S.I. No. 616/2015 - Superior Courts (Companies Act 2014) (No. 2) 2015.

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 5th January, 2016.

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 ), the Companies Act 2014 , section 564 and of all other powers enabling us in this behalf, do hereby make the following Rules of Court.

Dated this 29th day of October, 2015.

Sean Ryan

Mary Laffoy

Peter Kelly

Deirdre Murphy

Gerard Meehan

Stuart Gilhooly

Michael Kavanagh

Noel Rubotham

John Mahon

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

Dated this 22nd day of December, 2015.

FRANCES FITZGERALD

Minister for Justice and Equality

S.I. No. 616 of 2015

RULES OF THE SUPERIOR COURTS (COMPANIES ACT 2014) (NO. 2) 2015

1. (1) These Rules, which may be cited as the Rules of the Superior Courts (Companies Act 2014) (No. 2) 2015, shall come into operation on the 30th day of December 2015.

(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 2015.

2. The Rules of the Superior Courts are amended:

(i) by the substitution therein for rule 38 of Order 74 of the following rule:

“38.(1) An application to have the liquidator’s remuneration fixed by the Court in accordance with section 646(2)(d) of the Act shall be by motion of the liquidator-

(a) on notice to the committee of inspection or,

(b) where no committee of inspection exists, on notice to such creditor or creditors as is or are directed by the Court, or

(c) in a members’ voluntary winding up, on notice to such member or members, or other person or persons, as is or are directed by the Court,

supported by an affidavit setting out or exhibiting and verifying the particulars required by section 646(3) of the Act and such other evidence (if any) as the Court shall require.

(2) The particulars required to be furnished for the purpose of section 647(3)(a) of the Act:

(a) shall be such particulars as are reasonably necessary to assess whether the amount sought conforms to the terms of any agreement referred to in section 646(2)(a) of the Act; any approval referred to in section 646(2)(b) or (c) of the Act or, as the case may be, any order referred to in section 646(2)(d) of the Act,

(b) without prejudice to the generality of paragraph (a) the foregoing, shall:

(i),in the case of remuneration expressed in accordance with section 646(1)(a) of the Act, include the basis of calculation of any relevant percentage;

(ii) in the case of remuneration expressed in accordance with section 646(1)(b) of the Act, include the amount of time expended in the conduct of the winding up by each person in respect of whom a charge is sought to be imposed and the rate applied to each such person;

(iii) in the case of remuneration expressed in accordance with section 646(1)(c) of the Act, include the basis of calculation by reference to the relevant method or thing; and

(iv) include the amounts of any outlay sought to be charged and the amount of Value Added Tax, if any, sought to be charged on any item.

(3) An application to vary the terms of a liquidator’s entitlement to remuneration under section 646(5) of the Act shall be by motion on notice in like manner as for an application referred to in sub-rule (1).

(4) An application by the liquidator for payment in accordance with section 647(2)(d) of the Act (in any case in which there is no agreement to refer any dispute as to the amount of remuneration to arbitration in accordance with section 648(1) of the Act) shall be by motion of the liquidator on notice to the committee of inspection (if any) or otherwise on notice to such creditor or creditors as is or are directed by the Court, supported by an affidavit setting out or exhibiting and verifying such particulars as were furnished to the creditors or members, as the case may be, in accordance with sub-rule (2).

(5) An application by a creditor or member to the Court in accordance with section 648(5) of the Act to review the amount agreed or allowed at the liquidator’s remuneration shall be by motion of the creditor or member concerned on notice to the liquidator and to such other person or persons as is or are directed by the Court.”;

(ii) by the substitution therein for sub-rule (2) of rule 42 of Order 74 of the following sub-rule:

“(2) The chairperson shall for the purpose of section 700(1)(b) of the Act in every case cause to be made and kept and shall sign a list of creditors, contributories or members present at the meeting in the form included in Form No 17 and the chairperson’s report to the Court of the result of the meeting shall be in the Form No 17.”;

(iii) by the substitution therein for rules 86 and 87 of Order 74 of the following rules:

“86.The declaration of solvency referred to in section 580(2) of the Act shall be in the Form No. 41. The report referred to in section 580(4) of the Act shall be in the Form No. 41A.

