IE
S.I. No. 255/2015 - Rules of the Superior Courts (Companies Act 2014) 2015.
Table of Provisions (94)
Statutory Text (94 Articles)
1. The document marked “A” upon which I have signed my name before swearing this affidavit contains a list of the creditors of and persons having claims upon the above-named company on the ....... day of........................... 20....... (the date fixed by the Order in this matter dated the....... day of.......), together with their respective addresses and the nature and amount of their respective debts or claims, and such list is, to the best of my knowledge, information, and belief, a true and accurate list of such creditors and persons having claims on the day aforesaid.
2. To the best of my knowledge and belief there was not, at the date aforesaid, any debt or claim, which, if such date were the commencement of the winding-up of the said company, would be admissible in proof against the said company other than and except the debts set forth in the said list. I am able to make this statement from facts within my knowledge as the....... of the said company and from information derived from investigation and examination of the affairs, books, documents and papers of the said company.
Sworn etc.
____
No. 3
O. 75, r. 5(2)
LIST OF CREDITORS REFERRED TO IN FORM No. 2
A.
(
Title as in Form No. 1
)
This list of creditors marked A was produced and shown to A.B. and is the same list of creditors as is referred to in his affidavit sworn before me this... day of....... 20.
Commissioner for Oaths.
Names, addresses and description of the creditors
Nature of debt or claim
Amount of debt or claim
...
...
...
____
No. 4
O. 75, r. 5(4)
NOTICE TO CREDITORS
(
Title as in Form No. 1
)
To
You are hereby given notice that an originating notice of motion has been presented to the High Court (
here state shortly the nature of the relief sought
) and that in the list of persons admitted by the company to have been on the....... day of.......20. creditors of the company your name is entered as a creditor for (
here state the amount of the debt or nature of the claim
). If you claim to have been on the last mentioned day a creditor to a larger amount than is stated above, you must on or before the....... day of....... 20. send the particulars of your claim and the name and registered place of business of your solicitor (if any) to the undersigned solicitor at........ In default of your so doing, the above entry in the list of creditors will in all the proceedings under the above petition be treated as correct.
Dated
(Signed)
Solicitor for the said Company.
____
No. 5
O. 75, r. 6
ADVERTISEMENT OF ORIGINATING NOTICE OF MOTION AND LIST OF CREDITORS
In the matter of (
insert full name of company
) and in the matter of the
Companies Act 2014
.
Notice is hereby given that an originating notice of motion for (
here state shortly the nature of the relief sought
) was on the....... day of....... 20 presented to the High Court and is now pending. (Add where appropriate) And that by Order dated the ....... day of........................... 20....... an inquiry was directed as to the debts, claims and liabilities of the company on the....... day of....... 20. A list of the persons admitted to have been creditors of the company for debts, claims and liabilities to which the said inquiry extends on the said....... day of....... 20 has been filed in the Central Office and may be inspected at the offices of the company at....... or at the office of (
here state name of company’s solicitor and address of his office
) at any time during usual business hours on payment of €0.32. Any person who claims to have been on the said....... 20....... and still to be, a creditor of the company in respect of any such debt, claim or liability and who is not entered on the said list and claims to be so entered, must on or before the....... day of....... 20. send in his name and address and the particulars of his claim, and the name and address of his solicitor (if any) to the under-signed solicitor at....... or in default thereof he will be precluded from objecting to the grant of the relief sought in the petition.
Dated
(Signed)
Solicitor for the said company.
____
No. 6
O. 75, r. 7
AFFIDAVIT IN ANSWER TO INQUIRY
(
Title as in Form No. 1
)
We, C.D. of....... (
the secretary or other officer of the above-named company
), X.Y. of....... (the solicitor of the said company) and A.B. of....... the managing director (
or other officer
) of the said company, severally make oath and say as follows
I, the said C.D. for myself say
(1) I did, on the....... day of....... 20 in the manner hereinafter mentioned serve a true copy of the notice marked “B” upon which I have signed my name before swearing this affidavit, upon each of the respective persons whose names, addresses and descriptions appear in the first column of the list of creditors marked “A” referred to in the affidavit of....... filed on the....... day of....... 20...
(2) I served the said respective copies of the said notice by putting such copies respectively duly addressed to such persons respectively, according to their respective names and addresses appearing in the said list (being the last known addresses or places of abode of such persons respectively), and with the proper postage stamps affixed thereto as prepaid letters, into a post office receiving box at....... between the hours of....... and....... o’clock in the .noon of the said day of 20..
And I, the said X.Y., for myself say
(3) A true copy of the notice marked “C” upon which I have signed my name before swearing this affidavit has appeared in the....... of the....... day of....... 20.. and the....... day of 20....
(4) I have in the document marked “D” upon which I have signed my name before swearing this affidavit, set forth a list of all claims, the particulars of which have been sent in to me pursuant to the said notice marked “B” by persons claiming to be creditors of the company for larger amounts than are stated in the list of creditors marked “A” referred to in the affidavit of....... filed on the....... day of....... 20...
or
No person has sent in to me pursuant to the said notice marked “B” a claim to be entered on the said list for a larger sum than that in respect of which he is so entered in the said list marked “A”.
(5) I have in the document marked “E” upon which I have signed my name before swearing this affidavit, set forth a list of all claims, the particulars of which have been sent in to me pursuant to the notice referred to in the third paragraph of this affidavit by persons claiming to be creditors of the company on the....... day of....... 20... not appearing on the said list of creditors marked A and who claim to be entered thereon.
or
No claims have been sent to me pursuant to the notice referred to in paragraph (3) hereof by persons not entered on the said list marked “A” and claiming to be so entered.
And we, C.D. and A.B. for ourselves say
(6) We have in the first part of the said document marked “D” and also in the first part of the said document marked “E” respectively set forth such of the said debts and claims as are admitted by the company to be due wholly or in part, and how much is admitted to be due in respect of such of the said debts and claims respectively as are not wholly admitted.
(7) We have, in the second part of each of the said documents marked “D” and “E” set forth such of the said debts and claims as are wholly disputed by the company.
(8) In the said exhibits “D” and “E” we have distinguished such of the debts the full amounts whereof are proposed to be appropriated in such manner as the Judge shall direct.
____
No. 7
O. 75, r. 7
EXHIBIT D REFERRED TO IN FORM No. 6
(
Title as in Form No. 1
)
LIST OF DEBTS AND CLAIMS
of which particulars have been sent to.........................by persons claiming to be creditors of the above named company for larger amounts than are stated in the list of creditors made out by the company.
FIRST PART
Debts or claims wholly or partly admitted by the company
Names, Addresses and descriptions of creditors
Particulars of claim
Total amount claimed
Amount admitted by the company to be within the inquiry and to be owing to the creditor
Debts proposed to be appropriated in full although disputed
...
...
...
...
...
SECOND PART
Debts and claims wholly disputed by the company
Names, addresses and descriptions of creditors
Particulars of claim
Total amount claimed
Debts proposed to be appropriated in full although disputed
...
...
...
...
This document marked “D” was produced and shown to C.D., X.Y. and A.B. respectively and is the same as that referred to in their affidavit sworn this....... day of....... 20. before me, (
to be signed here by Commissioner or officer before whom the affidavit is sworn
)
____
No. 8
O. 75, r. 7
EXHIBIT “E” REFERRED TO IN FORM No. 6
(
Title as in Form No. 1
)
LIST OF DEBTS AND CLAIMS
of which particulars have been sent to............. by persons claiming to be creditors of the above-named company and to be entered in the list of creditors made out by the company.
FIRST PART
Debts and claims wholly or partly admitted by the company
Names, Addresses and descriptions of creditors
Particulars of claim
Total amount claimed
Amount admitted by the company to be within the inquiry and to be owing to the creditor
Debts proposed to be appropriated in full although disputed
SECOND PART
Debts and claims wholly disputed by the company
Names, Addresses and descriptions of creditors
Particulars of claim
Total amount claimed
Debts proposed to be appropriated in full although disputed
This document marked “E” was produced and shown to C.D., X.Y. and A.B. respectively and is the same as that referred to in their affidavit sworn this....... day of....... 20.. before me (
to be signed here by Commissioner or officer before whom the affidavit is sworn
)
____
No. 9
O. 75, r. 8(1)
NOTICE TO CREDITORS TO COME IN AND PROVE
In the matter of....... (as in Form No. 1)
You are hereby required to come in and prove the debt claimed by you against the above-named company, by filing your affidavit and giving notice thereof to....... the solicitor of the said company, on or before the... day of..... next; and you are to attend in person or by your solicitor at the Examiner’s Office, Four Courts, Dublin, on the... day of....... 20 at....... o’clock in the....... noon being the time appointed for hearing and adjudicating upon the claim, and produce any securities or documents relating to your claim.
In default of your complying with the above directions you will be precluded from objecting to the grant of the relief sought in the originating notice of motion (or in all proceedings relative to the grant of the relief sought in the originating notice of motion be treated as a creditor for such amount only as is set against your name in the list of creditors).
Dated the....... day of.....
(Signed)
Solicitor for the said company.
____
No. 10
O. 75, r. 11
ADVERTISEMENT OF HEARING OF ORIGINATING NOTICE OF MOTION
In the matter of....... (as in Form No. 1)
Notice is hereby given that an originating notice of motion issued out of the High Court on the....... day of....... 20. for (
here state shortly the nature of the relief sought
) is directed to be heard before the Court on the....... day of....... 20........
Dated
(Signed)
Solicitor for the Company.
____
No. 11
O. 75, r. 21(8)
PRE-MERGER CERTIFICATE
THE HIGH COURT
3. ..and ..to whom the Notice of Motion herein is addressed were and each of them was a director of the company at the date of [or within twelve months prior to] the commencement of its winding up. (
Where any respondent was registered as a director, exhibit a Companies Registration Office search in relation to the Company and/or set out facts which establish any relevant respondent was a director or shadow director in accordance with
section 221
of the
Companies Act 2014
Act
).
4. The Company is [or was at the date of commencement of the winding up] unable to pay its debts within the meaning of
Section 570
of the
Companies Act 2014
. (
Exhibit any relevant document(s)
).
5. [
Set out all facts applicant considers should be brought to the attention of the Court for the purpose of determining
i. whether each of the respondents has acted honestly in relation to the conduct of the affairs of the company, whether before or after it became an insolvent company
ii. whether each of the respondents has acted responsibly in relation to the conduct of the affairs of the company, whether before or after it became an insolvent company
iii. whether each of the respondents has, when requested to do so by the liquidator of the company, cooperated as far as could reasonably be expected in relation to the conduct of the winding up of the company,
iv. whether there is any other reason why it would be just and equitable that any of the respondents should be subject to the restrictions imposed by an order under
section 819
(1) of the
Companies Act 2014
]
SWORN etc
____
No. 50
O. 74, r. 93(4)
[
Title as in Form No. 48
]
APPEARANCE
Enter an appearance for C.D. and E.F. the Respondents to this Motion.
Dated
(Signed)
X.Y. & Company
Solicitors for the Respondents
or
C.D.
