S.I. No. 471/2015 - Circuit Court Rules (Companies Act 2014) 2015.

1. An order pursuant to

section 2

of the

Companies (Amendment) Act 1990

and/or

section 509

of the

Companies Act 2014

appointing [Name] as Examiner of [

INSERT NAME OF REGISTERED INDUSTRIAL AND PROVIDENT SOCIETY

(hereinafter the “Society”)]

2. Such directions as may appear appropriate to this Honourable Court in the circumstances.

3. Such further relief as may appear appropriate to this Honourable Court in the circumstances.

4. An order providing for the costs of and incidental to the proceedings on this application.

*NOTE:—It is intended to serve this originating Notice of Motion on (

here insert the name of the Society. This note is unnecessary if the Society is itself the applicant

)

Dated this .. day of 20.

Signed

Applicant /Solicitors for the Applicant

To

The County Registrar

*and to

Respondent /Solicitors for the Respondent

[Notes] (

need not be included in document presented

)

[Note 1] One alternative version only of paragraph 12 must be included.

*Delete where inapplicable.

EXPLANATORY NOTE

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

These rules amend the Circuit Court Rules by the substitution of Order 53 and 53A and Forms numbered 41 and 53A, and the insertion of a new Order 53B and Form 53D, to prescribe procedures to facilitate the operation of the

Companies Act 2014

.

5. The members of the committee of management [or other directing body] of the Society are..and..

6. The Society is *unable/*unlikely to be able to pay its debts. The appointment of an Examiner to the Society is desirable because [

set out reasons

].

7. In respect of

*the latest financial year of the Society that has ended prior to the date of presentation of this originating Notice of Motion

*the financial year of the Society that preceded its latest financial year ending prior to the date of presentation of this originating Notice of Motion

the Society fell to be treated as a small society because [

set out how the qualifying conditions which are stated to be met in the case of the Society, are satisfied

]

8. The *Society/*applicant has approached [

Name of proposed Examiner

] of [

Firm

] and he has agreed to act as Examiner *(and Interim Examiner) of the Society, if so appointed by this Honourable Court.

9. The *Society/*applicant believes that there is a reasonable prospect for the survival of the Society and the whole or any part of its undertaking as a going concern.

10. No resolution subsists for the winding-up of the Society.

11. No order has been made for the winding-up of the Society.

[Note 1] *12. On the .. day of 20the Society passed a resolution directing the members of the committee of management [or other directing body] to take the necessary steps on behalf of the Society to seek the protection of the Court and the appointment of an Examiner. The said resolution was passed in the following circumstances

[

Set out circumstances, including details of the Society’s financial difficulties. There should also be included (or exhibited and verified in the verifying affidavit) a statement of the assets and liabilities of the Society (in so far as they are known) as they stand on a date not earlier than seven days before the presentation of the originating Notice of Motion and as relied on in the report of the independent expert. Set out also particulars of any independent report, which should, unless an application is being made for an order under section 2A of the

Companies (Amendment) Act 1990

and/or

section 513

of the

Companies Act 2014

, be exhibited to the grounding affidavit

].

[Note 1] *12. The application to seek the appointment of an Examiner to the Society arises in the following circumstances [

Set out circumstances, including details of the Society’s financial difficulties and its creditors

].

RELIEFS SOUGHT

TAKE NOTICE that on the.. day of 20. at ..in the forenoon or the first available opportunity thereafter, application will be made on behalf of the applicant in the above entitled proceedings to this Honourable Court sitting at .for the following reliefs

12. In respect of

*the latest financial year of the Company that has ended prior to the date of presentation of this originating Notice of Motion

*the financial year of the Company that preceded its latest financial year ending prior to the date of presentation of this originating Notice of Motion

the Company fell to be treated as a small company by virtue of

section 350

of the

Companies Act 2014

because [

set out the relevant conditions, as specified in section 350 which are met in the case of the company the subject of the originating Notice of Motion

].