87. (1) The statement referred to in section 584(2) of the Act shall be in the Form No 42.

(2) A notice referred to in section 643(3) of the Act shall be in the Form No 51.

(3) A notice referred to in section 643(5) of the Act in the case of an appointment other than an appointment made by the Court shall be in the Form No 52.

(4) A notice referred to in section 669(2) of the Act shall be in the Form No 53.”;

(iv) by the insertion therein following rule 93 of Order 74 of the following rule:

“94.(1) The first report required by section 682(2) of the Act shall be in the Form No 54 and shall include:

(i) a summary of the proceedings in, and position of, the winding up to date;

(ii) particulars of each director of the company (as that expression is to be read in accordance with section 683(1)(b) of the Act),

(iii) in respect of each director of the company (as that expression is to be read in accordance with section 683(1)(b) of the Act), such information as the liquidator considers may be relevant to an assessment of whether:

(a) the person concerned has acted honestly and responsibly in relation to the conduct of the affairs of the company in question, whether before or after it became an insolvent company,

(b) he or she has, when requested to do so by the liquidator, cooperated as far as could reasonably be expected in relation to the conduct of the winding up of the insolvent company, and

(c) there is no other reason why it would be just and equitable that he or she should be subject to the restrictions imposed by an order under section 819(1) of the Act.

(2) Each subsequent report required by the Director in accordance with section 682(2) of the Act shall in its format conform as far as possible to Form 54 and contain such further information mentioned in sub-rule (1) as has come to the attention of the liquidator since the last such report.”, and

(v) by the substitution therein for rule 29 of Order 75 of the following rule:

“29.In any proceedings in the Court to which section 863 of the Act applies, the Registrar of the Court shall send to the Registrar of Companies by registered prepaid post or by such other means, including electronic transmission, as the Registrar of the Court may agree with the Registrar of Companies the appropriate particulars prescribed for the purposes of that section of any order made required by the Companies Act 2014 (Part 14 Prescribed Officers) Regulations 2015 ( S.I. No. 216 of 2015 ).”

3. (1) The forms numbered as Forms No. 17, 41 and 41A set out in the Schedule shall be substituted for the forms bearing the like number s respectively in Appendix M to the Rules of the Superior Courts.

(2) The forms numbered as Forms Nos. 51, 52, 53 and 54 set out in the Schedule shall be added to Appendix M to the Rules of the Superior Courts immediately following Form No. 50.

Schedule

No. 17.

O. 74, r. 42

CHAIRMANS LIST OF PERSONS ATTENDING AND REPORT OF RESULT OF MEETING.

_______

[Title as in Form No. 1]

I,....... the person appointed by the Court to act as chairman of a meeting of the creditors (or contributories or members) of the above named company summoned by advertisement (or notice) dated the....... day of......., 20.. and held on the....... day of......., 20....... at....... do hereby report to the Court the result of such meeting as follows:

The said meeting was attended, either personally or by proxy by the following creditors whose claims against the said company have been allowed in the amount set out opposite the name of each [or by contributories holding the number of shares in the said company set out opposite the name of each and entitled by the regulations of the company, to the number of votes set out opposite the name of each].

*Creditors attending

* Contributories/members attending

The question submitted to the said meeting was, whether the creditors [or contributories or members] of the said company approved of the proposal of the Liquidator that (as the case may be) and whether they wished that such proposal should be adopted and carried into effect.

The said meeting was unanimously of opinion that the said proposal should [or, should not] be adopted and carried into effect.

or

The result of the voting upon such question was as follows:— The undermentioned creditors [or contributories or members] voted in favour of the said proposal being adopted and carried into effect:—

The undermentioned creditors [or contributories] voted against the said proposal being adopted and carried into effect:—

The undermentioned creditors [or contributories] did not vote on the said proposal:—

Dated

(Signed)

Chairman.

*delete where inapplicable

No. 41

O. 74, r. 86

DECLARATION OF SOLVENCY.

THE COMPANIES ACT 2014.

MEMBERS VOLUNTARY WINDING UP.

DECLARATION OF SOLVENCY INCLUDING STATEMENT OF TOTAL ASSETS AND LIABILITIES AND REPORT OF AN INDEPENDENT PERSON.