The (first named) Respondent in person
The registered place of business of X.Y. & Company is
or
The place of residence of C.D. is
*His/*her address for service is
To the Registrar of the Central Office
_________________
Take notice that I have this day entered an appearance at the Central Office, Four Courts, Dublin for to the Originating Notice of Motion in these proceedings
or
Take notice that I have this day entered an appearance in person at the Central Office, Four Courts, Dublin to the Originating Notice of Motion in these proceedings
Dated
(Signed)
To: __________________
Solicitors for the Applicant
____
Appendix N: Proceedings under the
Companies Act 2014
(other than Parts 10, 11 and 13) and under European Union company law
No. 1
O. 75, r. 2
ORIGINATING NOTICE OF MOTION
THE HIGH COURT
6. Claims and proofs should be sent by registered post to
............. (Liquidator)
at..........
[
A summary or copy of the provisions of sections 618 to 622 inclusive of the
Companies Act 2014
to be attached.
]
*Delete where inapplicable
____
No. 33
O. 74, r. 55
NOTICE TO CREDITOR OF ALLOWANCE OF DEBT
____
[
Title as in Form No. 1
]
The debt claimed by you in this matter has been allowed at the sum of €....... [
if part only allowed, add
: if you claim to have a larger sum allowed, you are hereby required to come in and prove the further amount claimed by you against the above named company by filing your affidavit and giving notice thereof to men on or before the....... day of....... next: and you are to attend in person or by your solicitor at , on the ....... day of.............................., 20... at....... o’clock in the....... noon being the time appointed for hearing and adjudicating upon the claim.]
Dated
(Signed)
Liquidator.
To
____
No. 34
O. 74, r. 55
NOTICE TO CREDITORS TO COME IN AND PROVE THEIR DEBTS
____
[
Title as in Form No. 1
]
You are hereby required to come in and prove the debt claimed by you against the above named company by filing your affidavit and giving notice thereof to me on or before the....... day of....... next; and you are to attend in person or by your solicitor at , on the ....... day of..............................., 20....... at . o’clock in the....... noon being the time appointed for hearing and adjudicating upon the claim.
Dated
(Signed)
Liquidator.
To
____
No. 35
O. 74, r. 59
AFFIDAVIT OF CREDITOR IN PROOF OF DEBT
____
[
Title as in Form No. 1
]
I,....... of......., make oath and say as follows
7. The company shall, within such time as the Court shall direct, file in the Central Office an affidavit made by the person to whom the particulars of debts or claims are by such notices as are mentioned in rules 5(4) and 6 required to be sent, stating the result of such notices respectively and verifying lists, in the Forms Nos. 7 and 8 respectively in Appendix N, containing in alphabetical order the names and addresses of the persons (if any) who shall have sent in the particulars of their debts or claims in pursuance of such notices respectively, and the amounts of such debts or claims. Some officer of the company shall join in such affidavit, and shall in such list distinguish which (if any) of such debts and claims are wholly, or as to any and what part thereof, admitted by the company, and which (if any) of such debts and claims are wholly, or as to any and what part thereof, disputed by the company. Such affidavit shall also state which of the persons who are entered in the list as creditors and which of the persons who have sent in particulars of their debts or claims in pursuance of such notices as aforesaid have been paid or have consented to the proposed reduction. Such affidavit may be in the Form No. 6 in Appendix N and such list and an attested copy of such affidavit shall be left at the Central Office within such time as the Court shall direct.
8. The company is indebted to your petitioner in the sum of €......... for (
state the consideration for the debt with particulars to establish that debt claimed is due
).
9. The company was formed by A.B., deceased, to carry on the business of.... formerly carried on by him in partnership with C.D. and E.F. The said A.B., C.D., and E.F. were the first directors of the company. Each of the said three directors held 2,000 shares in the company.
10. The said A.B. died on the.... day of.... 20..., having appointed his widow, G.H. the petitioner, to be the sole executrix of his last will.
11. By clauses... and... of the *articles of association *constitution of the company it is provided: (set out the clauses relating to registration of executors and of transfers and for the remuneration of the directors).
12. The said C.D. and E.F. as the sole remaining directors of the company have refused to register the said G.H. as a shareholder of the company.
13. During the lifetime of the said A.B. each of the said directors was paid a salary of €........ and directors’ fees of €......... under resolutions passed at general meetings of the company. At an extraordinary general meeting of the company held on the... day of... 20..., the said C.D. and E.F. by the exercise of their voting power as the holders of more than one half of the registered shares of the company increased their remuneration as directors from the sum of €......... to the sum of €........
14. Since the date of the death of the said A.B. no dividends have been paid by the company although the balance sheets and profit and loss accounts have shown considerable profits.
15. Your petitioner charges that the said C.D. and E.F. have excluded and intend to continue to exclude the petitioner from any share in the conduct of the company’s business or in the distribution of its profits.
16. Your petitioner further charges that the said C.D. and E.F. are attempting to compel your petitioner to sell her shares to the company to the said C.D. and E.F. at a gross undervalue and that the company’s affairs are being conducted and that the powers of the directors of the company are being exercised in a manner oppressive to her and in disregard of her interests as the personal representative of a deceased member.
(Conclude as follows):—
[No.] It is just and equitable that the company should be wound up.
Your petitioner therefore prays
(1) That the company may be wound up by the Court under the provisions of the
Companies Act 2014
*[Note 5] in main proceedings (in accordance with Article 3(1) of Council Regulation (EC) No. 1346/2000)
*[Note 6] in secondary proceedings (in accordance with Article 3(3) of Council Regulation (EC) No. 1346/2000)
*[Note 7] in territorial proceedings (in accordance with Article 3(4) of Council Regulation (EC) No. 1346/2000),
(2) Or that such other Order may be made on this petition as shall be just.
NOTE:—It is intended to serve this petition on (
here insert the name of the company
) *[and on the National Asset Management Agency]
[Note 1] One alternative version only of paragraph 5 must be included.
Under Council Regulation (EC) No. 1346/2000—
the “centre of main interests” should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties;
“establishment” means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods.
[Note 2] Where this version of paragraph 5 is appropriate to the case, paragraph 6 should be deleted, and the remaining paragraphs renumbered.
[Note 3] Where paragraph 6 is required, only one alternative version must be included.
[Note 4] See section 572(2) of the
Companies Act 2014
. One alternative version only of paragraph 8 must be included. Where the petition is served on NAMA, proof of service must be produced on the hearing of the petition.
[Note 5] To be completed only if Council Regulation (EC) No. 1346/2000 applies and the company’s centre of main interests is situated in the State.
[Note 6] To be completed only if Council Regulation (EC) No. 1346/2000 applies, insolvency proceedings in respect of the company have been opened in another Member State, and the company has an establishment in the State.
[Note 7] To be completed only if Council Regulation (EC) No. 1346/2000 applies, insolvency proceedings in respect of the company have been opened in another Member State, and one of the conditions in Article 3(4) of the Council Regulation is satisfied.
*Delete where inapplicable.
†Does not apply to LTD.
____
No. 5
O. 74, r. 10 (2)
ADVERTISEMENT OF PETITION
[
Title as in Form No. 1
]
[Name of Company]
Notice is given that a petition was on the..... day of........ 20.... presented to the High Court by the company whose registered office is at............... (or by A.B. of................) a creditor [or contributory, or liquidator in main proceedings] of the company [
or as the case may be
] for the winding up by the High Court of the above named company (the “company”) *in main proceedings, (in accordance with Article 3(1) of Council Regulation (EC) No. 1346/2000) *in secondary proceedings, (in accordance with Article 3(3) of Council Regulation (EC) No. 1346/2000) *in territorial proceedings, (in accordance with Article 3(4) of Council Regulation (EC) No. 1346/2000).
The petition is directed to be heard on the..... day of...... 20.... Any creditor or contributory of the company [or liquidator in main proceedings] who wishes to support or oppose the making of an order on the petition may appear at the time of hearing by himself or his counsel for that purpose and a copy of the petition will be furnished to any creditor or contributory of the said company who requires it by the undersigned on payment of the regulated charge for the same.
(Signed)
Solicitor for the petitioner. (Address)
NOTE:—Any person who intends to appear at the hearing of the petition must serve on or send by post to the petitioner or his solicitor, notice in writing of his intention to do so. The notice must state the name and address of the person or if a firm the name and address of the firm and must be signed by the person or firm, or his or their solicitor (if any) and must be served or, if posted, must be sent by post in sufficient time to reach the above-named solicitor or the petitioner not later than 5 o’clock in the afternoon of the.... day of....., 20...
*Delete where inapplicable
____
No. 6
O. 74, r. 12
AFFIDAVIT VERIFYING PETITION
____
[
Title as in Form No. 1
]
I, A.B., of....... make oath and say as follows:—
17. (1) The following applications shall be made by originating motion
ex parte
(
a
) an application under section 400(5) of the Act for leave not to deliver the required notice;
(
b
) an application under section 401(5) of the Act for leave not to deliver the required notice;
(
c
) an application under section 821 of the Act for leave to inform the Court of any relevant matter;
(
d
) an application under section 848 of the Act for leave to report to the Court.
(2) Every application under this rule shall be grounded upon the affidavit of the party making such an application and shall be heard and determined on affidavit unless the Court otherwise authorises.
(3) The Court may, where it thinks fit, order that notice of the application be given to all such persons as the Court may direct, and may give directions as to the service of the said notice.
IX. Takeover Schemes
18. (1) This rule applies to any applications or proceedings involving
(
a
) the exercise, or a request for the exercise, by the Court of its powers under section 453 or section 455 of the Act with respect to a compromise or scheme of arrangement proposed between a “relevant company”, within the meaning of the
Irish Takeover Panel Act 1997
, and its members or any class of its members which constitutes a takeover within the meaning of that Act;
(
b
) the exercise, or a request for the exercise, by the Court of its powers under section 459 of the Act with respect to a scheme, contract or offer of the kind referred to in section 459, and which constitutes a takeover within the meaning of the
Irish Takeover Panel Act 1997
; and
(
c
) the granting, or a request for the granting, by the Court of any other relief in support of, or for the purpose of giving effect to, such a compromise or scheme of arrangement or scheme, contract or offer.
In this rule, any such applications or proceedings are referred to as “takeover scheme proceedings”.
(2) The originating document in any takeover scheme proceedings shall contain a statement that the proceedings are takeover scheme proceedings within the meaning of this rule.
(3) The applicant or other moving party in any takeover scheme proceedings shall notify the Irish Takeover Panel (in this rule referred to as “the Panel”) of any motion or other application made in takeover scheme proceedings, and shall provide the Panel with true copies of any motion or other application, and any affidavit, exhibit or other document filed or delivered in support of such application, promptly upon the filing or delivery of the same. The applicant or moving party shall provide the Panel with particulars of the terms of any order made by the Court on any motion or other application in any takeover scheme proceedings promptly upon the making of such order, and with a true copy of such order promptly upon the perfection of the same.
(4) The Panel shall be at liberty to be heard in takeover scheme proceedings and may apply to the Court for that purpose.
