Restoration

Post-Dissolution

When the fact that the company has been struck off is published in the CRO Gazette, the company is dissolved. When a company has been dissolved, it ceases to exist. It can neither sue nor be sued.  Any of its assets which have not been disposed of (e.g. by a liquidator), vest in the Minister for Public Expenditure / Finance.

A dissolved company may no act and take steps, sue and be sued and dispose of property. The former controllers and third parties may seek to have the company reinstated on the register in order to do such matters or take such steps.

Where a company has been struck off or ceases to exist while still retaining an interest in property, that interest vests in the Minister of Public Expenditure. The Minister may be prepared to grant a waiver or transfer of its interest in the property. Consideration may be payable. In other cases, a fee or nominal fee may be charged, where the interest is minor or nominal.
After strike off, the directors’ duties to comply with obligations under the Companies Act may continue in some respects. Where a company has been struck off for failure to make annual returns or other default, the directors may face proceedings for disqualification or restriction.

A company which has been dissolved can be wound up by the courts.


Administrative Restoration I

The Companies Registration Office itself may reinstate a company which has been struck off the register, in some circumstances. Restoration by the Registrar may take place within 12 months of striking off only.  This is an important practical limitation.  An application to Court is otherwise required.

The applicants who may apply for restoration by the CRO itself on an administrative basis, are determined to some extent by the original basis and circumstances of strike off.   A member, shareholder, officer or a person who is aggrieved may apply for reinstatement. The CRO may restore a company to the registrar if it has reasonable cause to believe that the strike off of the company has disadvantaged the applicant.

The application must be made in the prescribed form within 12 months of dissolution, and the below requirements must be satisfied within 15 months of the dissolution. There is a fast-track procedure which may be available, whereby all application proofs may be filed on a single day.


Administrative Restoration II

There are a number of conditions which must be met.

  • all outstanding statements to the Revenue Commissioners must be returned;
  • fees for the application must be paid;
  • all outstanding annual returns and must be filed;
  • there must be an EEA director, connection or a bond;
  • the requisite returns of directors must be made;
  • confirmation from the Revenue is required that there is no objection to the company being restored.

On completion of the application and on payment of the prescribed fee, the Registrar may restore the company to the register.


Restoration by Court

A company which has been struck off may be reinstated by a court order made within 20 years of dissolution.  The Court may order the reinstatement of the company if it is satisfied that it is just and equitable to do so.  The court may make an order on the application of the company, creditors, members or a person with an interest or entitlement.

The Court must ensure that any default leading to the strike-off will be rectified.  The order may be accordingly, conditional upon outstanding annual returns, revenue returns, and notifications being made within a period.

It must be just and equitable for the court to order restoration. The court must be satisfied that the company was at the time of striking off carrying on business and that is otherwise just that the company be restored.  The Court may make such ancillary orders as may be just.

The application may be made to the High Court or Circuit Court.  The application is made to the circuit where the registered office is situated or if there is no registered office in which the creditor resides or if the creditor is outside the state and there is no registered office to Dublin Circuit Court.

When the company has been restored, it is deemed to have continued in existence as if it had not been struck off the register provided that the order of restorations filed with the Registrar of companies.


Requirements for Application I

The application is made on notice to the Minister for Public Expenditure and the Revenue Commissioners.  In the case of an application by a creditor, the application is to be made on notice to such officers of the company whose names are known or ought reasonably to be known to him. It is also to be notified to such other members or officers (at dissolution) as the CRO, Revenue or Minister for Public Expenditure and Reform on being notified of the application, indicate should be joined.

Generally,  confirmation is required from the CRO, that it has no objection to restoration.  The CRO will usually require that all outstanding annual returns are filed, and may also require an undertaking regarding future returns.

The Chief State Solicitor’s Office must confirm on behalf of the Department of Finance / Public Expenditure that the latter does not object. The Revenue Commissioners must confirm that they do not object.


Requirements for Application II

In the case of a creditor’s application, the CRO must issue a letter of no objection. The conditions differ to those that apply to an application by others.  It is not possible for the creditor to file the outstanding returns and notice must be given to the last director.

Letters of no objection must be obtained from the Chief State Solicitor’s Office and Revenue Commissioners.  An application by a creditor may be made in the Circuit Court instead of the High Court.

The CRO itself may apply to Court for the restoration of a company.  This may be done within 20 years.  Notice is given to persons who were officers of the company.  There is no requirement for a notice to the Minister for Finance / Public Expenditure or the Revenue Commissioners.


Restoration Order I

In making an order on the application of a member or officer of the company, the court, unless reason to the contrary is shown, make it a term that the order shall not have effect unless the following things are done.

  • all outstanding annual returns are delivered;
  • outstanding statements under the Taxes Acts are delivered to Revenue;
  • the Company appoints a director and delivers notification of appointment (the EEA director, connection or bond requirement being fulfilled)

Unless there is a good reason to the contrary, the order of the court shall specify that the above things are to be done notwithstanding that the grounds on which the company was struck off did not relate to that thing.


Restoration Order II

In making an order on the application of a creditor, the court shall direct that within a specified period

  • there shall be procured one or more specified members or officers of the company to deliver all outstanding annual returns;
  • that there is delivered by specified members or officers, all outstanding statements required under Taxes Consolidation Act;
  • the specified members or officers shall take reasonable steps to ensure that the company appoints an EEA resident director or enters a bond.

This requirement may be made notwithstanding that the ground of strike off did not relate to them. In making an order on the application of the creditor, the court may award the costs of the application against the company.


Consequential Orders

On restoration, the company is deemed to have continued in existence as if it had not been struck off. The restoration is retrospective. Subject to any order made by the court,  the restoration of the company to the register shall not affect the rights and liabilities of the company in respect of any debt or obligation incurred or any contract entered by with or on behalf of the company between the date of its dissolution and restoration.

Where the court makes an order restoring a company it may make such directions as it thinks fit for placing the company and other persons as nearly as possible in the same position as if the company had not been struck off.  It may direct the company to change its name if its name is too similar to another company already in the register or a reserved name.

It may order, to the extent it deems fit, that officers of the company or any of them shall be liable for a debt or liability incurred by or on behalf of the company during the period when it was struck off.  It may make such order as it sees fit.


References and Sources

Primary References

Companies Act 2014 (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) Ch. 29 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

Shorter Guides

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

UK Sources

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