If a members’ voluntary liquidation has continued for more than twelve months, then on the first anniversary, and each subsequent anniversary, the liquidator must convene a members’ meeting. He must summon, giving seven days’ notice, the holding of a general meeting for a day falling not later than 28 days after the anniversary.
He must lay before the meeting, an account of his acts and dealings and of the conduct of the winding up during the preceding year. A return of the account is to be made to the Companies Registration Office within seven days of the meeting.
If a creditors’ voluntary winding up continues for more than twelve months, then on the equivalent dates and on each subsequent anniversary, the liquidator is to summons a meeting of the committee of inspection or if none has been appointed, a meeting of the creditors of the company for the equivalent dates. He is to make the equivalent return to the CRO within seven days of the date of such meeting. The committee may, by resolution, direct the liquidator at such meeting to convene a meeting of the creditors. The liquidator must do so within 21 days.
The liquidator has an obligation to call a creditors’ meeting in a members voluntarily winding up if at any time he forms the opinion that the company is unable to pay its debts. The further meetings in such case are creditors meetings rather than the members’ meetings. Failure by the liquidator to comply is a category 3 offence.
Members & Creditors Meetings
The liquidator shall in the administration of the assets of the company and in its distribution amongst creditors, have regard to any directions given to him by resolution of the creditors or contributories in general meeting. The directions of the creditors are given precedence over those of the contributories (members).
The liquidator may convene general meetings of the creditors or contributories for the purpose of ascertaining their wishes. He shall convene such meetings, at such times as the creditors or contributories, as the case may be, by resolution, direct or whenever requested to do so by at least 10% in value of either body.
Where a court directs the holding of a meeting in the course of winding up, notice may be given by advertisement. The object of the meeting need not be stated in the advertisement. A certified copy of the court order appointing a person as chairman is sufficient authority for a person to so preside. The chairperson shall make a report of the result of the meeting in such form as the court directs.
Where a meeting of creditors, contributories or members is summoned, the proceedings and resolutions are valid notwithstanding that some creditors, contributories or members, may not have received notice.
Convening Meetings I
The following provisions apply, in respect of creditors’ meetings, contributories’ meetings and members’ meetings, held in the course of winding up.
Every person appearing in the company’s books to be a creditor is entitled to attend a meeting of creditors. The liquidator shall give to every person appearing to be contributory, notice of the meeting of contributories. Every person appearing in the company’s books to be a member is entitled to attend the meeting of members.
The liquidator shall give notice in writing to every person entitled to attend the meeting, of the time and place and the subject matter of the meeting, in a prescribed form not less than seven days before the meeting. The notice shall be sent to the address given in the creditor’s proof, or if none, such in the statement of affairs or other address as may be known to the liquidator.
Equivalent provisions apply in respect of each contributory and member. The address in the company’s books or such other address as is known is to be used.
Every such meeting shall be held at a place which in the opinion of the person convening the meeting, is the most convenient for the majority of the creditors, contributories or members, as the case may be. There may be different times or places for such meetings.
Convening Meetings II
Any person, other than the liquidator, who summons a meeting of the creditors, contributories or members is liable for the costs of so doing and shall before the meeting is summoned, deposit with the liquidator such sum as may be required by the liquidator as security for the payment of such costs.
The costs shall be repaid out of the assets of the company, if the court shall by order so directs, or if the creditors or contributories shall by resolution so direct. This does not apply to the statutory creditors’ meetings at the commencement of liquidation.
Where a meeting required under insolvency legislation, is not held within the time required or in the manner required, the ODCE may direct the liquidator to convene the meeting. It may specify the procedures to be followed in convening and holding the meeting, the matters to be done at the meeting and the time and location of the meeting.
The ODCE or its authorised representative may attend the meeting so convened. Failure to comply with ODCE directions constitutes a category 3 offence on the part of the liquidator.
At a meeting summoned by the liquidator, the liquidator or his nominee shall be chairperson. At other meetings, the chairperson shall be such person as the company by resolution shall appoint. This does not apply to the initial creditor’s meeting.
