+44 1372 750800

COMPANIES ACT 1990

COMPANIES ACT 1990 - LONG TITLE
AN ACT TO AMEND THE LAW RELATING TO COMPANIES AND TO PROVIDE FOR RELATED MATTERS.
[22nd December, 1990]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
COMPANIES ACT 1990 - PART VIII
- RECEIVERS
COMPANIES ACT 1990 - SECT 170
Disqualification for appointment as receiver.
170.—The Principal Act is hereby amended by the substitution for
section 315 of the following section—
"315.—(1) None of the following persons shall be qualified for
appointment as receiver of the property of a company—
( a ) an undischarged bankrupt;
( b ) a person who is, or who has within 12 months of the
commencement of the receivership been, an officer or servant of the
company;
( c ) a parent, spouse, brother, sister or child of an officer of
the company;
( d ) a person who is a partner of or in the employment of an
officer or servant of the company;
( e ) a person who is not qualified by virtue of this subsection
for appointment as receiver of the property of any other body
corporate which is that company's subsidiary or holding company or a
subsidiary of that company's holding company, or would be so
disqualified if the body corporate were a company.
References in this subsection to an officer or servant of the
company include references to an auditor.
(2) If a receiver of the property of a company becomes disqualified
by virtue of this section, he shall thereupon vacate his office and
give notice in writing within 14 days to—
( a ) the company;
( b ) the registrar of companies;
( c ) (i) the debenture-holder, if the receiver was appointed by a
debenture-holder, or
(ii) the court, if the receiver was appointed by the court, that
he has vacated it by reason of such disqualification.
(3) Subsection (2) is without prejudice to sections 107, 319 (2)
and 321.
(4) Nothing in this section shall require a receiver appointed
before the commencement of section 170 of the Companies Act, 1990,
to vacate the office to which he was so appointed.
(5) Any person who acts as a receiver when disqualified by this
section from so doing or who fails to comply with subsection (2),
if that subsection applies to him, shall be guilty of an offence
and shall be liable—
( a ) on summary conviction, to a fine not exceeding £1,000 and,
for continued contravention, to a daily default fine not exceeding
£50;
( b ) on conviction on indictment, to a fine not exceeding £5,000
and, for continued contravention, to a daily default fine not
exceeding £250.".
COMPANIES ACT 1990 - SECT 171
Amendment of section 316 of the Principle Act.
171.—Section 316 of the Principal Act is hereby amended by the
substitution for subsection (1) of the following subsections—
"(1) Where a receiver of the property of a company is appointed
under the powers contained in any instrument, any of' the following
persons may apply to the court for directions in relation to any
matter in connection with the performance or otherwise by the
receiver of his functions, that is to say—
( a ) (i) the receiver;
(ii) an officer of the company;
(iii) a member of the company;
(iv) employees of the company comprising at least half in number of
the persons employed in a full-time capacity by the company;
(v) a creditor of the company; and
( b ) (i) a liquidator;
(ii) a contributory;
and on any such application, the court may give such directions, or
make such order declaring the rights of persons before the court or
otherwise, as the court thinks just.
(1A) An application to the court under subsection (1), except an
application under paragraph (a)(i) of that subsection, shall be
supported by such evidence that the applicant is being unfairly
prejudiced by any actual or proposed action or omission of the
receiver as the court may require.
(1B) For the purposes of subsection (1), 'creditor' means one or
more creditors to whom the company is indebted by more, in
aggregate, than £10,000.".
COMPANIES ACT 1990 - SECT 172
Duty of receiver selling property to get best price reasonably
obtainable.
172.—The Principal Act is hereby amended by the insertion after
section 316 of the following section—
"316A.— (1) A receiver, in selling property of a company, shall
exercise all reasonable care to obtain the best price reason ably
obtainable for the property as at the time of sale.
(2) Notwithstanding the provisions of any instrument—
( a ) it shall not be a defence to any action or proceeding
brought against a receiver in respect of a breach of his duty
under subsection (1) that the receiver was acting as the agent of
the company or under a power of attorney given by the company; and
( b ) notwithstanding anything in section 316 (2), a receiver shall
not be entitled to be compensated or indemnified by the company for
any liability he may incur as a result of a breach of his duty
under this section.
( 3 ) ( a ) A receiver shall not sell by private contract a
non-cash asset of the requisite value to a person who is, or who,
within three years prior to the date of appointment of the
receiver, has been, an officer of the company unless he has given
at least 14 days' notice of his intention to do so to all
creditors of the company who are known to him or who have been
intimated to him.