13. The *Company/*applicant has approached [

Name of proposed Examiner

] of [

Firm

] and he has agreed to act as Examiner *(and Interim Examiner) of the Company, if so appointed by this Honourable Court.

14. The *Company/*applicant believes that there is a reasonable prospect for the survival of the Company and the whole or any part of its undertaking as a going concern.

15. No resolution subsists for the winding-up of the Company.

16. No order has been made for the winding-up of the Company.

[Note 6] *17. On the .. day of 20the Company passed a resolution directing the board of the Company to take the necessary steps on behalf of the Company to seek the protection of the Court and the appointment of an Examiner. The said resolution was passed in the following circumstances [

Set out circumstances, including details of the Company’s financial difficulties. There should also be included (or exhibited and verified in the verifying affidavit) a statement of the assets and liabilities of the Company (in so far as they are known) as they stand on a date not earlier than seven days before the presentation of the originating Notice of Motion. and as relied on in the report of the independent expert. Set out also particulars of the independent expert’s report, which should, unless an application is being made for an order under

section 513

of the

Companies Act 2014

, be exhibited to the grounding affidavit

].

[Note 6] *17. The application to seek the appointment of an Examiner to the Company arises in the following circumstances [

Set out circumstances, including details of the Company’s financial difficulties and its creditors

].

RELIEFS SOUGHT

TAKE NOTICE that on the.. day of 20. at ..in the forenoon or the first available opportunity thereafter, application will be made on behalf of the applicant in the above entitled proceedings to this Honourable Court sitting at .for the following reliefs

17. (1) When an Examiner is formulating proposals pursuant to section 534 of the Act for a compromise or scheme of arrangement, any application for an extension of time for the delivery by the Examiner of his report thereon, shall be made

ex parte

to the Court within the time for the delivery of the report or as extended by the Court. Any party affected by the extension, may on notice of motion to the Examiner apply to the Court to set the said order aside upon grounds to be specified and verified in an affidavit and on such application, the Court may make such orders it thinks fit.

(2) An application by the Examiner for directions under section 535 of the Act shall be made

ex parte

to the Court in the first instance and the Court may direct service of notice of the application on any person. Any party affected by such directions, may on notice of motion to the Examiner apply to the Court to vary or set aside any directions upon grounds to be specified and verified in an affidavit and on such application, the Court may make vary or set aside such directions as it thinks fit.

Report under sections 534

18. (1) When an Examiner has prepared a report pursuant to section 534 of the Act within the time prescribed or within such time as has been fixed by the Court, he shall effect delivery of his report by making an

ex parte

application to the Court to deliver it.

(2) The report shall contain a full account of each meeting convened by the Examiner and of the proposals put before each such meeting and shall contain as an appendix to the report a copy of the proposals which shall deal with each of the matters specified in section 539 of the Act in the order set out in that section.

(3) The Examiner shall in his application specify whether and if so, what portions of the report should be omitted from delivery under section 534(5) of the Act.

(4) The Examiner shall draw to the attention of the Court any particular aspects of the report which are or may be relevant to the exercise by the Court of any other of its functions under the Act.

(5) When the Examiner has been given leave to deliver his report pursuant to sub-rule (1) and where the Examiner has formulated proposals pursuant to section 534 of the Act for a compromise or scheme of arrangement and has reported to the Court in the period prescribed or within such further period as has been specified by the Court, the Examiner may apply to the Court

ex parte

for an extension of the period of protection pursuant to section 534(4) of the Act for such further period as may be necessary for the Court to enable it to take a decision in relation to the report of the Examiner on the proposals.

(6) On the making of the application, the Court may direct that the Examiner serve notice of the application on such party or parties as the Court thinks fit. The Court may adjourn the application to enable the service to take place, but may extend the period concerned until the adjourned date of the hearing or such other date as to the Court may seem fit, and the Court may further extend the period concerned in the event of any further adjournments of the said hearing.