Pursuant to section 580(2), Companies Act 2014 and Order 74, rule 86, Rules of the Superior Courts 1986

(Form 41, Appendix M)

We make this declaration conscientiously believing the same to be true.

Signatures..........................

..........................

APPENDIX

Report of.................., a person referred to in Section 580(4) of the Companies Act 2014 , made on the...... day of......... 20...... (in form No. 41A)

_______

No. 41A

O. 74, r. 86

Report of.................., a person referred to in Section 580(4) of the Companies Act 2014

To: (Insert full name of the company)

1. I have examined the declaration of .. and ..*and., directors of the above-named company (the “company”), made on the...... day of......... 20.......

2. I am, as at the date of making of this report *qualified to be appointed as *continue to be the statutory auditor of the company, by reason of (identify basis of qualification). I am aware of the legal responsibilities of directors and of statutory auditors.

3. (Set out concisely the inquiries made into the company’s affairs and any explanations sought from the directors of the company and given by them for the purposes of preparing the report).

4. (Set out concisely any further relevant documents, facts or information relied on in reaching the opinion given below and the source of such facts or information; copies of any further documents relied on should be scheduled to the report).

5. Having regard to the inquiries I have made into the company’s affairs, *the explanations provided to me by the directors of the company of matters raised with them for the purposes of preparing this report, *and the further documents, facts and information mentioned at paragraph 4 above,

I confirm my opinion that the declaration referred to at paragraph 1 above given pursuant to section 580(4) of the Companies Act 2014 is not unreasonable

*Schedule of further relevant documents relied on

Made on the...... day of......... 20......

Signed:.

[Print name and address]

_______

No. 51

O. 74, r. 87

Notice of removal of liquidator

Section 643(3), Companies Act 2014

Name of Company (in voluntary liquidation)

Company number:.....

Notice is hereby given to the Registrar of Companies, regarding the removal of ..as the liquidator to the above-named company.

Chairperson: [Name in block capitals]

Signature:

Date:..

The meeting at which the liquidator was removed was held on.

_______

Form No. 52

O. 74, r. 87

Notice of appointment of liquidator(s) following removal of previous liquidator

Section 643(5), Companies Act 2014

Name of Company (in voluntary liquidation)

Company number:....

I hereby give notice to the Registrar of Companies, that I have been appointed Liquidator to the above-named company, and that I was appointed by *resolution of the company *(specify other means of appointment, e.g. order of the High Court) on..

Liquidator [Name in block capitals]

Signature:

Date:..

_______

Form No. 53

O. 74, r. 87

Notice of annulment of winding up

Section 669(2), Companies Act 2014

Name of Company

Company number:....

Notice is hereby given to the Registrar of Companies, that the winding-up of the above-named company has been annulled by order of the High Court made on..

Applicant for annulment [Name in block capitals]

Capacity:..

Signature:

Date:..

No. 54

O. 74, r. 94

LIQUIDATOR’S REPORT UNDER SECTION 682 OF THE COMPANIES ACT 2014

Please indicate if this is the first, second, etc. or final Report filed for the above company: ______________

Section 1: LIQUIDATOR DETAILS

(Question 1 to be completed in every Report. Questions 2 to 9 to be completed as part of the first Report and in every subsequent Report where a change in details arises.)

1. Name of Liquidator: ______________

2. Name of Liquidator’s firm (if applicable): ______________

3. Address of Liquidator: ______________

4. If you are a member of a professional body, please state which one:

______________

5. Liquidation Type (please tick one):fficial Liquidation:

Creditors’ Voluntary Liquidation: Official Liquidation:

6. If a Creditors’ Voluntary Liquidation, were you the members’ nominee-

Yes: No:

7. Date of your appointment as Liquidator:

8. Name of Liquidator’s staff member with day-to-day responsibility for the Liquidation (where applicable):

9. Contact Details for (please tick one):

the Liquidator: Staff Member:

Telephone Number(s): ______________ Fax Number: ______________

E-mail Address: ______________

Section 2: COMPANY DETAILS

(To be completed as part of the first Report and every subsequent Report where a change in details arises)

10. Business/Trading Name(s) (please include all those used in the 12 months prior to the date of commencement of the winding up):