( b ) In this subsection—
(i) 'non-cash asset' and 'requisite value' have the meanings assigned
to them by section 29 of the Companies Act, 1990, and
(ii) 'officer' includes a person connected, within the meaning of
section 26 of the Companies Act, 1990, with a director, and a
shadow director.".
COMPANIES ACT 1990 - SECT 173
Amendment of section 320 of the Principal Act.
173.—Section 320 of the Principal Act is hereby amended by the
substitution for subsection (5) of the following subsection—
"(5) If any person to whom subsection (2) applies makes default in
complying with the requirements of this section, he shall, unless he
can prove to the satisfaction of the court that it was not
possible for him to comply with the requirements of the section, be
liable—
( a ) on summary conviction, to imprisonment for a term not
exceeding six months or to a fine not exceeding £1,000 or to both;
or
( b ) on conviction on indictment, to imprisonment for a term not
exceeding three years or to a fine not exceeding £5,000 or to
both.".
COMPANIES ACT 1990 - SECT 174
Consequences of contravention of section 319 or 320 of the Principal
Act.
174.—The Principal Act is hereby amended by the insertion after of
section 320 the following section—
"320A. Where, in contravention of section 319 (1) ( b ) and
section 320, a statement of affairs is not submitted to the
receiver as required by those provisions, the court may, on the
application of the receiver or any creditor of the company, and not
withstanding the provisions of section 320 (5) (inserted by section
173 of the Companies Act, 1990), make whatever order it thinks fit,
including an order compelling compliance with section 319 and section
320.".
COMPANIES ACT 1990 - SECT 175
Removal of receiver.
175.—The Principal Act is hereby amended by the insertion after
section 322 of the following section—
"322A.—(1) The court may, on cause shown, remove a receiver and
appoint another receiver.
(2) Notice of such proceedings shall be served on the receiver and
on the person who appointed him not less than 7 days before the
hearing of such proceedings and, in any such proceedings, the
receiver and the person who appointed him may appear and be
heard.".
COMPANIES ACT 1990 - SECT 176
Court may determine or limit receivership on application of
liquidator.
176.—The Principal Act is hereby amended by the insertion after
section 322 of the following section—
"322B.—(1) On the application of the liquidator of a company
liquidator. that is being wound up (other than by means of a
members' voluntary winding up) and in respect of which a receiver
has been appointed (whether before or after the commencement of the
winding up), the court may—
( a ) order that the receiver shall cease to act as such from a
date specified by the court, and prohibit the appointment of any
other receiver; or
( b ) order that the receiver shall, from a date specified by the
court, act as such only in respect of certain assets specified by
the court.
An order under this subsection may be made on such terms and
conditions as the court thinks fit.
(2) The court may from time to time, on an application made either
by the liquidator or by the receiver, rescind or amend an order
made under subsection (1).
(3) A copy of an application made under this-section shall be
served on the receiver and on the person who appointed him not
less than 7 days before the hearing of the application, and the
receiver and any such party may appear before and be heard by the
court in respect of the application.
(4) Except as provided in subsection (1), no order made under this
section shall affect any security or charge over the under taking
or property of the company.".
COMPANIES ACT 1990 - SECT 177
Resignation of receiver.
177.—The Principal Act is hereby amended by the insertion after
section 322 of the following section—
"322C.—(1) A receiver of the property of a company appointed under
the powers contained in any instrument may resign, provided he has
given one month's notice thereof to—
( a ) the holders of floating charges over all or any part of
the property of the company;
( b ) the company or its liquidator; and
( c ) the holders of any fixed charge over all or any part of
the property of the company.
(2) A receiver appointed by the court may resign only with the
authority of the court and on such terms and conditions, if any,
as may be laid down by the court.
(3) If any person makes default in complying with the requirements
of this section, he shall be liable to a fine not exceeding
£1,000."
COMPANIES ACT 1990 - SECT 178
Application of section 139 to receivers.
178.—The provisions of section 139 shall, with the necessary
modifications, apply to a company in receivership as if the
references therein to the liquidator and to winding up were
construed as references to the receiver and to receivership.
COMPANIES ACT 1990 - SECT 179
Application of section 299 (2), (4) and (5) of the Principle Act
to receivers.
179.—Section 299 (2), (4) and (5) of The Principal Act shall apply,
with the necessary modifications, to receivers as it applies to
liquidators.