Voluntary Initiation
Companies Act
Application of Chapter
578. Save to the extent that the provision expressly provides otherwise, each provision of this Chapter applies only to a members’ voluntary winding up.
Procedure for and commencement of members’ voluntary winding up
579. (1) A company may be wound up voluntarily as a members’ voluntary winding up.
(2) In all cases, save for a case falling within subsection (3), a members’ voluntary winding up shall be commenced in accordance with the Summary Approval Procedure.
(3) In either of the following cases, namely:
(a) on the expiry of the period, if any, that is fixed for the duration of a company by its constitution; or
(b) should such happen, when the event occurs on the occurrence of which a company’s constitution provides that the company is to be dissolved;
a members’ voluntary winding up of the company may, alternatively to the employment of the Summary Approval Procedure for that purpose, be commenced in accordance with section 580 .
Companies of fixed duration, etc.: alternative means of commencing members’ voluntary winding up
580. (1) In a case falling with paragraph (a) or (b) of section 579 (3), a members’ voluntary winding up of a company may be commenced if the company in general meeting has passed a resolution (whether before or after expiry of the period referred to in that paragraph (a) or the happening of the event referred to in that paragraph (b)) that the company be wound up voluntarily and subsections (2) to (4) are complied with.
(2) Where, in either of the cases mentioned in subsection (1), it is proposed to wind up a company voluntarily, the directors of the company or, in the case of a company having more than 2 directors, the majority of the directors may, at a meeting of the directors, make a declaration to the effect that they have made a full inquiry into the affairs of the company, and that having done so, they have formed the opinion that the company will be able to pay or discharge its debts and other liabilities in full within such period not exceeding 12 months after the commencement of the winding up as may be specified in the declaration.
(3) Such a declaration shall have no effect for the purposes of this Part unless—
(a) it is made at a meeting of the directors held not earlier than 30 days before—
(i) the date of the meeting referred to in subsection (1), or
(ii) if the resolution referred to in that subsection is passed by the means provided under section 193 or 194 , the date of the signing of the resolution by the last member to sign,
(b) it states the total amount of the company’s assets and liabilities as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making,
(c) a report made, in accordance with the provisions of that subsection, by a person referred to in subsection (4) is attached to it, and
(d) either—
(i) the company has forwarded with each notice of the meeting at which the resolution is to be considered, or
(ii) if the means referred to in section 193 or 194 for passing the resolution is followed, the company has appended to the resolution,
a copy of the declaration.
(4) The report referred to in subsection (3)(c) is a report drawn up, in the prescribed form, by a person qualified at the time of the report to be appointed, or to continue to be, the statutory auditor of the company and stating whether, in the opinion of that person, the declaration is not unreasonable.
(5) The company shall deliver, within 14 days after the commencement of the members’ voluntary winding up under this section, a copy of the foregoing declaration to the Registrar.
(6) The provisions of this section shall be read and shall operate so that a members’ voluntary winding up under this section may be carried on at a time falling before compliance with the requirement of subsection (5) that a copy of the declaration there referred to be delivered to the Registrar; however — should a failure to comply with that requirement occur — that failure then invalidates the carrying on of that activity, but this is without prejudice to the power of validation conferred on the court by subsection (7).
(7) On application to it by any interested party, the court may, in any case where there has been a failure to comply with subsection (5), declare that the carrying on of the members’ voluntary winding up shall be valid for all purposes if the court is satisfied that it would be just and equitable to do so.
Publication of resolution to wind up voluntarily
581. (1) Where a company has passed a resolution for its voluntary winding up, whether—
(a) the special resolution referred to in section 202 (1)(a)(i) — in a case where the Summary Approval Procedure is employed, or
(b) the resolution referred to in section 580 (1) — where the procedure there mentioned is employed,
it shall, within 14 days after the date of the passing of the resolution, give notice of the resolution by advertisement in Iris Oifigiúil.
(2) If default is made in complying with this section, the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(3) For the purposes of subsection (2), the liquidator of the company shall be deemed to be an officer of the company.
Protections and remedies for creditors in cases where declaration of solvency made
582. (1) This section applies where a company has passed a resolution to wind up voluntarily.
(2) If, on application to it by a creditor of the company in accordance with subsection (3), the court—
(a) is satisfied that such creditor, together with any creditors supporting him or her in the application, represents one-fifth at least in number or value of the creditors of the company, and
(b) is of opinion that it is unlikely that the company will be able to pay or discharge its debts and other liabilities within the period specified in the declaration concerned referred to in section 207 or 580 (2),
the court may order that all the provisions of this Act relating to a creditors’ voluntary winding up shall apply to the winding up of the company.
(3) An application under subsection (2) shall be made within 30 days after the date on which the resolution for voluntary winding up of the company has been advertised under section 581 (1).