(5) For the purpose of section 1440(2) of the Act, the Court may, in any takeover scheme proceedings, direct the Registrar to invite the Panel to provide to the Court, in such form as the Court may request, any report or other information which appears relevant to the exercise of the Court’s jurisdiction concerning the compromise or scheme of arrangement or, as the case may be, the scheme, contract or offer which is the subject of the takeover scheme proceedings, and may give such directions as seem to it just and proper as to the transmission of a copy of such report or information to the applicant in the takeover scheme proceedings and to any other party to, or person interested in, those proceedings.
X. Applications under Chapter 3 of Part 9 of the Act (mergers) and Chapter 4 of Part 9 of the Act (divisions)
19. (1) An application to the Court
(
a
) under section 477 of the Act by all the merging companies for an order confirming a merger, or
(
b
) under section 500 of the Act by all the companies involved in a division for an order confirming a division
shall be commenced by way of originating notice of motion, which shall be entitled in the matter of an application under section 477 or, as the case may be, section 500 of the Act and in the matter of each of the merging companies or, as the case may be, in the matter of each of the companies involved in the division.
(2) On the date first fixed for the hearing of an originating notice of motion referred to in sub-rule (1), or on any adjournment from that date, the Court may make such orders or give such directions for the further conduct of the proceedings as appear just and convenient for the determination of the proceedings, including
(
a
) an order fixing a date for the hearing of the application for an order under section 477 or, as the case may be, section 500 of the Act and for the publication of notice of the application and of the date fixed for the hearing;
(
b
) for the service of copies of the originating notice of motion, grounding affidavit and exhibits on any person, and fixing time limits within which any such person is at liberty to deliver and file any affidavit, and any replying affidavit may be delivered and filed on behalf of the applicants;
(
c
) an order determining any application under section 468(3)(
b
) of the Act or, as the case may be, under section 492(3)(
b
) of the Act, for the appointment of an expert.
(3) The originating notice of motion referred to in sub-rule (1) shall be grounded upon an affidavit sworn on behalf of each of the merging companies or, as the case may be, each of the companies involved in the division, which shall
(
a
) exhibit and verify each of the following or, where applicable, verify why it is not required in the circumstances
(i) the common draft terms of merger approved in writing on behalf of each of the merging companies in accordance with section 466 of the Act;
(ii) a copy of the explanatory report referred to in section 467(1) of the Act, provided that in any case where an agreement referred to in section 467(4) of the Act has been made between or among the holders of shares or other securities, the affidavit shall instead verify the making of such an agreement and exhibit a copy of that agreement, if in writing;
(iii) the independent person’s report referred to in section 468(1) of the Act, and
(iv) the merger financial statement referred to in section 469(1) of the Act or where no such financial statement is required for any company concerned, a copy of that company’s latest annual accounts;
or, as the case may be,
(i) the common draft terms of division approved in writing on behalf of each of the companies involved in the division in accordance with section 490 of the Act,
(ii) the explanatory report referred to in section 491(1) of the Act, provided that in any case where an agreement referred to in section 491(4) of the Act has been made between or among the holders of shares or other securities, the affidavit shall instead verify the making of such an agreement and exhibit a copy of that agreement, if in writing, and in any case where each of the companies involved in the division relies on section 491(5) of the Act, the affidavit shall instead verify the allocation of shares in each of the acquiring companies in accordance with section 491(5),
(iii) the independent person’s report referred to in section 492(1) of the Act, and
(iv) any division financial statement referred to in section 493(1) of the Act or where no such division financial statement is required for any company concerned, a copy of that company’s latest annual accounts;
(
b
) contain an averment confirming the delivery by the applicant companies to the Registrar of Companies of the document referred to in section 470(1) or, as the case may be, section 494(1) of the Act, or verifying the publication of that document in accordance with section 470(5) or, as the case may be, section 494(5) of the Act, on each relevant company’s website;
(
c
) verify the publication by the applicant companies of notice of such delivery in accordance with section 470(2) or, as the case may be, in accordance with section 494(2) of the Act;
(
d
) include evidence of
(i) the times during which the documents referred to in section 471(1) or, as the case may be, section 495(1) of the Act, were made available for inspection at the registered office of each company concerned in accordance with that section or, as the case may be,
(ii) the publication on each relevant company’s website in accordance with section 471(5) and 471(6) of the Act of the documents referred to in section 471(1) of the Act or, as the case may be, the publication on each relevant company’s website in accordance with section 495(5) and 495(6) of the Act of the documents referred to in section 495(1) of the Act;
(
e
) exhibit a copy of every notice convening a general meeting referred to in section 473 or, as the case may be, section 496 of the Act, and include evidence of the passing of every special resolution referred to in section 473 or, as the case may be, section 496 of the Act;
(
f
) exhibit any written request by any shareholder pursuant to section 476(1) or, as the case may be, section 499(1) of the Act and
(
g
) exhibit the original or a true copy of and verify any other document relied upon in support of the application.
(4) The application for an order under section 477 or, as the case may be, section 500 of the Act shall additionally be grounded upon an affidavit sworn on behalf of each of the applicants, which shall
(
a
) contain, or exhibit and verify, the statement referred to in section 477(2) or as the case may be, section 500(2) of the Act, made up to a date as near as practicable to the date on which the application is to be heard, or a statement that no shareholder has made a request referred to in that section;
(
b
) contain a statement as to whether any shareholder has made a request referred to in section 476(1) or as the case may be, section 499(1) of the Act, and, where such a request has been made, provide details of the measures taken or proposed to comply with each such request and those details or that statement shall be provided or made up to a date as near as practicable to the date on which the application is to be heard;
(
c
) where necessary, include evidence as to the effect, if any, of the merger on creditors of any of the merging companies or, as the case may be, of the division on creditors of any of the companies involved in the division;
(
d
) provide details of any provision made or proposed to be made for any creditor of any of the merging companies or, as the case may be, any creditor of any of the companies involved in the division, who has notified any of those companies of an objection on the grounds that that creditor would be unfairly prejudiced by an order under section 480 or, as the case may be, section 503 of the Act;
(
e
) include evidence of the rights in the acquiring company or acquiring companies which will be given to holders of securities other than shares in any of the companies being acquired to which special rights are attached for the purposes of section 479(1) or, as the case may be, section 502(1) of the Act;
(
f
) either
(i) confirm that the merger or division is not a merger or acquisition which is referred to in
section 16
of the
Competition Act 2002
and to which paragraph (
a
) or (
b
) of section 18(1) of that Act applies or which is referred to in section 18(3) of that Act and which has been notified to the Competition Authority in accordance with that subsection, or
(ii) where the merger or division is such a merger or acquisition, confirm, and where appropriate exhibit the original or a true copy of any document evidencing
(I) that the Competition Authority has determined under section 21 or 22 of that Act that the merger or division may be put into effect, or
(II) that the Competition Authority has made a conditional determination (within the meaning of that Act) in relation to the merger or division, or
(III) confirm that the period specified in section 21(2) of that Act has elapsed without the Competition Authority having informed the undertakings which made the notification concerned of the determination (if any) it has made under paragraph (
a
) or (
b
) of section 21(2) aforementioned in relation to the merger or division, or
(IV) confirm that a period of four months has elapsed since the appropriate date (within the meaning of that Act) without the Competition Authority having made a determination under section 22 of that Act in relation to the merger or division;
(
g
) either
(i) confirm that the merger or division is not a concentration with a Community dimension within the meaning of the Merger Control Regulation, or
(ii) where the merger or division is such a concentration, confirm, and where appropriate exhibit the original or a true copy of any document evidencing
(I) that the European Commission has issued a decision under Article 8 of the Merger Control Regulation declaring the concentration compatible with the common market, or
(II) that the concentration is deemed to have been declared compatible with the common market pursuant to Article 10(6) of the Merger Control Regulation, and specify the basis on which it is so deemed, or
(III) that after a referral by the European Commission to the Competition Authority under Article 9 of the Merger Control Regulation, one of the events specified in subparagraphs (I) to (IV) of paragraph (
f
)(ii), has occurred,
(
h
) provide details of any requirement under any enactment for any other authorisation, approval, consent, waiver, licence, permission or agreement that affects the merger or division and confirm, and exhibit the original or a true copy of any document evidencing, that each such requirement has been satisfied, and
(
i
) exhibit the original or a true copy of, and verify, any document evidencing any other matter mentioned in section 480(2) of the Act or as the case may be, exhibit the original or a true copy of, and verify, any document evidencing any other matter mentioned in section 503(2) of the Act.
(5) The Registrar of the Court shall for the purposes of section 482 of the Act or, as the case may be, section 505 of the Act, send an attested copy of any order of the Court under section 480 or section 503 of the Act to the Registrar of Companies by pre-paid registered post or by any other means directed by the Court.
XI. Applications under Chapter 16 of Part 17 of the Act (mergers) and Chapter 17 of Part 17 of the Act (divisions)
20. ... No.....
In the matter of Article 25(2) of Council Regulation (EC) No. 2157/2001 of 8 October 2001 on the Statute for a European company (SE)
On the application of......... having its registered office at........... an Irish merging company (hereinafter referred to as “the Applicant”), under the above-mentioned Regulation in respect of a proposed merger with...........
THE COURT HEREBY CERTIFIES that the Applicant has completed properly the pre-merger acts and formalities in respect of such merger.
Dated this.... day of........ 20..
Signed................
Registrar
____
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation).
These rules amend the Rules of the Superior Courts by the substitution of Orders 74, 75, 75A, 75B and Appendices M and N and other ancillary amendments to Orders to prescribe procedures and forms to facilitate the operation of the
Companies Act 2014
.
21. (1) In this Part
the “2008 Regulations” means the European Communities (Cross-Border Mergers) Regulations 2008 (
SI No. 157 of 2008
);
reference to a “Regulation” is to a Regulation of the 2008 Regulations;
words and expressions have the same meaning as in the 2008 Regulations.
(2) An application to the Court by an Irish merging company under Regulation 13 for a certificate of the Court that the company has completed properly the pre-merger requirements shall be commenced by way of originating notice of motion. The originating notice of motion shall be entitled in the matter of an application under Regulation 13 of the 2008 Regulations and in the matter of the applicant company. The originating notice of motion shall specify each of the pre-merger requirements in the 2008 Regulations of which the Court is asked to certify proper completion.
