Financing and Remuneration
The liquidator’s remuneration and expenses are payable in priority to the creditors. In the case of a creditors’ voluntary liquidation, the committee of inspection or the creditors themselves agree the remuneration. It is agreed by the members in a members’ voluntary winding up. The legislation provides for approval of the entitlement to remuneration followed by vouching the amounts claimed.
In the case of a court winding, the court formerly directed the remuneration. Under the 2014 Act, the committee of inspection or creditors agree the remuneration.
The court retains residual powers on remuneration issues. Any creditor or shareholder may apply to the court in any liquidation, on the basis that the liquidator’s remuneration is excessive and the court may make an order in that regard.
A person who provides funds in order to discharge costs on liquidation, other than for the initial creditors meeting and statement of affairs phase, may be reimbursed to the extent provided in the same order of priority as would have been the case, had those cost not been discharged by that person.
This facilitates funding of liquidation. It may, for example, allow a creditor to fund the liquidation, with an entitlement to be reimbursed as to the costs of liquidation.
A provisional liquidator is entitled to receive such remuneration as is fixed by the court. The statutory criteria for fixing remuneration apply.
A liquidator, other than a provisional liquidator, is entitled to remuneration on terms agreed, fixed or as otherwise set below. This may be expressed as a percentage, by reference to time spent, or otherwise by reference to any method or thing.
The terms of a liquidator’s entitlement to remuneration shall be agreed in writing, between the liquidator and the committee of inspection. If there is no committee of inspection or the committee of inspection and the liquidator fail to agree, the terms shall be approved by resolution of the creditors.
In a members’ voluntary winding up, the terms shall be approved by the members of the company in general meeting. Where the creditors or members, having been requested by the liquidator, fail to pass a resolution, the terms may be fixed by the court.
As soon as practicable after appointment, the liquidator shall seek agreement as to remuneration. The liquidator shall cause particulars of the terms on which he seeks entitlement to remuneration to be furnished, to the committee of inspection, creditors, or members as the case may be, or to the court if applicable.
The terms on which a liquidator is to be remunerated may be agreed with the committee of creditors or the creditors or members (in the case of voluntary members winding up), as the case may be. If approval is not forthcoming, the liquidator must apply to the court for approval of the terms of remuneration.
The terms of remuneration may be varied by a subsequent agreement. The variation may not without the consent of the liquidator, reduce the entitlement to remuneration for work actually carried out.
Criteria for Remuneration
In fixing the terms of a liquidator’s entitlement to remuneration and the amount of liquidator’s remuneration, the following are to be taken into account
- the time properly required to be given by the person as liquidator and his assistants in attending to the company’s affairs;
- the complexity of the case;
- any case in which, there falls any responsibility of an exceptional kind or degree;
- the effectiveness with which the liquidator appears to be carrying out, or to have carried out his duties;
- the nature and value of the property with which the liquidator has had to deal.
Remuneration includes remuneration for services provided personally and through his assistants or with his authority.
Claim for Remuneration
The liquidator is entitled to receive payment in respect of remuneration whether for the entire or part of his services, provided that the amount sought to be received, has been approved by the committee of inspection, the creditors, members, or fixed by the court.
Where the terms of remuneration have been agreed, approved or fixed, the liquidator shall cause particulars of the actual amount claimed to be furnished to the relevant parties above and approved. Where it is not agreed/ approved, an application may be made to the court for approval.
The terms on which a liquidator’s entitlement to remuneration, is fixed, may include provision for reference to arbitration of the dispute. If no such provision is included, the liquidator and the creditors/ committee/ members as the case may be, by resolution, may agree to refer to arbitration any disputes regarding the actual amount of remuneration to which a liquidator is to be entitled. In arbitration of a dispute, the matters specified below are to be taken into account.
Court Review of Remuneration
Not later than 28 days after an agreement or approval has been made or given in respect of the terms of the liquidator’s remuneration or a variation of it, any creditor or member may apply to the court to review the terms of the liquidator;s entitlement to remuneration so agreed, approved or varied. The court may confirm the terms as so agreed, or it may alter them.
Not less than 28 days after the date of the agreement or approval, of the actual amount of remuneration, a creditor or member may apply to the court to review the same. The court may confirm or alter the remuneration.
]f the court does not vary the remuneration in a manner that is less favourable to the liquidator, the applicant shall bear the costs. If it does so, the court may make such order as it deems fit in relation to the costs, fees, and expenses of the application.
Where a company is ordered to be wound upon grounds other than that it is insolvent, then the above provisions also apply to the determination of the liquidator’s remuneration.
References and Sources
Companies Act 2014 S.646 – S.649 (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