(4) If (in a case where the Summary Approval Procedure is employed) an application is made by one or more members of the company in accordance with section 211 to cancel the special resolution referred to in section 202 (1)(a)(i), the court may direct that that application and an application that is made under subsection (2) shall be heard together or may give such other direction in the matter as it thinks just.
(5) If the court makes an order of the kind referred to in subsection (2)—
(a) the person who held the office of liquidator immediately prior to the making of the order, or
(b) if no liquidator is acting, the company to which the order relates,
shall, within 21 days after the date of the making of the order, deliver a certified copy of such order to the Registrar.
(6) If default is made in complying with subsection (5), the person referred to in paragraph (a) of it or, as the case may be, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.
(7) Section 210 (civil sanctions where opinion as to solvency stated in declaration without reasonable grounds) shall apply in relation to a declaration referred to in section 580 (2) and, for this purpose, references in section 210 to the opinion referred to in section 203 (1)(f), 204 (1)(f), 205 (1)(c), 206 (1)(b) or 207 (1)(b) shall be read as references to the opinion referred to in section 580 (2).
Power of company to appoint liquidators
583. The company in general meeting shall appoint one or more liquidators for the purpose of winding up the affairs and distributing the assets of the company.
Duty of liquidator to call creditors’ meeting if of opinion that company unable to pay its debts
584. (1) If the liquidator is at any time of the opinion that the company will not be able to pay or discharge its debts and other liabilities in full within the period stated in the declaration concerned referred to in section 207 or 580 (2), as the case may be, the liquidator shall—
(a) summon a meeting of creditors for a day not later than the 14th day after the day on which he or she formed that opinion,
(b) send notices of the creditors’ meeting to the creditors by post not less than 10 days before the day on which that meeting is to be held,
(c) cause notice of the creditors’ meeting to be advertised, at least 10 days before the date of the meeting, once in Iris Oifigiúil and once at least in 2 daily newspapers circulating in the locality in which the company’s principal place of business in the State was situated during the relevant period, and
(d) during the period before the day on which the creditors’ meeting is to be held, furnish creditors free of charge with such information concerning the affairs of the company as they may reasonably require,
and the notice of the creditors’ meeting shall state the duty imposed by paragraph (d).
(2) The liquidator shall also—
(a) make out a statement in the prescribed form as to the affairs of the company, including a statement of the company’s assets and liabilities, a list of the outstanding creditors and the estimated amount of their claims,
(b) lay that statement before the creditors’ meeting, and
(c) attend and preside at that meeting.
(3) As from the day on which the creditors’ meeting is held under this section, this Act shall have effect as if—
(a) without prejudice to the powers of the court under section 582 (2), the directors’ declaration referred to in section 207 or 580 (2), as the case may be, had not been made, and
(b) the creditors’ meeting and the company meetings at which it was resolved that the company be wound up voluntarily were the meetings mentioned in section 587 ,
and, accordingly, the winding up shall become a creditors’ voluntary winding up and any appointment made or committee established by the creditors’ meeting shall be deemed to have been made or established by the creditors’ meeting so mentioned.
(4) The appointment of a liquidator at a meeting called under this section shall not, subject to subsection (5), affect the validity of any action previously taken by the liquidator appointed by the members of the company.
(5) Where—
(a) the creditors appoint a liquidator at a meeting called under this section, and
(b) there is a dispute as to any or all of the costs, charges or expenses incurred by, the liquidator appointed by the members of the company,
the liquidator appointed by the creditors, or any creditor, may apply to the court to determine the dispute and the court may, on such application, make such order as it thinks fit.
(6) Nothing in this section shall read as taking away any right in this Act of any person to present a petition to the court for the winding up of a company.
(7) If the liquidator fails to comply with subsection (1), he or she shall be guilty of a category 3 offence.
(8) In this section “relevant period” means the period of 6 months immediately preceding the day on which were sent the notices summoning the company meeting at which it was resolved that the company be wound up voluntarily.
CHAPTER 4
Creditors’ voluntary winding up
Application of Chapter
585. Save to the extent that the provision expressly provides otherwise, each provision of this Chapter applies only to a creditors’ voluntary winding up.
Resolution for and commencement of creditors’ voluntary winding up
586. (1) A company may be wound up voluntarily as a creditors’ voluntary winding up.
(2) A winding up of a company as a creditors’ voluntary winding up pursuant to subsection (1) may be initiated by the company in general meeting resolving that it cannot by reason of its liabilities continue its business, and that it be wound up as a creditors’ voluntary winding up.
(3) A company shall be wound up as a creditors’ voluntary winding up—
(a) if a creditors’ meeting is held in accordance with section 584 in relation to the company, or
(b) if the court makes an order under section 582 (2) in relation to the company, or
(c) if, in a case in which—
(i) a special resolution referred to in section 202 (1)(a)(i) — where the Summary Approval Procedure is purported to be employed, or
(ii) the resolution referred to in section 580 (1) — where the procedure there mentioned is purported to be employed,
is purported to be passed, the declaration referred to in section 207 or 580 (2) is not made in accordance with the relevant provisions of Chapter 7 of Part 4 or section 580 , as the case may be.
