Examinership

The Examiner

Examiner and the Directors I The examiner is an officer of the court. He is under the control of the court and owes duties of utmost good faith to it. The principal function of the examiner is to investigate the affairs of the company and prepare a report about its prospective survival or otherwise. … Read the rest

Repudiating Contracts

Overview The company as distinct from the examiner may, with court approval, repudiate uncompleted contracts to which it is a party where there are proposals for a compromise or scheme of arrangement. Parties who suffer loss as a result of repudiation become an unsecured creditor for the amount of the loss. … Read the rest

Overview

Nature of Examinership I Examinership seeks to save a fundamentally sound business which is insolvent, in a manner that is not unfair to other interested parties. A company may be insolvent where it is unable to pay its debts as they fall due or where its liabilities are greater than its assets, including contingent liabilities. … Read the rest

Investigations

Investigative Powers An examiner has powers to make investigations for the purpose of the formulation of his report and recommendations. The court may order the examiner to investigate particular matters, including, in particular, alleged default on the part of directors.… Read the rest

Examiner’s Powers

Access to Information Examiners are entitled to access to the company’s books, account and records. They may require persons to give sworn evidence regarding the affairs of the company. Directors, secretaries and other officers of the company are obliged to co-operate with the examiner.… Read the rest

Confirmation

Examiner’s Report Following the meetings of the members and creditors, the examiner prepares a report for the court. This sets out the details of proposals, any modifications, the recommendations of the committee of creditors, the resolutions passed in meetings, a statement of assets and liabilities, a list of creditors and the amount owing, the examiner’s recommendations, certain other matters.… Read the rest

Commencement

Petition for Examinership A petition for examinership may be made by the company itself, its directors, any creditor or least one-tenth in value of its shareholders. The Central Bank only, may petition for examinership in the case of an insurer, a bank and a range of other financial services sectors, intermediaries and service providers.… Read the rest

Approving Proposals

Proposals The principal function of the examiner is to examine the affairs of the company and to formulate proposals for its survival as a going concern. The proposals must be formulated as soon as practicable. This should generally be done within 30 days. … Read the rest

Approval Criteria

Reasonable Prospects There must be a reasonable prospect of the survival of the company and the whole or part of its undertaking as a going concern. A company may be a going concern, even if it has not actively traded in the very recent past because of financial constraints, provided that there is a prior trading record.… Read the rest