11. Address of Current Registered Office:

12. Address of any other Registered Office used in the 12 months prior to the date of commencement of the winding up:

13. Principal Trading Address(es) (please include all those used in the 12 months prior to the date of commencement of the winding up, if different from the Registered Office(s) above):

14. Nature of the Company’s Business:

a. Please state the most relevant NACE Classification (European industrial activity classification) at the date of commencement of the liquidation:

b. Please give a precise description of the Company’s activities at the date of commencement of the liquidation:

15. Number of Company employees at the date of commencement of the liquidation: ______________

16. Turnover for each of the last three financial years preceding the date of commencement of the liquidation:

Financial Year Ended (date): ______________ Turnover: ______________ (€ amount)

Financial Year Ended (date): ______________ Turnover: ______________ (€ amount)

Financial Year Ended (date): ______________ Turnover: ______________ (€ amount)

17. Trading Details (please state as a minimum month and year):

a. Date of Commencement of Trading: ______________

b. Date of Cessation of Trading (if applicable): ______________

18. Please state, in your opinion, the reasons for the liquidation of the Company, and cite the evidence to support this opinion on a separate sheet.

19. Has there been any Scheme of Arrangement/Receivership/ Examinership/ Liquidation in the Company in the 36 months prior to the date of this report?

Yes: No:

If yes, please provide relevant information, including type, name and address of any office-holder(s), date(s) of appointment/termination of appointment, copies of all notices of appointment and reports of receivers/examiners/liquidators or other office holders of the Company during that period:

20. Is there a deficiency in any tax return or payment of taxes?

Yes: No:

If so, please specify the periods, if any, for which returns are overdue and/or the amounts due. Please also specify the amounts paid in respect of those periods. (please attach to this Report a copy of the Revenue Statement of Collections and Payments that issued to you upon your appointment as liquidator. If not attached, please state why not).

21. Have you any information which may lead you to believe that there was a person acting as a shadow director of the Company- (Please note that the expression ‘shadow director’ may include an individual or a body corporate):

Yes: No:

If yes, please provide the following details for the individual/body corporate in question:

a. Full Name:

b. Current or last known address:

c. What was the Person’s role in the Company? ______________

d. Has the Person demonstrated to you that s/he has acted honestly and responsibly in relation to the conduct of the Company’s affairs?

Yes: No:

Please provide on a separate sheet details of the factors which support this answer and any other relevant information.

Section 3: COMPANY DIRECTORS

(To be completed as part of the first Report and every subsequent Report where a change in details arises)

22. In this Section, you are required to include every person who appears to you to be, or have been, a director of the Company at the date of commencement of the winding up or at any time in the 12 months prior to the date of commencement of the winding up.

A separate copy of this Section should be used for each Person.

a. Full Name:

b. Current or last known address:

c. Date of birth:

d. Period as director:

From (date): ______________ To (date): ______________

e. What was the Person’s role in the Company?

f. Has the Person demonstrated to you that s/he has acted honestly and responsibly in relation to the conduct of the Company’s affairs?

Yes: No:

g. Other Directorships (please provide full details of present/past companies of which this Person is/was a Director in the period from 12 months prior to the date of commencement of the winding up of the Company to date and include the company registration number, the date(s) of appointment/termination of the period as Director in each case and please indicate if any of these companies operated in a sector similar to the Company in liquidation):

Section 4: STATEMENT OF AFFAIRS, ACCOUNTS AND REPORT TO CREDITORS

(To be completed as part of the first Report and every subsequent Report where a change in details arises)

23. Directors’ Statement of Affairs or similar document (please attach a copy to this Report. If a copy is not attached, please state why not and attach details of the known assets and liabilities of the Company):

24. Is there a material difference between the Statement of Affairs or similar document and the expected final position?

Yes: No:

If so, please provide details of the amount and the reason for this material difference on a separate sheet.

