Receiver’s Powers
Statutes
Powers of receiver
437. (1) Subject to the provisions of this section, a receiver of the property of a company has power to do, in the State and elsewhere, all things necessary or convenient to be done for or in connection with, or as incidental to, the attainment of the objectives for which the receiver was appointed.
(2) Without limiting the generality of subsection (1) but subject to subsection (4), a receiver of the property of a company has (in addition to any powers conferred by the order or instrument referred to in subsection (4) or by any other law) power to do one or more of the following things for the purpose of attaining the objectives for which he or she was appointed.
(3) Those things are:
(a) to enter into possession and take control of property of the company in accordance with the terms of the order or instrument referred to in subsection (4);
(b) to lease, let on hire or dispose of property of the company;
(c) to grant options over property of the company on such conditions as the receiver thinks fit;
(d) to borrow money on the security of property of the company;
(e) to insure property of the company;
(f) to repair, renew or enlarge property of the company;
(g) to convert property of the company into money;
(h) to carry on any business of the company;
(i) to take on lease or on hire, or to acquire, any property necessary or convenient in connection with the carrying on of a business of the company;
(j) to execute any document, bring or defend any proceedings or do any other act or thing in the name of and on behalf of the company;
(k) to draw, accept, make and endorse a bill of exchange or promissory note;
(l) to use a seal of the company;
(m) to engage or discharge employees on behalf of the company;
(n) to appoint a solicitor, accountant or other professionally qualified person to assist the receiver;
(o) to appoint an agent to do any business that the receiver is unable to do, or that it is unreasonable to expect the receiver to do, in person;
(p) where a debt or liability is owed to the company, to prove the debt or liability in a bankruptcy, insolvency or winding up and, in connection therewith, to receive dividends and to assent to a proposal for a composition or a scheme of arrangement;
(q) if the receiver was appointed under an instrument that created a charge on uncalled share capital of the company—
(i) to make a call in the name of the company for the payment of money unpaid on the company’s shares, or
(ii) on giving a proper indemnity to a liquidator of the company, to make a call in the liquidator’s name for the payment of money unpaid on the company’s shares;
(r) to enforce payment of any call that is due and unpaid, whether the calls were made by the receiver or otherwise;
(s) to make or defend an application for the winding up of the company;
(t) to refer to arbitration or mediation, any question affecting the company.
(4) Subsections (1) and (2) are subject to any provision of the order of the court by which, or the instrument under which, the receiver was appointed, being a provision that limits the receiver’s powers in any way.
(5) The conferral on a receiver, by this section, of powers in relation to property of a company does not affect any rights in relation to that property of any other person other than the company.
(6) In subsections (3) and (5) a reference, in relation to a receiver, to property of a company is a reference to the property of the company in relation to which the receiver was appointed; this subsection is in addition to section 2 (9) providing for construction of references to a receiver of property of a company.
Power of receiver and certain others to apply to court for directions and receiver’s liability on contracts
438. (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 or her 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 permanent 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.
(2) An application to the court under subsection (1), except an application under that subsection by the receiver, shall be supported by such evidence that the applicant is being unfairly prejudiced by any actual or proposed act or omission of the receiver as the court may require.
(3) For the purposes of subsection (1), “creditor” means one or more creditors to whom the company is indebted by more, in aggregate, than €13,000.
(4) A receiver of the property of a company shall be personally liable on any contract entered into by him or her in the performance of his or her functions (whether such contract is entered into by the receiver in the name of such company or in his or her own name as receiver or otherwise) unless the contract provides that he or she is not to be personally liable on such contract.
(5) In those circumstances, the receiver shall be entitled in respect of that liability to indemnity out of the assets of the company; but nothing in subsection (4) or this subsection shall be taken as—
(a) limiting any right to indemnity which the receiver would have apart from this subsection, or
(b) limiting the receiver’s liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.
(6) Subsection (7) applies where a receiver of the property of a company has been appointed or purported to be appointed and it is subsequently discovered that the charge or purported charge in respect of which he or she was so appointed or purported to be appointed was not effective as a charge on such property or on some part of such property.
(7) Where this subsection applies, the court may, if it thinks fit, on the application of the receiver referred to in subsection (6), order that he or she be relieved wholly, or to such extent as the court shall think fit, from personal liability in respect of anything done or omitted by him or her in relation to any property purporting to be comprised in the charge by virtue of which he or she was appointed or purported to be appointed which, if such property had been effectively included in such charge or purported charge, would have been properly done or omitted by him or her and he or she shall be relieved from personal liability accordingly.
(8) In the event of such an order being made, the person by whom such receiver was appointed or purported to be appointed shall be personally liable for everything for which, but for such order, such receiver would have been liable.
Duty of receiver selling property to get best price reasonably obtainable, etc.
439. (1) A receiver of the property of a company shall, in selling property of the company, exercise all reasonable care to obtain the best price reasonably obtainable for the property as at the time of sale.
(2) Notwithstanding the provisions of any instrument and, in the case of paragraph (b), section 438 (4) and (5)—
(a) it shall not be a defence to any action or proceeding brought against a receiver in respect of a breach of his or her 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) a receiver shall not be entitled to be compensated or indemnified by the company for any liability he or she may incur as a result of a breach of his or her duty under that subsection.
(3) A receiver shall not sell by private contract a non-cash asset of the requisite value to a person who is, or who, within 3 years prior to the date of appointment of the receiver, has been, an officer of the company unless the receiver has given at least 14 days’ notice of his or her intention to do so to all creditors of the company who are known to the receiver or who have been intimated to the receiver.
(4) In this section—
“non-cash asset” and “requisite value” have the meanings given to them by section 238 ;
“officer” includes a person connected (within the meaning of section 220 ) with—
(a) a director of the company,
(b) a shadow director of it, or
(c) a de facto director of it.
The text in italics on this page is sourced from the Irish Statute Book and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.