(3) The originating notice of motion referred to in sub-rule (2) shall be grounded upon an affidavit sworn on behalf of the Irish merging company, which shall
(
a
) set out the steps taken by the Irish merging company to complete the pre-merger requirements;
(
b
) include evidence of the manner in which the report referred to in Regulation 6 and the report referred to in Regulation 7, if any, were made available;
(
c
) contain an averment confirming the delivery by the applicant company to the Registrar of Companies of the documents referred to in Regulation 8(1) or, as the case may be, verifying the publication in accordance with Regulation 8(1A) on the applicant company’s website of the documents referred to in Regulation 8(1A) and the publication by
(i) the Registrar of Companies and
(ii) the applicant company
of notice of such delivery or, as the case may be, of such publication, in accordance with Regulation 8(2) and (3);
(
d
) include evidence of the places at which and times during which the documents referred to in Regulation 9(1) were made available in accordance with that Regulation, or, as the case may be, verifying the publication in accordance with Regulations 9(1A) and 9(1C) on the applicant company’s website of the documents referred to in Regulation 9(1) and the applicant company’s compliance with Regulations 9(2A), 9(2B) and 9(2C) so far as they apply, and
(
e
) exhibit the original or a true copy of, and verify, any document relied on in support of the application, which shall, without limitation, include
(i) the common draft terms referred to in Regulation 5 adopted by the board of any Irish merging company;
(ii) the resolution of the board of any Irish merging company adopting the common draft terms;
(iii) the directors’ explanatory report referred to in Regulation 6;
(iv) the expert’s report to the members referred to in Regulation 7 or evidence as to why such a report was not required including, if applicable, any resolution or other document recording the agreement of the shareholders concerned that such a report is not necessary;
(v) the notice delivered by the applicant company to the Registrar of Companies referred to in Regulation 8(1)(
b
) or as the case may be, the information published on the applicant company’s website in accordance with Regulation 8(1A)(
b
);
(vi) copies of the CRO Gazette containing the notice published by the Registrar of Companies and of the editions of the two national daily newspapers containing the notice published by the applicant company in accordance with Regulation 8(2) and (3);
(vii) any special resolution approved in accordance with Regulation 10 and evidence of the satisfaction of any condition to which it is subject pursuant to Regulation 10(2);
(viii) any written request by any minority shareholder pursuant to Regulation 12.
(4) An application for the appointment by the Court of an expert under Regulation 7(2)(
b
) shall be by originating notice of motion entitled in the matter of an application under Regulation 7 of the Regulations and in the matter of the Irish merging company, which originating notice of motion shall be grounded upon an affidavit setting out particulars of the cross-border merger concerned and proposing a qualified person or persons to be appointed.
(5) A notice given to the Court under Regulation 7(7)(
b
) by a person appointed under Regulation 7(2)(
b
) who has ceased to be a qualified person shall cite the title and record number of any proceedings relating to the cross-border merger concerned and shall
(
a
) be delivered to, or sent by pre-paid registered post to, the Registrar, Central Office, and
(
b
) be delivered to the applicant company,
within the period mentioned in Regulation 7(7)(
b
).
(6) Where a notice referred to in sub-rule (5) has been received
(
a
) the Irish merging company may apply to the Court
ex parte
for any further order or directions as may be appropriate.
(
b
) the Court of its own motion may list the proceedings before it on notice to that company and such other person as it may direct.
(7) On the date first fixed for the hearing of an originating notice of motion referred to in sub-rule (2), the Court may, if not giving the certificate sought, make such orders or give such directions, including for the service of copies of the originating notice of motion, grounding affidavit and exhibits on any person, or for any adjournment, as appear just.
(8) A certificate issued by the Court in accordance with Regulation 13 shall be in the Form No. 11 in Appendix N.
22. (1) An application to the Court by all the merging companies under Regulation 14 for an order confirming scrutiny of the legality of the cross-border merger as regards that part of the procedure which concerns the completion of the cross-border merger and, where appropriate, the formation of an Irish successor company, shall be commenced by way of originating notice of motion, which shall be entitled in the matter of an application under Regulation 14 of the 2008 Regulations and in the matter of each of the merging companies.
(2) On the date first fixed for the hearing of an originating notice of motion referred to in sub-rule (1), or on any adjournment from that date, the Court may make such orders or give such directions for the further conduct of the proceedings as appear convenient for the determination of the proceedings, including
(
a
) for the publication of notice of the application;
(
b
) for the service of copies of the originating notice of motion, grounding affidavit and exhibits on any person, and fixing time limits within which any such person is at liberty to deliver and file any affidavit, and any replying affidavit may be delivered and filed on behalf of the applicants;
(
c
) for the purpose of establishing the creditors of an Irish merging company entitled to be heard in accordance with Regulation 15, an order for an inquiry as to the debts or claims against that company, and for the proceedings to be taken for settling the list of creditors, which shall, unless the Court otherwise orders, be in accordance with rules 5 to 10;
(
d
) orders for the filing or giving of further evidence, in particular as to compliance with any applicable requirement of Regulation 16, and for the adjournment of the application or the mention of the application from time to time for that purpose.
(3) The application shall be grounded upon an affidavit sworn on behalf of the applicants, which shall
(
a
) verify that the successor company is an Irish company;
(
b
) exhibit the original of the certificate issued under Regulation 13 in relation to each Irish merging company;
(
c
) exhibit the original or a true copy of a certificate to the same effect as a certificate issued under Regulation 13 issued by the competent authority of the EEA State under the law of which each other merging company which is an EEA company is governed;
(
d
) verify that the application is made not more than six months after the issuing of any certificate referred to in subparagraph (
b
) or (
c
);
(
e
) verify that the common draft terms to which each certificate, referred to in subparagraphs (
b
) and (
c
), relates are the same terms;
(
f
) provide details of any arrangements for employee participation in the successor company required by Part 3 of the 2008 Regulations and verify that those arrangements (where required) have been determined;
(
g
) include evidence as to the effect, if any, of the cross-border merger on any creditor of any Irish merging company;
(
h
) provide details of any provision made or proposed to be made for any creditor of any of the merging companies who has notified any of the merging companies of an objection on the grounds that that creditor would be unfairly prejudiced by an order under Regulation 14;
(
i
) contain a statement as to whether any shareholder has made a request referred to in Regulation 14(2) and, where such a request has been made, provide details of the measures taken or proposed to comply with each such request and those details or that statement shall be provided or made up to a date as near as practicable to the date on which the application is to be heard;
(
j
) either
(i) confirm that the cross-border merger is not a merger or acquisition which is referred to in
section 16
of the
Competition Act 2002
and to which paragraph (
a
) or (
b
) of section 18(1) of that Act applies or which is referred to in section 18(3) of that Act and which has been notified to the Competition Authority in accordance with that subsection, or
(ii) where the cross-border merger is such a merger or acquisition confirm, and where appropriate exhibit the original or a true copy of any document evidencing
(I) that the Competition Authority has determined under section 21 or 22 of that Act that the merger may be put into effect, or
(II) that the Competition Authority has made a conditional determination (within the meaning of that Act) in relation to the merger, or
(III) that the period specified in section 21(2) of that Act has elapsed without the Competition Authority having informed the undertakings which made the notification concerned of the determination (if any) it has made under paragraph (
a
) or (
b
) of section 21(2) aforementioned in relation to the merger, or
(IV) that a period of four months has elapsed since the appropriate date (within the meaning of that Act) without the Competition Authority having made a determination under section 22 of that Act in relation to the merger;
(
k
) either
(i) confirm that the cross-border merger is not a concentration with a Community dimension within the meaning of the Merger Control Regulation, or
(ii) where the cross-border merger is such a concentration confirm, and where appropriate exhibit the original or a true copy of any document evidencing
(I) that the European Commission has issued a decision under Article 8 of the Merger Control Regulation declaring the concentration compatible with the common market, or
(II) that the concentration is deemed to have been declared compatible with the common market pursuant to Article 10(6) of the Merger Control Regulation, and specify the basis on which it is so deemed or
(III) that, after a referral by the European Commission to the Competition Authority under Article 9 of the Merger Control Regulation, one of the events specified in subparagraphs (I) to (IV) of paragraph (
j
)(ii), has occurred, and
(
l
) provide details of any requirement under any enactment for any other authorisation, approval, consent, waiver, licence, permission or agreement that affects the cross-border merger and confirm, and exhibit the original or a true copy of any document evidencing, that each such requirement has been satisfied.
(4) Where the Court makes an order under Regulation 14 approving the merger, the Court shall specify the date on which the merger is to take effect.
(5) The Registrar of the Court shall send an attested copy of any order of the Court under Regulation 14 to the Registrar of Companies by pre-paid registered post or by any other means directed by the Court.
(6) Notwithstanding sub-rule (1), where an Irish merging company intends to seek a certificate under Regulation 13 and to join in an application under Regulation 14 in respect of the same merger, it shall be permissible for all of the merging companies intending to seek relief under Regulation 14 in respect of that merger to issue a single originating notice of motion, in which is sought both the relief sought by the Irish merging company under Regulation 13 and, contingently on that relief being given, the relief sought by all of the merging companies under Regulation 14. In such case, the Irish merging company may seek relief under Regulation 13 on the date first fixed for the hearing of that originating notice of motion and the Court may, on that date, give such directions for the further conduct of the proceedings and adjourn the application for other relief as it thinks appropriate.
23. (1) The Court may direct that all proceedings in relation to the same cross-border merger (including any appeal under Regulation 40(9) or any reference to the Court under Regulation 40(10)) be listed together for hearing in such sequence as the Court may direct.
(2) Where, in any proceedings under this Part, a document exhibited to any affidavit or produced to the Court is not in one of the official languages of the State, a translation thereof into the Irish or English language, certified by a person competent and qualified for the purpose, shall be admissible as evidence of same. The competence and qualification of the translator shall be verified by affidavit.
XIII. Applications under the European Communities (European Public Limited-Liability Company) Regulations 2007
24. (1) In this Part
the “2001 Council Regulation” means Council Regulation (EC) No. 2157/2001 of 8 October 2001 on the Statute for a European company (SE);
the “2007 Regulations” means the European Communities (European Public Limited-Liability Company) Regulations 2007 (
SI No. 21 of 2007
);
reference to a “Regulation” is to a Regulation of the 2007 Regulations;
“SE” means a European public limited-liability company (Societas Europaea or SE) as provided for by Council Regulation (EC) No. 2157/2001 of 8 October 2001, on the Statute for a European company (SE), and shall be construed in accordance with section 1003 of the Act;
words and expressions have the same meaning as in the 2007 Regulations.
(2) An application to the Court by a member or members of an SE for relief under Regulation 12(1) or Regulation 12(3) shall be commenced by way of originating notice of motion, which shall be entitled in the matter of an application under Regulation 12 of the 2007 Regulations and in the matter of the SE, on the application of the applicant, and shall be grounded upon an affidavit sworn by or on behalf of the applicant.
(3) On the date first fixed for the hearing of an originating notice of motion referred to in sub-rule (2), or on any adjournment from that date, the Court may make such orders or give such directions for the further conduct of the proceedings as appear convenient for the determination of the proceedings.
(4) An application to the Court by the Director for an order under Regulation 25(3) shall be commenced by way of originating notice of motion and conducted in accordance with Order 84B.
(5) An appeal to the Court by an SE or a public limited company under Regulation 26(2) against a decision of the Director referred to in Regulation 26(1) shall be commenced by way of originating notice of motion and conducted in accordance with Order 84C.
25. (1) An application to the Court by an Irish merging company for a certificate under Article 25(2) of the 2001 Council Regulation that the company has completed properly the pre-merger acts and formalities shall be commenced by way of originating notice of motion. The originating notice of motion shall be entitled in the matter of an application under Article 25(2) of the 2001 Council Regulation and in the matter of the applicant company. The originating notice of motion shall specify each of the pre-merger acts and formalities in the 2001 Council Regulation of which the Court is asked to certify completion.