25. Audited/Other Accounts (please attach to this Report a copy of the last two sets of the audited accounts of the Company and the most recent draft or management accounts prepared after the last set of audited accounts. If the Company is exempted from audit, please provide a copy of the accounts laid before the AGM for the same period and the most recent draft or management accounts. If none are attached, please state why not):

26. Report to Creditors and any other relevant material, e.g., minutes of creditors’ meeting and Chairperson’s statement to meeting (please attach these documents and if they are not available, state why not):

27. Has a Committee of Inspection been appointed?

Yes: No:

28. If so, please provide the names and addresses of the members:

29. Will the winding up be completed within 18 months from the date of this report?

Yes: No:

30. Was there any material transfer of assets of the Company to any person during the period commencing 12 months prior to the date of commencement of its winding up and ending on the date of this report?

Yes: No:

If yes, please provide details, e.g., date(s) of transfer, nature of asset(s), beneficiary(ies), on a separate sheet.

31. On what date was the Company unable to trade out of its financial difficulties? ______________

Section 5: PROCEEDINGS

(To be completed as part of the first Report and every subsequent Report where a change in details arises)

32. Are you asking the Director of the Office of Corporate Enforcement at this time to relieve you from the requirement to apply, pursuant to section 683 of the Companies Act 2014 , for the restriction of one or more of the directors of the Company?

Yes: No:

If yes, is relief being sought for-, (please tick one)

All directors: Certain named directors:

In either case, please name each director for which relief is sought and state the grounds upon which you consider that an application for restriction should not now be taken against each individual.

In respect of any remaining directors, please name them and indicate the grounds upon which the application for restriction will be made in each case:

33. In respect of this Company will you be applying to the High Court to disqualify any person, pursuant to section 842 of the Companies Act 2014 ?

Yes: No:

If yes, please name the person(s) in question and indicate the grounds upon which the application to disqualify will be taken:

34. Are any other proceedings being undertaken, or contemplated, by you against officers of the Company?

Yes: No:

If yes, please specify the nature of the proceedings, the person(s) against whom the proceedings are being or may be taken and the date/expected date of commencement of the proceedings. If proceedings have commenced please state whether they are in the High Court or Circuit Court and cite the Court record number of the case:

35. Are any other civil or criminal proceedings being undertaken, or contemplated, by any other person against the Company or any of its officers?

Yes: No:

If yes, please specify the nature of the proceedings, the person(s) against whom the proceedings are being or may be taken, the date/expected date of commencement of the proceedings and the name, address and telephone number of the person taking or contemplating the proceedings. If proceedings have commenced, please state whether they are in the High Court or Circuit Court and cite the Court record number of the case:

36. Have you made, or are you contemplating making, a report to the Director of Public Prosecutions and the Director of Corporate Enforcement under section 723 of the Companies Act 2014 ?

Yes: No:

If yes, please specify the nature of any suspected offence(s), the person(s) to whom the report relates, the relationship of each such person to the Company and the date/expected date of submission of the report:

Section 6: FINAL REPORT

37. Outcome of restriction application(s) to the High Court (if applicable) (please provide details for each person):

38. Outcome of any other court proceedings taken under the circumstances set out in questions 32, 33 and 34:

Section 7: Liquidators Statement

(To be completed on every occasion a report is made)

I, ______________, being the liquidator of the above company, state that the details and particulars contained in this Report and all associated documentation prepared by me are true, correct and complete, to the best of my knowledge and belief.

Signed: ______________

Date: ______________

Please ensure that copies of the following are attached to this Report:

• Separate sheets (if applicable) [items 18, 21(d), 22(f), 22(g), 24, 30];

• Copies of notices of appointment and reports of receivers/examiners/ liquidators/other office-holders (if applicable) [item 19];

• A copy of the Revenue Statement of Collections and Payments that issued to you upon your appointment as liquidator.

• Statement of Affairs (or details of assets and liabilities) [item 23];

• Last two sets of audited accounts and draft or management accounts subsequently prepared, if any [item 25];

• Report to Creditors and other relevant material, including minutes of creditors’ meeting, Chairperson’s statement to meeting [item 26];

• Additional copies of Section 3: Details of Company Directors;

• Any further information or documentation that you deem to be required.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation).

These rules amend Order 74, Order 75 and substitute Forms Nos. 17, 41 and 41A in Appendix M of the Rules of the Superior Courts and adds Forms Nos. 51 to 54 to that Appendix, to facilitate the operation of the Companies Act 2014 .