a copy of any such report to the Bank, | ||
(ii) if it thinks fit, furnish a copy thereof, to the general partner and the investment limited partnership and its auditors, and | ||
(iii) if it thinks fit— | ||
(a) furnish a copy thereof, on request and on payment of such fees as it may fix, to any other person who is a member of the investment limited partnership or a member of any other body dealt with in the report by virtue of this section or whose interests as a creditor or client of the investment limited partnership or of any other such body appear to the court to be affected, and | ||
(b) cause any such report to be printed and published. | ||
(c) Where the court thinks so proper it may direct that a particular part of a report made by virtue of this section be omitted from a copy forwarded or furnished under subsection (9) (b) (ii) or (9) (b) (iii) (a) of this section or from the report as printed and published under subsection (9) (b) (iii) (b). | ||
(10) (a) Having considered a report under subsection (9) of this section, the court may make such order as it thinks fit in relation to matters arising from that report including— | ||
(i) an order of its own motion for the winding up of an investment limited partnership, | ||
(ii) an order for the purpose of remedying any disability suffered by any person whose interests were adversely affected by the conduct of the affairs of the investment limited partnerships provided that, in making any such order, the court shall have regard to the interests of any other person who may be adversely affected by the order. | ||
(b) If, in the case of any investment limited partnership liable to be wound up under this Act, it appears to the Bank from— | ||
(i) any report made under subsection (9) of this section as a result of an application by the Bank under subsection (1), or | ||
(ii) any report made by an inspector appointed by the Bank under this Act, or | ||
(iii) any information or document obtained by the Bank under this Act, | ||
that a petition should be presented for the winding up of an investment limited partnership, the Bank may, unless the investment limited partnership is already being wound up by the court, present a petition for it to be so wound up if a court thinks it just and equitable for it to be so wound up. |