(2) The originating notice of motion shall be grounded upon an affidavit sworn on behalf of the Irish merging company, which shall comply with the requirements of rule 19(4), in the case of a merger carried out in accordance with Chapter 16 of Part 17 of the Act, and shall
(
a
) exhibit and verify
(i) the draft terms of merger drawn up by each of the merging companies in accordance with Article 20 of the 2001 Council Regulation and in accordance with section 1131 of the Act,
(ii) a copy of the directors’ explanatory report referred to in section 1132(1) of the Act, provided that in any case where an agreement referred to in section 1132(5) of the Act has been made between or among the holders of shares or other securities, the affidavit shall instead verify the making of such an agreement and exhibit a copy of that agreement, if in writing,
(iii) the expert’s report referred to in section 1133(1) of the Act, or evidence as to why such a report was not required, and
(iv) any merger financial statement referred to in section 1134(1) of the Act or where no such accounting statement is required for any company concerned, a copy of that company’s latest annual accounts, provided that in any case where the company relies on section 1134(6) of the Act, the affidavit shall instead verify the making available of the half-yearly report concerned;
(
b
) contain an averment confirming the delivery by the applicant companies to the Registrar of Companies of the documents referred to in section 1135(1)(
a
) of the Act, or verifying the publication of those documents in accordance with section 1135(3) of the Act on each relevant company’s website;
(
c
) verify the publication by the applicant companies of notice of such delivery in accordance with section 1135(1)(
b
) of the Act;
(
d
) contain an averment confirming the publication in accordance with Article 21 of the 2001 Council Regulation in the CRO Gazette of
(i) the type, name and registered office of every merging company;
(ii) the register in which the documents referred to in Article 3(2) of Directive 68/151/EEC are filed in respect of each merging company, and the number of the entry in that register;
(iii) an indication of the arrangements made in accordance with Article 24 of the 2001 Council Regulation for the exercise of the rights of the creditors of the company in question and the address at which complete information on those arrangements may be obtained free of charge;
(iv) an indication of the arrangements made in accordance with Article 24 of the 2001 Council Regulation for the exercise of the rights of minority shareholders of the company in question and the address at which complete information on those arrangements may be obtained free of charge;
(v) the name and registered office proposed for the SE;
(
e
) include evidence of
(i) the times during which the documents referred to in section 1136(1) of the Act were made available at the registered office of each company concerned in accordance with that section or, as the case may be,
(ii) the publication on the website of each company concerned in accordance with sections 1136(5) of the Act of the documents referred to in section 1136(1) of the Act;
(
f
) exhibit a copy of every notice convening a general meeting referred to in section 1137 of the Act and include evidence of the passing of every special resolution referred to in section 1137 of the Act;
(
g
) exhibit any written request by any shareholder pursuant to section 1140(1) of the Act, and
(
h
) exhibit the original or a true copy of and verify any other document relied upon in support of the application.
(3) The Court may, on the application jointly of two or more Irish merging companies appoint one or more experts for the purposes of Article 22 of the 2001 Council Regulation and such application shall, if any proceedings referred to in sub-rule (1) are in being, be by motion in those proceedings, or otherwise by originating notice of motion entitled in the matter of an application under Article 22 of the 2001 Council Regulation and in the matter of the Irish merging companies concerned, which originating notice of motion shall be grounded upon an affidavit setting out particulars of the merger concerned and proposing a qualified person or persons to be appointed.
(4) On the date first fixed for the hearing of an originating notice of motion referred to in sub-rule (2), the Court may, if not giving the certificate sought, make such order or give such directions, including for the service of copies of the originating notice of motion, grounding affidavit and exhibits on any person (including the Director as competent authority in respect of Article 19 of the 2001 Council Regulation), or for any adjournment, as appear just.
(5) A certificate issued by the Court in accordance with Article 25 of the 2001 Council Regulation shall be in the Form No. 12 in Appendix N.
26. (1) An application to the Court by all the merging companies for an order in accordance with Article 26 of the 2001 Council Regulation confirming scrutiny of the legality of the merger as regards that part of the procedure which concerns the completion of the merger and the formation of the SE, shall be commenced by way of originating notice of motion, which shall be entitled in the matter of an application under Article 26 of the 2001 Council Regulation and in the matter of each of the merging companies.
(2) On the date first fixed for the hearing of an originating notice of motion referred to in sub-rule (1), or on any adjournment from that date, the Court may make such orders or give such directions for the further conduct of the proceedings as appear convenient for the determination of the proceedings, including
(
a
) for the publication of notice of the application;
(
b
) for the service of copies of the originating notice of motion and, grounding affidavit and exhibits on any person, and fixing time limits within which any such person is at liberty to deliver and file any affidavit, and any replying affidavit may be delivered and filed on behalf of the applicants;
(
c
) for the purpose of establishing the creditors of an Irish merging company entitled to be heard for the purposes of Article 24 of the 2001 Council Regulation, an order for an inquiry as to the debts or claims against that company, and for the proceedings to be taken for settling the list of creditors, which shall, unless the Court otherwise orders, be in accordance with rules 5 to 10;
(
d
) orders for the filing or giving of further evidence, in particular as to any matter referred to in Articles 23, 24 and 26 of the 2001 Council Regulation, and for the adjournment of the application or the mention of the application from time to time for that purpose.
(3) The application shall be grounded upon an affidavit sworn on behalf of the applicants, which shall
(
a
) verify the steps taken for the formation of the SE and that the registered office proposed for the SE is in the State;
(
b
) exhibit the original of the certificate issued under Article 25 of the 2001 Council Regulation in relation to each Irish merging company;
(
c
) exhibit the original or a true copy of a certificate under Article 25 of the 2001 Council Regulation issued by the competent authority of the Member State under the law of which each other merging company is governed;
(
d
) verify that the application is made not more than six months after the issuing of any certificate referred to in subparagraph (
b
) or (
c
);
(
e
) verify that the common draft terms to which each certificate, referred to in subparagraphs (
b
) and (
c
), relates are the same terms;
(
f
) provide details of, and verify, any arrangements for employee involvement determined pursuant to Directive 2001/86/EC and Article 26(3) of the 2001 Council Regulation;
(
g
) in accordance with Article 24 of the 2001 Council Regulation, include evidence as to the effect, if any, of the merger on
(i) creditors of any of the merging companies;
(ii) holders of bonds of any of the merging companies;
(iii) holders of securities, other than shares, which carry special rights in any of the merging companies;
(
h
) provide details of any provision made or proposed to be made for any creditor, holder of bonds or holder of securities, other than shares, which carry special rights, of any of the merging companies who has notified any of the merging companies of an objection on the grounds that that person would be unfairly prejudiced by an order under Article 26 of the 2001 Council Regulation;
(
i
) contain a statement as to whether any minority shareholder has made a request referred to in section 1140(1) of the Act or has expressed opposition to the merger to any of the merging companies and, where such a request has been made or opposition expressed, provide details of the measures taken or proposed to comply with each such request or details of such expression of opposition and those details shall be provided or made up to a date as near as practicable to the date on which the application is to be heard;
(
j
) where the law of a Member State to which a merging company is subject provides for a procedure to scrutinise and amend the share-exchange ratio, or a procedure to compensate minority shareholders, without preventing the registration of the merger, include evidence that the other merging companies situated in Member States which do not provide for such a procedure explicitly accepted, when approving the draft terms of the merger in accordance with Article 23(1) of the 2001 Council Regulation, the possibility for the shareholders of that merging company to have recourse to such a procedure, and include details of the conduct and (if known) outcome of that procedure;
(
k
) either
(i) confirm that the merger is not a merger or acquisition which is referred to in
section 16
of the
Competition Act 2002
and to which paragraph (
a
) or (
b
) of section 18(1) of that Act applies or which is referred to in section 18(3) of that Act and which has been notified to the Competition Authority in accordance with that subsection, or
(ii) where the merger is such a merger or acquisition, confirm, and exhibit the original or a true copy of any document evidencing
(I) that the Competition Authority has determined under section 21 or 22 of that Act that the merger may be put into effect, or
(II) that the Competition Authority has made a conditional determination (within the meaning of that Act) in relation to the merger, or
(III) confirm that the period specified in section 21(2) of that Act has elapsed without the Competition Authority having informed the undertakings which made the notification concerned of the determination (if any) it has made under paragraph (
a
) or (
b
) of section 21(2) aforesaid in relation to the merger, or
(IV) confirm that a period of four months has elapsed since the appropriate date (within the meaning of that Act) without the Competition Authority having made a determination under section 22 of that Act in relation to the merger;
(
l
) either
(i) confirm that the merger is not a concentration with a Community dimension within the meaning of the Merger Control Regulation, or
(ii) where the merger is such a concentration, confirm, and exhibit the original or a true copy of any document evidencing
(I) that the European Commission has issued a decision under Article 8 of the Merger Control Regulation declaring the concentration compatible with the common market, or
(II) that the concentration is deemed to have been declared compatible with the common market pursuant to Article 10(6) of the Merger Control Regulation and specify the basis on which it is so deemed, or
(III) that after a referral by the European Commission to the Competition Authority under Article 9 of the Merger Control Regulation, one of the events specified in subparagraphs (I) to (IV) of paragraph (
k
)(ii), has occurred, and
(
m
) provide details of any requirement under any enactment for any other authorisation, approval, consent, waiver, licence, permission or agreement that affects the merger and confirm, and exhibit the original or a true copy of any document evidencing, that each such requirement has been satisfied.
(4) The Registrar of the Court shall send an attested copy of any order of the Court under Article 26 of the 2001 Council Regulation to the Registrar of Companies by pre-paid registered post or by any other means directed by the Court.
(5) Notwithstanding sub-rule (1), where an Irish merging company intends to seek a certificate under Article 25 of the 2001 Council Regulation and to join in an application under Article 26 of the 2001 Council Regulation in respect of the same merger, it shall be permissible for all of the merging companies intending to seek relief under Article 26 of the 2001 Council Regulation in respect of that merger to issue a single originating notice of motion in which is sought both the relief sought by the Irish merging company under Article 25 and, contingently on that relief being given, the relief sought by all of the merging companies under Article 26. In such case, the Irish merging company may seek relief under Article 25 on the date first fixed for the hearing of that originating notice of motion, and the Court may, on that date, give such directions for the further conduct of the proceedings and adjourn the application for other relief as it thinks appropriate.
27. (1) The Court may direct that all proceedings in relation to the same merger (including any proceedings under Regulation 12 of the 2007 Regulations or Article 26 of the 2001 Council Regulation) be listed together for hearing in such sequence as the Court may direct.
(2) Where, in any proceedings under this Part, a document exhibited to any affidavit or produced to the Court is not in one of the official languages of the State, a translation thereof into the Irish or English language, certified by a person competent and qualified for the purpose, shall be admissible as evidence of same. The competence and qualification of the translator shall be verified by affidavit.
XIV. Applications under Chapter 6 of Part 14 of the Act
28. (1) An application to the Court for relief under section 861 of the Act shall be brought by motion on notice in the proceedings to which the application relates, grounded on an affidavit. Copies of the notice of motion, grounding affidavit and any exhibits shall also be served on the Director.