Rules for conduct of meetings of members or creditors

19. All meetings of members or classes of members or creditors or classes of creditors convened for the purposes of section 534 or section 540 of the Act shall be governed by the following rules

(1) The Examiner shall summon all meetings of creditors and members by sending by post not less than three days before the day appointed for the meeting to every person appearing in the company’s or society’s books to be a creditor of the company or society or, as the case may be, a member of the company or society, notice of the meeting of creditors or members, as the case may be.

(2) The notice to each creditor or member shall be sent to the address given in the report of the Examiner of the company, if any or to such other address as may be known to the Examiner.

(3) An affidavit by the Examiner or Examiner’s solicitor or by some officer or clerk of the company or society, or the company’s or society’s 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.

(4) The Examiner may fix a meeting or meetings to be held at such place as in his opinion is most convenient for the majority of creditors or members, or both, and different times and/or places may be named for meetings of creditors and of members.

(5) The Examiner shall preside at and be chairman of any meeting which he has convened and shall conduct the business of the meeting in an orderly manner so as to ensure the proper discussion of all proposals placed by him before the said meeting.

(6) Where a meeting of creditors or members is summoned by notice, the proceedings and resolutions of the meeting shall unless the Court otherwise orders be valid, notwithstanding that some creditors or members may not have received the notice sent to them.

(7) The Examiner may with the consent of the meeting adjourn from time to time and from place to place but the adjourned meeting shall be held at the same place as the original meeting unless in the resolution for adjournment another place is specified or unless the Court otherwise orders.

(8) A meeting may not act for any purpose except the adjournment of the meeting unless there are present or represented at that meeting, in the case of a creditors meeting, at least three creditors ruled by the Examiner to be entitled to vote or in the case of a meeting of members, at least two members.

(9) If within 15 minutes from the time appointed for the meeting, a quorum of creditors or members as the case may be is not present or represented, the meeting shall be adjourned for the same day in the following week at the same time and place or to such other day or time or place as the Examiner may appoint but so that the day appointed shall be not less than three, nor more than 21 days from the date from which the meeting was adjourned.

(10) The Examiner shall cause minutes of the proceedings of the meeting to be drawn up and entered in a book kept for that purpose and the minutes shall be signed by him.

(11) The Examiner shall cause a list of creditors or members present at every meeting to be kept and every such list shall be signed by him.

(12) A creditor or member may appear either in person or by proxy. Where a person is authorised in the manner provided by section 185 of the Act to represent a corporation at any meeting of creditors or members, such person shall produce to the Examiner a copy of the resolution so authorising him. Such copies shall be under the seal of the corporation or be certified to be a true copy by the secretary or director of the corporation.

(13) Every instrument of proxy shall, as far as possible, be in either the Form 53B or 53C in the Schedule of Forms.

(14) A general and a special form of proxy shall be sent to each of the creditors or members with a notice summoning the meeting and neither the name nor the description of the Examiner or any other person shall be printed or inserted in the body of any instrument of proxy before it is sent.

(15) A creditor or a member may appoint any person a special proxy to vote at any specified meeting or adjournment of that meeting on all questions relating to any matter arising at that meeting or an adjournment of that meeting.

(16) A creditor or member may appoint the Examiner to act as his general or special proxy.

(17) Every instrument of proxy shall be lodged with the Examiner no later than 4.00 in the afternoon of the day before the meeting or adjourned meeting at which it is to be used and the same shall be kept by the Examiner.

(18) No person who is a child shall be appointed a general or special proxy.

(19) Where a company is a creditor, any person who is duly authorised under the seal of such company to act, generally on behalf of the company at meetings of creditors and members, may fill in and sign the instrument of proxy on such company’s behalf and appoint himself to be such company’s proxy and the instrument of proxy so filled in and signed by such person shall be received and dealt with as a proxy of such company.