A resolution at a meeting of creditors is deemed to be passed when a majority in number and value of the creditors, present personally or by proxy, vote in favour of the resolution. Equivalent provisions apply to meetings of contributories. This does not apply in a number of cases where other provision is made regarding the resolutions.
The liquidator shall forward to the CRO a copy, certified by him of every resolution of the meeting of creditors, contributories or members, within 14 days of the meeting. Failure to do so is a category 4 offence.
The chairperson of a meeting may, with the consent of the meeting, adjourn it from time to time. 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 the court otherwise orders.
Other than in relation to the election of a chairperson or adjournment, a meeting may not act for any purpose, unless there is present, in the case of a creditors’ meeting, at least three creditors entitled to vote or all the creditors entitled to vote, if three or less, or in the case of a meeting of contributories or members, at least two of them.
If within 30 minutes from the time appointed for the meeting, a quorum is not present or represented, the meeting shall be adjourned to the same day in the following week, at the same time and place or such other day or time or place as the chairperson may appoint. The day so appointed shall be not less than seven and no more than twenty-one days from the date the meeting was adjourned.
In the case of a meeting of creditors in relation to the appointment of a committee of inspection, a person shall not be entitled to vote as creditor unless he has lodged a proof of his debt with the liquidator, not later than the time mentioned for that purpose in the notice.
In the case of other meetings of creditors, a person shall not be entitled to vote unless he has lodged a proof of his debt and the proof has been admitted, wholly or in part, before the date on which the meeting is held. These provisions do not apply to certain creditors or classes of creditors who are not required to prove their debt.
In relation to an unliquidated or contingent debt, the value of which is not ascertained, the chairperson may put an estimated value on the debt, for the purpose of entitlement to vote and admit the creditor’s proof for that purpose.
The chairperson may admit or reject proof for the purpose of voting. An appeal lies to the court against his decision. If the chairperson is in doubt as to whether a proof should be admitted or rejected, he shall mark it as objected and allow the creditor to vote, subject to the vote being declared invalid in the event of an objection being sustained.
The chairperson of a meeting shall cause minutes of the proceedings of the meeting to be drawn up and entered in a book kept for that purpose, which shall be signed by him or by the chairperson, at the next following meeting. He shall cause a list of creditors, contributories and members present at the meeting to be made and kept in such form, as may be prescribed. Such list shall be signed by him. Failure to do so is a category 3 offence.
Secured Creditors I
A creditor shall not vote on a debt on or secured by a promissory note or bill of exchange, unless he is willing to treat the liability on such bill or note of every person who is liable on it, primarily to the company’s liability, and against whom an adjudication order of bankruptcy has not been made, as a security in his hands. For that purpose, the value of such liability may be estimated, and for purposes of voting but not for the purposes of dividend, it may be deducted from liability for the purpose of his proof.
Unless he surrenders his security, a secured creditor shall for the purpose of voting, state in his proof or in the case of a meeting below, particulars of his security; the date when it was given; and the value at which he assesses the security. He is entitled to vote only in respect of the balance if any, due to him after deducting the value of the security.
For the purpose of voting at a meeting in a voluntary winding up, other than the initial creditor’s meeting, the secured creditor shall, unless he surrenders the security, lodge with the liquidator, a statement stating the matters above.
Secured Creditors II
A secured creditor, who votes in respect of the whole of his debt, other than at the initial creditor’s meeting, shall be deemed to surrender his security unless the court, on the application is satisfied that the omission has arisen from inadvertence.
The liquidator may, within 28 days of the use of the proof or statement above, for the purpose of voting at a meeting, (other than the initial creditor’s meeting) require the creditor concerned to give up his security for the benefit of the creditors generally on payment to the creditor of the estimated value in that proof or statement. If the creditor concerned, before being so required to give the security up, corrects the valuation by furnishing a new proof, the liquidator may deduct the new value from the debt due.