(2) An application to the Court requesting an order under section 862 of the Act shall be by notice of motion in the proceedings concerned, grounded on an affidavit.
29. In any proceedings in the Court to which section 863 of the Act applies, the Registrar of the Court shall send a copy of the order of the Court 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.
XV. Applications under Chapter 2 of Part 15 of the Act
30. (1) An application to the Court by the Supervisory Authority for an order under section 933(4) of the Act shall be commenced by way of originating notice of motion and conducted in accordance with Order 84B.
(2) An application to the Court by the Supervisory Authority for an order under section 941(5) of the Act or under section 906(4) for an order under section 941(6) of the Act shall be commenced by way of originating notice of motion and conducted in accordance with Order 84B.
(3) An appeal to the Court under section 933(9), section 933(11) or section 934(10) of the Act shall be commenced by way of originating notice of motion and conducted in accordance with Order 84C.”
Schedule 2
Appendix M: Proceedings under Part 11 of the
Companies Act 2014
(Winding up of Companies)
____
No. 1
O. 74, r. 5
TITLE OF PROCEEDINGS
THE HIGH COURT
20 No.
In the matter of (
insert full name of company
) and in the matter of the
Companies Act 2014
NOTE:—the words “in liquidation” should be inserted after the name of the company in forms used subsequent to the date of the order or resolution to wind up.
____
No. 2
O. 74, r. 7
PETITION (GENERAL FORM)
[
Title as in Form No. 1
]
To the High Court.
The humble petition of (
insert full name and address of petitioner stating whether a creditor, a contributory or a liquidator within the meaning of Article 2 of Council Regulation (EC) No. 1346/2000 in main insolvency proceedings
) shows as follows
31. An application for the appointment of a person as liquidator shall, in addition to any other evidence the Court may require, be supported by an affidavit sworn by that person—
(
a
) verifying compliance by the person with the requirements for qualification for appointment as liquidator specified in sections 633 and 634 of the Act and in particular specifying—
(i) within which of the five categories in the Table in section 633 of the Act the person falls (and where the person falls within the fifth category, particulars of the authorisation issued by the Supervisory Authority) and
(ii) particulars of the amount and terms of such indemnity in place in relation to the person as may have been prescribed by regulations made by the Supervisory Authority under section 634 of the Act, and
(
b
) confirming that the person is not, by virtue of section 635 of the Act, disqualified from appointment as a liquidator.
32. In an order appointing a liquidator in accordance with section 575 of the Act, which may be in the Form No. 12, the Court may include such consequential or supplemental orders or directions as it considers necessary or appropriate in the circumstances.
33. The Court may at any time after a person has been appointed as a liquidator, require verification by affidavit or otherwise that the person is, or as the case may be, remains, qualified for appointment as a liquidator of a company in accordance with sections 633 and 634 of the Act, and is not disqualified from acting as liquidator by virtue of section 635 of the Act.
34. Every appointment of a liquidator shall be advertised in such manner as the Court shall direct.
35. (1) Without limiting the power of the Court to make such an order of its own motion in accordance with section 638(1) of the Act, an application to the Court by a member, creditor, liquidator or the Director under that sub-section to appoint a liquidator if from any cause whatever there is no liquidator acting, or on cause shown, to remove a liquidator and appoint another liquidator, shall be by motion on notice to the liquidator (if any).
(2) Where an order is made by the Court of its own motion appointing or removing a liquidator, the registrar of the Court shall
(
a
) for the purposes of section 643(7) of the Act, deliver or cause to be delivered by registered prepaid post or by electronic means to the liquidator a copy of the Court’s order, unless the liquidator or his or her duly authorised representative was present in Court when the order was made, and
(
b
) for the purposes of section 643(8) of the Act, send a copy of the Court’s order to the Registrar of Companies by registered prepaid post or by such other means as may be agreed between the registrar of the Court and the Registrar of Companies.
(3) Where an order is made by the Court appointing or removing a liquidator on application made to it, the applicant shall
(
a
) for the purposes of section 643(7) of the Act, deliver or cause to be delivered by registered prepaid post or by electronic means to the liquidator a copy of the Court’s order, unless the liquidator or his or her duly authorised representative was present in Court when the order was made, and
(
b
) for the purposes of section 643(8) of the Act, send a copy of the Court’s order to the Registrar of Companies by registered prepaid post or by such other means as may be permitted by the Registrar of Companies.
36. A liquidator, or any member of the committee of inspection of a company, or any other person employed in or in connection with the winding up of the company shall not under any circumstances whatever accept from or arrange to accept from any solicitor, auctioneer or other person connected with the company any gift, gratuity, remuneration, emolument, or pecuniary or other consideration or benefit whatever in addition to or apart from such remuneration as he may properly be entitled to under the provisions of the Act or this Order; nor shall any such person so employed as aforesaid give up or arrange to give up to any such solicitor, auctioneer or other person any portion of his proper remuneration.
37. An application to the Court by a creditor or contributory under section 629(8) of the Act to set aside a purchase allegedly made in contravention of section 629(3), 629(6) or 629(7) of the Act shall be by notice of motion grounded upon an affidavit of the moving party. Notice of the application shall be served on the liquidator, on any member of a committee of inspection to whom the application relates, and on any other person the Court directs.
Remuneration of liquidator
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) 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).
(3) 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 the particulars required by section 647(3) of the Act.
(4) 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.
IX. Proceedings by or against directors, promoters and officers when the company is being wound up by the Court
39. (1) An application made to the Court under—
(
a
) section 132 of the Act,
(
b
) section 234 of the Act,
(
c
) section 608 or 609 of the Act,
(
d
) section 610 or 611 of the Act,
(
e
) section 612 or 613 of the Act,
shall be made by motion in which shall be stated the nature of the declaration or order for which application is made and the grounds of the application, and notice of such motion, together with a copy of every report and affidavit upon which it is intended to be grounded, shall be served personally on every person against whom an order is sought, not less than seven clear days before the day named therein for hearing the application.
(2) Where the application is not made by the liquidator it shall, in addition to any other person to whom notice of it is to be given, be made on notice to the liquidator.
(3) Where the application is made—
(
a
) by the liquidator, he may make a report to the Court stating any relevant facts and information which he shall verify by affidavit,
(
b
) by any other person, it shall be supported by affidavit to be filed by him.
(4) The Court may give such directions as to the procedure for the hearing of the application and may direct that the date fixed for the hearing shall be advertised in such form as the Court may approve, and on the hearing the Court may allow any person interested to appear either by counsel or in person and to cross-examine any of the witnesses giving evidence or to give evidence.
X. Committee of inspection; meetings of creditors and contributories
Committee of inspection
40. (1) Where a meeting of the creditors is being summoned under section 666 of the Act, the liquidator shall give notice in writing in the Form No. 14 seven clear days before the day appointed for such meeting to every creditor of the time and place appointed for such meeting and that the purpose of such meeting or meetings is to determine whether a committee of inspection is to be appointed and who are to be the members of the committee if appointed. If the liquidator considers it necessary, such notice may also be given by advertisement. The liquidator or, if he is unable to act someone nominated by him, shall act as chairman of such meeting.
(2) An application to the Court under section 666(4) of the Act shall be made by motion on notice to the person to whom the application relates, to the liquidator and to any other person directed by the Court to be given notice (but in the case of a creditors’ voluntary winding up, the application to the Court under section 667(4) of the Act shall be made by originating notice of motion on notice to the person to whom the application relates, to the liquidator and to any other person directed by the Court to be given notice).
(3) An application to the Court under section 668(7) of the Act or for the leave of the Court under section 668(9) of the Act shall be made by motion on notice to the members (or, as the case may be, the other members) of the committee of inspection and the liquidator, but in the case of a creditors’ voluntary winding up, the application shall be by originating notice of motion.
41. Every appointment of a committee of inspection shall be advertised by the liquidator in such manner (if any) as he considers necessary.
Meetings of creditors and contributories
42. (1) When the Court directs a meeting of the creditors or contributories of the company to be summoned under section 566 of the Act, the liquidator shall give notice as required by section 691 of the Act in the Forms Nos. 15 or 16 to every creditor or contributory of the matter upon which the Court desires to ascertain the wishes of the creditors or contributories. If the Court so directs, such notice may be given by advertisement in accordance with section 689(2) of the Act.
(2) The chairperson’s report to the Court of the result of the meeting shall be in the Form No. 17.
43. An affidavit by the liquidator or creditor, or the solicitor or clerk of either of such persons, or as the case may be, by some officer or clerk of the company or its solicitor that the notice of any meeting has been duly posted, shall be sufficient evidence of such notice having been duly sent to the person to whom the same was addressed.
44. Every instrument of proxy shall be in either the Form No. 18 or the Form No. 19.
XI. Disclaimer
45. (1) Any application in a winding up by the Court for leave to disclaim any part of the property of a company pursuant to section 615(2) of the Act shall be made
ex parte
, and in any other case by originating notice of motion. Such application shall be grounded on an affidavit showing who are the parties interested in the property and what their interests are. On the hearing of the application, the Court shall give directions and in particular directions as to the notices to be given to the parties interested or any of them and as to advertisements to be published and may adjourn the application to enable any such party to attend.
(2) Where a liquidator disclaims a leasehold interest he shall forthwith deliver the disclaimer to the Registrar of Companies. The disclaimer shall contain particulars of the interest disclaimed and a statement of the persons to whom notice of the disclaimer has been given. Until the disclaimer is so delivered it shall be inoperative. A disclaimer shall be in the Form No. 20 and a notice of disclaimer in the Form No. 21.
(3) Where any person claims to be interested in any part of the property of a company which the liquidator wishes to disclaim, he shall at the request of the liquidator furnish a statement of the interest so claimed by him.
46. (1) Subject to sub-rule (2), any application under section 616(3) and section 616(4) of the Act for an order for the vesting of any disclaimed property in, or the delivery of any such property to, any persons shall be made by originating motion
ex parte
, grounded on the affidavit filed on the application for leave to disclaim such property.
(2) The Court may, in accordance with section 616(3), direct notice of the application to be given to such person or persons as it considers appropriate and where the application relates to disclaimed property of a leasehold nature and it appears that there is any mortgagee by demise, chargeant or under-lessee of such property, the Court may direct that notice shall be given to such mortgagee, chargeant or under-lessee that, if he does not apply for such a vesting order within the time to be stated in the notice, he will be excluded from all interest in and security upon the property; and the Court may for those purposes adjourn the original application. If at the expiration of the time so stated in the notice such mortgagee, chargeant or under-lessee fails himself to apply for a vesting order, the Court may, subject to section 616, make an order vesting the property in the original applicant and excluding such mortgagee, chargeant or under-lessee from all interest in or security upon the property.
XII. List of contributories in a winding up by the Court
47. Any list of contributories made out in accordance with section 656 of the Act shall be verified by the affidavit of the liquidator in the Form No. 22 and shall, so far as is practicable, state the address of and the number of shares or extent of interest to be attributed to each contributory and the amount called up, and the amount paid up in respect of such shares or interest and distinguish the several classes of contributories. The liquidator shall, in relation to representative contributories or contributories liable for the debts of others, as far as practicable, observe the requirements of section 656(4) of the Act.