(20) The Examiner shall have power to allow or disallow the vote of a person claiming to be a creditor or member, if he thinks fit, but his decision may be subject to appeal to the Court. If he is in doubt whether a vote should be allowed or disallowed, he shall allow it and record the vote as such subject to the vote being declared invalid in the event of an objection being taken and sustained by the Court.

Application by company or society under section 537 of the Act

20. An application by the company or society pursuant to section 537 of the Act to repudiate any contract or any application arising out of such repudiation shall be made by motion on notice to the Examiner and on notice to the other contracting party or parties and on notice to any person referred to in section 537(2) of the Act.

Application under section 553 of the Act

21. (1) An application to the Court pursuant to section 553 of the Act for the revocation of confirmation of proposals confirmed by the Court, shall be made

ex parte

for directions as to the proceedings to be taken.

(2) The application shall be grounded on an affidavit which shall specify and supply full particulars of the fraud alleged and shall specify the names and addresses of all parties who have or may have acquired interests or property in good faith and for value and in reliance on the confirmation of the proposals by the Court.

(3) On such application, the Court may make such order and give such directions for the hearing of the application including directions for service of notice of the application on all such parties as appear proper in the circumstances and may give such further directions as to the application, including particularly, whether and if so, how the application should be advertised and if it seems fit, direct the filing of any pleadings in the matter.

(4) A certified copy of an order made in an application mentioned in sub-rule (3) shall be delivered by the person as the Court may direct in accordance with section 553(3) of the Act to the Registrar of Companies; the Central Bank of Ireland (if the company or society to which the order relates is a company referred to in section 510 (2), (3), or (4) of the Act) and, the Director as soon as practicable following its authentication.

Application by Examiner under section 554 of the Act

22. (1) An application by the Examiner pursuant to section 554 of the Act for payment to him of remuneration and costs and reasonable expenses properly incurred by him shall be made by application

ex parte

to the Court and on an affidavit of the Examiner in which he shall

(

a

) set out a full account of the work carried out by him to the date of the application, and

(

b

) set out a full account of the costs and expenses incurred by him, and

(

c

) vouch the costs and expenses incurred by him, and

(

d

) specify what use, if any, he has made of the services of the staff and/or of the facilities of the company to which he has been appointed and the extent of such use, and

(

e

) set out the basis for the proposed remuneration which he is seeking to be paid.

(2) 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 and fix a date for the hearing of the application.

Service

23. Every originating Notice of Motion issued under this Order shall be served, where service is required, by registered post, in any of the modes in which a Civil Bill may otherwise be served or, in the case of service on a company, in any manner permitted by the Act.”

Schedule 2

“Order 53B

Investigation of company’s affairs under Part 13 of the

Companies Act 2014

Interpretation

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

30

th October

, 2015.

We, the Circuit Court Rules Committee, constituted pursuant to the provisions of

section 69

of the

Courts of Justice Act 1936

, by virtue of the powers conferred on us by

section 66

of the

Courts of Justice Act 1924

and

section 70

of the

Courts of Justice Act 1936

, (as applied by

section 48

of the

Courts (Supplemental Provisions) Act 1961

) and

section 27

of the

Courts (Supplemental Provisions) Act 1961

, the European Communities (Rules of Court) Regulations 1972 (

S.I. No. 320 of 1972

), and of all other powers enabling us in this behalf, do hereby, with the concurrence of the Minister for Justice and Equality, make the annexed Rules of Court.

Dated this 14th day of July 2015.

(Signed): Raymond Groarke

(Chairman of the Circuit Court Rules Committee)

Fiona Duffy Coady

Rita Considine

Noel Rubotham

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

Dated this 25th day of October, 2015.

Signed: FRANCES FITZGERALD,

MINISTER FOR JUSTICE AND EQUALITY

S.I. No. 471 of 2015

CIRCUIT COURT RULES (COMPANIES ACT 2014) 2015