A creditor, contributory or member may vote in person or by proxy. The instrument of proxy is to be in a prescribed form. A person may be appointed a special proxy to vote at a specified meeting, for or against appointment in office of a specified person as liquidator or member of a committee of inspection, and on all questions relating to a matter other than those above, and arising at the meeting or an adjournment of it.
A general proxy may be appointed. The form of general and special proxy shall be sent to each of the creditors, contributories or members with the notice summoning the meeting. Neither the name nor description of the liquidator or any other person shall be printed in the body of the instrument of proxy before it is sent.
A creditor or contributory or member may appoint the liquidator or if there is no liquidator, the chairperson of the meeting, his general or special proxy.
No person appointed as such general or special proxy shall vote in favour of any resolution which would directly or indirectly place himself, his partner, or employer, in a position to receive any remuneration out of the assets of the company, other than as a creditor rateably with the other creditors of the company. If any person holds one or more special proxies, to vote for an application to the court for the appointment of himself as liquidator, he may use the proxy and vote accordingly.
Every instrument of proxy shall be lodged with the liquidator, in the case of a winding up by the court; with the company at its registered office in the case of creditor’s initial meeting and in the case of other meetings, with the liquidator, If there is no liquidator, it shall be lodged with the person named in the notice convening the meeting. It shall be received not later than 4 pm in the afternoon before the meeting or the adjourned meeting, at which it is to be used.
A minor may not be appointed a general or special proxy. If the creditor is incapable because of infirmity or blindness from writing, a proxy may be accepted, if the creditor has attached his mark or signature in the presence of a witness or adds his description and residence. In this case, all insertions must be in the handwriting of the witness, and the witness must certify, that they have been made by the witness at the request and in the presence of the creditor before the creditor attached his signature or mark.
Where a company is a creditor, a person who is duly appointed under the seal to act generally on behalf of the company at meetings of creditors, members and contributories may complete the instrument of proxy on the company’s behalf. He may appoint himself to be the company’s proxy. The instrument of proxy so filled in and signed by such person shall be received and dealt with as a proxy of that company. A company in this context covers anybody corporate.
References and Sources
Companies Act 2014 S. 689- S. 703 (Irish Statute Book)
Companies Act 2014: An Annotation (2015) Conroy
Law of Companies 4th Ed. (2016) Ch. 25 Courtney
Keane on Company Law 5th Ed. (2016) Part VIII Hutchinson
Other Irish Sources
Tables of Origins & Destinations Companies Act 2014 (2016) Bloomsbury
Introduction to Irish Company Law 4th Ed. (2015) Callanan
Bloomsbury’s Guide to the Companies Act 2015 Courtney & Ors
Company Law in Ireland 2nd Ed. (2015) Thuillier
Pre-2014 Legislation Editions
Modern Irish Company Law 2nd Ed. (2001) Ellis
Cases & Materials Company Law 2nd Ed. (1998) Forde
Company Law 4th Ed. (2008) Forde & Kennedy
Corporations & Partnerships in Ireland (2010) Lynch-Fannon & Cuddihy
Companies Acts 1963-2012 (2012) MacCann & Courtney
Constitutional Rights of Companies (2007) O’Neill
Court Applications Under the Companies Act (2013) Samad
Company Law – Nutshell 3rd Ed. (2013) McConville
Questions & Answers on Company Law (2008) McGrath, N & Murphy
Make That Grade Irish Company Law 5th Ed. (2015) Murphy
Company Law BELR Series (2015) O’Mahony
Companies Act 2006 (UK) (Legilsation.gov.uk)
Statute books Blackstone’s statutes on company law (OUP)
Gower Principles of Modern Company Law 10th Ed. (2016) P. and S. Worthington
Company Law in Context 2nd Ed. (2012) D Kershaw
Company Law (9th Ed.) OUP (2016) J Lowry and A Dignam
Cases and Materials in Company law 11th Ed (2016) Sealy and Worthington
UK Practitioners Services
Tolley’s Company Law Handbook
Gore Browne on Companies
Palmer’s Company Law