XIII. Delivery of property of company to liquidator
48. An application to the Court by the liquidator under section 673(2) and (3) of the Act shall be by motion on notice to the person intended to be affected, grounded on an affidavit sworn by or on behalf of the liquidator, but such application may be heard and determined
ex parte
in the first instance in any case in which the Court considers it necessary in the interests of justice.
XIV. Calls
49. Every application to the Court under section 657(2) and (3) of the Act to make any call on the contributories or any of them shall be made by motion on notice in the Form No. 24 stating the proposed amount of such call. Such motion which shall be grounded on an affidavit of the liquidator in the Form No. 25 shall be served six clear days at the least before the hearing of the application on every contributory proposed to be included in such call, or if the Court shall so direct, notice of such intended call may be given by advertisement in the Form No. 26.
50. When an order for a call has been made, a copy thereof shall be forthwith served upon each of the contributories included in such call together with a notice in the Form No. 27 from the liquidator specifying the amount or balance due from such contributory (having regard to the provisions of the Act) in respect of such call but such order need not be advertised unless for any special reason the Court shall so direct.
51. At the time of making an order for a call the further proceedings relating thereto shall be adjourned to a time subsequent to the day appointed for the payment thereof, and afterwards from time to time, so long as may be necessary. At the time appointed by any such adjournment or upon a motion to enforce payment of a call duly served and upon proof of the service of the order and notice of the amount due and non-payment, an order may be made that such of the contributories who have made default or that such of them against whom it shall be thought proper to make such an order, do pay the sum which by such former order and notice they were respectively required to pay, or any less sum which may appear to be due from them respectively.
XV. Ascertainment of company’s liabilities
52. (1) The advertisement for claims to be published by the liquidator in the manner provided for in section 622(6) of the Act shall be in the Form No. 30, and such advertisement shall fix a time in accordance with section 674(3) of the Act for the creditors to send their names and addresses and the particulars of their debts and claims, and the names and registered places of business of their solicitors (if any) to the liquidator.
(2) The notice to be given to a creditor in accordance with section 674(2) of the Act shall be in the Form No. 31 and, in the case of any creditor who appears to the liquidator not to have his or its habitual residence, domicile or registered office in the State, shall be in the Form No. 32.
(3) A notice referred to in sub-rule (2) shall be given by delivering it, or by sending it by prepaid ordinary post to the creditor concerned at the address set forth in the statement of affairs or at such address as may be known to the liquidator (or in the case of the liquidator in main proceedings opened in a Member State other than the State, immediately by the means specified in rule 1(4)).
(4) An application to the Court by a creditor under section 674(4) of the Act shall be by motion on notice to the liquidator, grounded on an affidavit sworn by or on behalf of the creditor, which sets out the reasons why an extension of time is sought.
53. The creditors need not attend on the ascertainment by the liquidator of the debts or liabilities nor prove their claims unless they are required to do so by notice from the liquidator but upon such notice being given they shall attend and/or prove the debt or liability claimed within a time to be therein specified.
54. The liquidator shall make out a list of all the debts and liabilities of the company, distinguishing which of the debts and liabilities, or parts of the debts and liabilities claimed are in his opinion legally due and proper to be allowed without further evidence, and which of them in his opinion ought to be proved by the creditor.
55. The liquidator shall give notice in the Form No. 33 to the creditors whose debts and claims have been allowed of such allowance. The liquidator shall give notice in the Form No. 34 to the creditors whose debts or claims have not been allowed without further proof, that they are required to prove the same on or before a day to be specified in the notice, being not less than seven days after such notice and, where required, to attend on the liquidator at a time to be therein specified. If the creditor shall fail to comply with the requirements of this notice, his claim or the part thereof required to be proved may be disallowed by the liquidator.
56. The result of the liquidator’s ascertainment of the debts and claims shall be stated in a certificate to be made by the liquidator and certificates as to any of such debts and claims may be made from time to time. All such certificates shall show the debts or claims allowed and whether allowed as against any particular assets or in any other qualified or special manner.
57. Any application to the Court under section 631 of the Act concerning the exercise or proposed exercise by the liquidator of any power concerning or affecting the ascertainment of the debts and liabilities of the company shall be made by motion on notice to the liquidator grounded upon an affidavit sworn by or on behalf of the moving party.
XVI. Proof of debts
58. Save where the liquidator shall require the same to be proved by affidavit, a debt may be proved in any winding up by delivering or sending through the post particulars of the claim to the liquidator.
59. An affidavit proving a debt may be in the Form No. 35 and may be made by the creditor or by some person authorised by him. If made by a person so authorised, it shall state his authority and means of knowledge. The affidavit shall contain or refer to a statement of account showing the particulars of the debt, and shall specify the vouchers (if any) by which the same can be substantiated and shall state whether the creditor is, or is not, a secured creditor. The creditor shall produce such vouchers if required to do so.
60. A creditor shall bear the cost of proving his debt or claim unless he has been required to attend and prove the same by the liquidator.
61. Unless the liquidator shall in any special case otherwise direct, formal proof of the debts mentioned in section 621(2)(
d
) of the Act shall not be required.
62. Unless otherwise directed or permitted by the liquidator, in any case in which it appears that there are numerous claims for wages by persons employed by the company, it shall be sufficient if one proof for all such claims is made by a foreman or by a trade union official or by some other person on behalf of all such creditors. Such proof, which shall be in the Form No. 36, shall have annexed thereto as forming part thereof, a schedule setting forth the names of the employees and the amounts severally due to them. Any proof made in compliance with this rule shall have the same effect as if separate proofs had been made by each of the said employees.
Production of bills of exchange and promissory notes
63. Where a creditor seeks to prove in respect of a bill of exchange, promissory note or other negotiable instrument or security on which the company is liable, such bill of exchange, note, instrument or security shall, subject to direction of the liquidator or any special order of the Court made to the contrary, be produced to the liquidator and be marked by him before the proof is admitted either for voting or for any other purpose.
XVII. Dividends in a winding up by the Court
Dividend to creditors
64. The liquidator may declare and pay any interim or final dividend to creditors.
65. Upon the declaration of an interim or final dividend by the liquidator he shall send notice thereof to each creditor whose proof has been admitted.
66. If a person to whom dividends are payable desires that they shall be paid to some other person, he may lodge with the liquidator a document in the Form No. 37, which shall be a sufficient authority for payment of the dividend to the person therein named.
XVIII. Payment in of moneys and deposit of securities
67. If the liquidator does not promptly pay moneys received by him into an account with a financial institution to the account of the liquidator of the company in accordance with the order of the Court in that behalf, such liquidator shall, unless the Court otherwise directs, be required to pay the interest which would have been received from the financial institution had the moneys been paid promptly into such account in accordance with the Court’s order.
68. All bills, notes and other securities payable to the company or to the liquidator shall as soon as they come to the hands of the liquidator be deposited by him with a financial institution for the purpose of being presented for acceptance and payment or for payment only as the case may be.
69. At the time of the service of any order for the payment into an account with a financial institution to the account of the liquidator of the company the liquidator shall give to each of the parties served a notice in the Form No. 28 for the purpose of informing him how the payment is to be made.
70. For the purpose of enforcing any order for payment of money into an account with a financial institution to the account of the liquidator of the company, an affidavit of the liquidator in the Form No. 29 shall be sufficient evidence of the non-payment thereof.
71. All bills, notes and other securities delivered into a financial institution to the account of the liquidator of a company shall be delivered out upon a request signed by the liquidator. Moneys placed to the account of the liquidator shall be paid out on cheques or orders signed by the liquidator.
72. All or any part of the money for the time being standing to the credit of the liquidator of a company in an account with a financial institution to the account of the liquidator and not immediately required for the purpose of the winding up may be invested in the name of the liquidator. All such investments shall be made upon a request in the Form No. 38 signed by the liquidator which request shall be a sufficient authority for debiting the account with the purchase money.
73. All dividends and interest to accrue due upon any such investments shall from time to time be received by the financial institution concerned, under a power of attorney to be executed by the liquidator, and be placed to the credit of the account of such liquidator.
XIX. Examination of witnesses
74. The transcript or notes of the examination of a witness shall not be open to the inspection of any person other than the liquidator, unless and until the Court shall otherwise direct. The Court may from time to time give directions in regard to the custody and inspection of the transcripts and notes of examinations and the furnishing of copies or extracts therefrom.
XX. Sanction of the Court
75. (1) Every application by a liquidator under section 631 of the Act, or for an order under any other section of the Act permitting a liquidator to take any step or do any thing, for which provision is not otherwise made in these Rules, shall be made to the Court by motion on notice (where appropriate), or
ex parte
in pursuance of a motion paper setting forth shortly the nature of the application.
(2) Every application by a contributory or creditor or by the Director to the Court under section 631 of the Act shall be made to the court by motion on notice to the liquidator in pursuance of a motion paper setting forth shortly the nature of the application.
XXI. Statements by liquidator to the Registrar of Companies
Conclusion of winding up
76. The winding up of a company shall for the purposes of section 681 of the Act be deemed to be concluded
(
a
) where, in the case of a company wound up by order of the Court, the Court has made an order under section 704(1) of the Act — on the date on which the order dissolving the company has been reported by the liquidator to the Registrar of Companies;
(
b
) in the case of a company wound up by order of the Court where no such order is made, and in the case of a company wound up voluntarily — on the date of the dissolution of the company in accordance with section 706 of the Act, unless on such date any funds or assets of the company remain unclaimed or undistributed in the hands or under the control of the liquidator or any person who has acted as liquidator, in which case the winding up shall not be deemed to be concluded until such funds or assets have either been distributed or paid into The Companies Liquidation Account.
Times for sending liquidator’s statements, and regulations applicable thereto
77. The statements in relation to the proceedings in and the position of the liquidation of a company the winding up of which is not concluded within 12 months after its commencement shall be sent to the Registrar of Companies at the intervals provided by section 681(2) and (3) of the Act unless otherwise ordered by the Court. The statement shall be in the Form No. 39, shall be sent in duplicate, and shall be verified by an affidavit in the Form No. 40, which shall be sent with the statement to the Registrar of Companies.
XXII. Payment of unclaimed dividends and unapplied or undistributable balances into the account prescribed under, section 623(1) of the Act
78. (1) All moneys in hand or under the control of a liquidator representing unclaimed dividends admissible to proof and unapplied or undistributable balances, which under section 623(1) of the Act the liquidator is to pay into the account prescribed under that subsection (in this rule “the Account”) shall be ascertained on the date which is two months—
(
a
) after the date of filing of the application made by the liquidator to the Court under section 704(3) of the Act, where the Court has made an order under section 704(1) of the Act,
(
b
) after the meeting referred to in section 705 or in section 706 of the Act (as the case may be),
and shall be paid into the Account within 14 days from the said date.