(4) Where a company has passed a resolution for it to be wound up as a creditors’ voluntary winding up, it shall, within 14 days after the date of the passing of the resolution, give notice of the resolution by advertisement in Iris Oifigiúil.
(5) If default is made in complying with subsection (4), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(6) For the purposes of subsection (5), the liquidator of the company shall be deemed to be an officer of the company.
Meeting of creditors
587. (1) The company shall cause a meeting of the creditors of the company (the “creditors’ meeting”) to be summoned for the day, or the day next following the day, on which there is to be held the meeting at which the resolution for a creditors’ voluntary winding up is to be proposed.
(2) For that purpose, the company shall send to each creditor, at least 10 days before the date of the creditors’ meeting, notice in writing of such meeting.
(3) The notice required by subsection (2) shall—
(a) state the date, time and location of the creditors’ meeting,
(b) state the name and address of the person at that time proposed for appointment as liquidator, if any, and
(c) either—
(i) attach a list of the creditors of the company, or
(ii) notify the recipient of his or her rights under subsection (4), together with details of the location at which the list of creditors of the company may be inspected.
(4) A creditor who has not been provided with a copy of the list of the creditors of the company under subsection (3)(c)(i) may, at any time prior to the holding of the creditors’ meeting—
(a) having given the company 24 hours notice in writing of his or her intention to do so, inspect during business hours the list of creditors of the company at the registered office of the company, or
(b) request the company in writing to deliver a copy of the list of creditors of the company to him or her, and such a request shall be complied with by the company.
(5) That copy may be delivered by the company to the requesting person by post or, with the consent of the requesting person, in any other manner.
(6) The company shall cause notice of the creditors’ meeting to be advertised, at least 10 days before the date of the meeting, once at least in 2 daily newspapers circulating in the district where the registered office or principal place of business of the company is situate; such notice is not required to include the list of creditors attached, pursuant to subsection (3)(c)(i), to the notice required by subsection (2).
(7) The directors of the company shall—
(a) cause a full statement of the position of the company’s affairs, together with a list of the creditors of the company and the estimated amount of their claims, to be laid before the creditors’ meeting, and
(b) appoint one of their number to preside at that meeting and it shall be the duty of the director so appointed to attend the creditors’ meeting and preside at it.
(8) In the case of a company having a sole director, subsection (7)(b) shall be read as imposing the duty there provided on that director.
(9) If the meeting of the company at which the resolution for voluntary winding up is to be proposed is adjourned and the resolution is passed at an adjourned meeting, any resolution passed at the creditors’ meeting shall have effect as if it had been passed immediately after the passing of the resolution for winding up the company.
(10) If default is made by the company—
(a) in complying with subsection (1), (2), (3) or (6), or
(b) in permitting an inspection under subsection (4)(a), or
(c) in complying with a request under subsection (4)(b),
the company and any officer of it who is in default shall be guilty of a category 3 offence.
(11) If default is made by the directors of the company in complying with subsection (7) or by any director in complying with his or her duty under that subsection, the directors or director, as the case may be, shall be guilty of a category 3 offence.
Appointment of liquidator
588. (1) The creditors and the company at their respective meetings mentioned in section 587 may nominate a person to be liquidator for the purpose of winding up the company.
(2) Subject to subsection (4), if—
(a) the creditors and the company nominate different persons, the person nominated by the creditors shall be liquidator, and
(b) if no person is nominated by the creditors, the person, if any, nominated by the company shall be liquidator.
(3) Where a person nominated by the company to be liquidator takes office before the creditors make their nomination and a different person is nominated by the creditors, the first-mentioned person shall, by virtue of subsection (2)(a), vacate office on the second-mentioned person’s being nominated but—
(a) this is without prejudice to subsection (4); and
(b) for the period before the holding of the creditors’ meeting under section 587 , the first-mentioned person’s powers as liquidator are restricted as provided for in section 630 (2).
(4) Where different persons are nominated as liquidator, any director, member or creditor of the company may, within 14 days after the date on which the nomination was made by the creditors, apply to the court for the following order.
(5) That order is an order either—
(a) directing that the person nominated as liquidator by the company shall be liquidator instead of or jointly with the person nominated by the creditors, or
(b) appointing some other person to be liquidator instead of the person nominated by the creditors,
and the court, on the making of an application under subsection (4), may make such an order accordingly.
(6) If at a meeting of creditors mentioned in section 587 a resolution as to the creditors’ nominee as liquidator is proposed, it shall be deemed to be passed when a majority, in value only, of the creditors present personally or by proxy and voting on the resolution have voted in favour of the resolution.
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.