(2) When a liquidator desires to pay moneys into the Account he shall make and file an affidavit entitled in the matter of the company in liquidation and in the matter of section 623 of the Act, and setting forth
(
a
) the name of the company of which he is liquidator,
(
b
) his name and address,
(
c
) the date on which the order for the winding up of the company was made or, as the case may be, the resolution for winding up was passed and the date on which he was appointed liquidator,
(
d
) the amount of the moneys to be lodged to the Account,
(
e
) the amount of the said moneys to be lodged which represents unclaimed dividends admissible to proof,
(
f
) the amount of the said moneys to be lodged which represents unapplied or undistributable balances,
(
g
) the names and last known addresses of the persons to whom the unclaimed dividends admissible to proof are payable and the amount payable to each such person,
(
h
) the names and last known addresses of the persons to whom the unapplied or undistributable balances are payable and the amount payable to each such person,
(
i
) the names and last known addresses of any persons (other than those mentioned in paragraphs (
g
) and (
h
)) who have claimed any interest in such unapplied or undistributable balances and the nature of such claim,
(
j
) his submission to answer all such inquiries relating to the moneys so to be lodged as the Court may make or direct.
(2) Such affidavit shall have annexed thereto a schedule as prescribed by Order 77, rule 91. When the liquidator has filed such an affidavit, he shall pay such moneys into the Account or, if the Account is maintained by the Accountant, he shall request the Accountant to issue a direction to the Bank to receive such moneys for the credit of the Account. Any application for such request shall be in the Form No. 7 in Appendix P.
(3) Moneys invested or deposited at interest by a liquidator shall be deemed to be moneys under his control and when such moneys form part of the balance payable into the Account pursuant to sub-rule (1) the liquidator shall realise the investment or withdraw the deposit and shall pay the proceeds into the Account.
(4) Every person who has acted as liquidator, whether the liquidation has been concluded or not, shall furnish to the Minister on request particulars of any moneys in hand or under his control representing unclaimed dividends admissible to proof or unapplied or undistributable balances and such other particulars as the Minister may require for the purpose of ascertaining or getting in any money payable into the Account, and the Minister may require such particulars to be verified by affidavit.
(5) The Minister may at any time request any such person as is mentioned in sub-rule (4) to submit to him an account verified by affidavit of the sums received and paid by him as liquidator of the company and may direct an audit of the account.
(6) If any person who has been requested to furnish particulars of any moneys in hand or under his control representing unclaimed dividends admissible to proof or unapplied or undistributable balances under sub-rule (4) or to submit an account under sub-rule (5) shall fail to furnish such particulars or to submit such account within 21 days after being requested to do so, the Minister may apply to the Court by originating notice of motion and the Court shall make such order as shall be necessary for the purpose of enforcing sub-rules (4) and (5) hereof.
(7) An application under section 623(2) of the Act shall be made by originating notice of motion in which the liquidator who made the lodgment out of which payment is sought and the Minister shall be named as respondents. If such liquidator shall be dead or cannot be traced at the date of such motion the Court may dispense with the necessity of naming the liquidator as a respondent.
(8) An application by a liquidator for payment out of the Account of any costs, expenses and disbursements of the voluntary winding up, shall be made by originating notice of motion in which the Minister shall be named as respondent.
(9) An application under section 623(3) of the Act for payment out of any moneys paid into the Exchequer shall be made by originating notice of motion in which the Minister for Finance shall be named as respondent.
XXIII. File of proceedings
79. All orders, exhibits, admissions, memoranda, attested copies of affidavits, examinations, certificates and all other documents relating to the winding up of the company shall be filed by the liquidator, as far as may be, on one continuous file, and such file shall be kept by him. Every contributory of the company and every creditor whose debt or claim has been allowed, shall (save as otherwise provided in this Order) be entitled at all reasonable times to inspect such file free of charge, and at his own expense to take copies or extracts from any of the documents included therein, or to be furnished with such copies or extracts at a rate not exceeding ten cent per page of seventy-two words, and such file shall be produced in Court, and otherwise, as on occasion may be required.
XXIV. Applications to stay or restrain proceedings or for leave to commence proceedings
80. (1) An application under section 574 of the Act or, as the case may be, section 1331 or section 1346 of the Act, to stay proceedings in an action then pending against the company (or, where relevant, contributory) in the High Court or on appeal in the Court of Appeal or the Supreme Court shall be made by motion in that action on notice to the plaintiff.
(2) An application under section 574 of the Act to restrain further proceedings in any other action or proceeding than those mentioned in sub-rule (1) shall be made by motion in the winding up proceeding on notice to the plaintiff.
(3) An application under section 1332 or section 1347 of the Act for leave to commence proceedings shall be made by motion in the winding up proceeding on notice to the liquidator.
81. An application to stay proceedings in an action or proceeding against a company in voluntary liquidation shall, if such action be pending in the High Court or on appeal in the Court of Appeal or the Supreme Court, be made by motion in that action on notice to the plaintiff, and shall otherwise be made by special summons.
XXV. Applications under sections 450(3), 671, 672, 675 or 676 of the Act
82. (1) An application by a liquidator for an order under section 450(3) of the Act may be made by motion
ex parte
. On such application the Court may give such directions as it thinks proper in regard to the manner in which the meeting or meetings shall be summoned and in relation to the conduct thereof.
(2) When an order for the winding up of a company has been made, applications under sections 671, 672 or 675 of the Act may be made by motion
ex parte
.
(3) When a petition for the winding up of a company has been presented an application under section 675 of the Act may be made by motion
ex parte
.
(4) An appeal by a creditor or contributory under section 676(2) of the Act shall be brought by originating notice of motion.
XXVI. Other applications by motion on notice or by originating notice of motion
83. (1) In any winding up an application under sections 87(3), 115, 247, 416(6), 445, 582, 584, 588(4), 599, 600, 601(8), 602(2), 603, 604, 605(3), 606, 608, 610, 612, 613, 614, 630, 632, 636, 637(6), 638, 644(2), 652(2), 655(2)(
d
), 659, 669, 670, 673, 677(5), 678, 684, 697(1)(
b
), 698(9), 706(8), 723, 724, 751, 836, 859, 1278, 1279, 1331 or 1332 of the Act or under any other section of the Act not in this Order expressly provided for, shall, in the case of a winding up by the Court, be made by motion on notice and in the case of a voluntary winding up by originating notice of motion.
(2) Without limiting the generality of sub-rule (1), an application by a creditor under section 582 of the Act shall be made by originating notice of motion, which shall be served on the liquidator (if any) and on the company.
(3) An application under section 1417 of the Act for the enforcement by the Court of an order made by a court of any state recognised for the purposes of section 1417 of the Act and made for, or in the course of, winding up a company shall be made by originating notice of motion.
(4) A liquidator intending to resign in accordance with section 641 of the Act shall give notice to the Court by an application
ex parte
to the Court. On the hearing of the application the Court may, if it thinks fit, direct that notice of the application be served on the petitioner, the company, or any other interested party as may be appropriate.
XXVII. Termination of winding up by the Court
84. When the Court has made an order in accordance with section 704(1) of the Act, the liquidator shall apply by motion to the Court for an order under section 704(3) of the Act at such time as it appears to the liquidator that the affairs of the company have been completely wound up.
XXVIII. Applications in voluntary winding up
85. Every application or appeal to the Court in a voluntary winding up may be made by originating notice of motion, save as otherwise provided in this Order.
XXIX. Forms in voluntary winding up
86. The declaration of solvency referred to in section 580(2) of the Act together with the report and statement of the qualified person referred to in section 580(4) of the Act shall be in the Form No. 41.
87. The statement referred to in section 584 of the Act shall be in the Form No. 42.
88. The liquidator’s final account referred to in sections 705 and 706 of the Act shall be in the Form No. 43.
89. The return of the final meeting under section 705(4) of the Act in a members’ voluntary winding up shall be in the Form No. 44.
90. The return of the final meetings under section 706(4) of the Act in a creditors’ voluntary winding up shall be in the Form No. 45.
Certification of liquidator for the purposes of the Insolvency Regulation
91. For the purposes of section 712 of the Act, any appointment of a liquidator in a creditors’ voluntary winding up may, for the purposes of Article 19 of the Insolvency Regulation, be evidenced by a certificate in the Form No. 47 issued by the Master of the High Court upon verification of that appointment, in the case of a creditors’ voluntary winding up, by affidavit in the Form No. 46 made by the liquidator and in any other case by the production to the Master of a certified copy of the winding up order.
XXX. Applications made by virtue of section 567 of the Act
92. An application to the Court made by virtue of section 567 of the Act and referred to in that section in relation to a company that is not being wound up shall be made by originating notice of motion.
XXXI. Applications under section 819 of the Act
93. (1) An application for a declaration that a person who was a director of an insolvent company be restricted under section 819 of the Act shall be commenced by originating notice of motion in the Form No. 48 and grounded upon the affidavit of the applicant in the Form No. 49. Applications in respect of several directors of one company shall be made on one notice of motion except where the circumstances otherwise require.
(2) The affidavit grounding the application for restriction shall set out all the facts the applicant considers should be brought to the attention of the Court for the purpose of determining
(
a
) whether each of the respondents 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
) whether each of the respondents has, when requested to do so by the liquidator of the insolvent company, cooperated as far as could reasonably be expected in relation to the conduct of the winding up of the insolvent company, and
(
c
) whether there is any other reason for which it would be just and equitable that the respondents, or any of them, should be subject to the restrictions imposed by an order under section 819(1) of the Act.
(3) Motions shall be issued in the Central Office and made returnable for a date not less than 28 days from the date of issue and shall be served with the grounding affidavit on the respondent(
s
) not less than 21 clear days prior to the return date.
(4) An appearance to the notice of motion in the Form No. 50 shall be entered in the Central Office and served on the applicant or where on record his/her solicitor within 10 days of the date of service of the notice of motion.
(5) Where an application is opposed a respondent shall file and serve an affidavit setting out the facts upon which the application is opposed and shall file the affidavit in the Central Office and serve it on the applicant or where on record his/her solicitor not less than four clear days before the return date or such further time as the Court may exceptionally allow.
(6) Where no appearance is entered by or on behalf of a respondent the applicant shall file an affidavit of service in the Central Office not less than two clear days prior to the return date.
(7) Applications for the extension of time for the filing of affidavits by any party shall not be granted save exceptionally where the Court is satisfied that the extension of time is required for good reason.
(8) Applications which are duly served may be determined by the Court on the return date.
(9) Any subsequent application for relief under section 822 of the Act shall be by motion on notice to the original applicant but if the liquidation or receivership (as the case may be) has concluded, the application shall be by motion on notice to the Director.
Order 74A — Proceedings under Part 10 of the
Companies Act 2014
(Examinership)
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of
23
rd June
, 2015.
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 21st day of May, 2015.
Susan Denham
Sean Ryan
Mary Laffoy
Peter Kelly
Michael Peart
Anthony Barr
Gerard Meehan
Stuart Gilhooly
Michael Kavanagh
Mary Cummins
Noel Rubotham
John McMahon
I concur in the making of the following Rules of Court.
Dated this 17th day of June, 2015.
FRANCES FITZGERALD,
Minister for Justice and Equality.
S.I. No. 255 of 2015
RULES OF THE SUPERIOR COURTS (COMPANIES ACT 2014) 2015