Receiver Appointment
Companies Act
Appointment of receiver under powers contained in instrument: construction of such reference
428. In this Part any reference to the appointment of a receiver under powers contained in any instrument includes a reference to an appointment made under powers which, by virtue of any enactment, are implied in and have effect as if contained in an instrument.
CHAPTER 2
Notification that receiver has been appointed
429. (1) Where a receiver of the property of a company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the company or the receiver, being a document on or in which the name of the company appears, shall contain a statement that a receiver has been appointed.
(2) Where—
(a) a receiver of the property of a company has been appointed, and
(b) a winding up of the company is taking place (whether that winding up has commenced before or after that appointment),
every invoice, order for goods or business letter issued by or on behalf of the company or the receiver, being a document on or in which the name of the company appears, shall, in addition to the statement referred to in subsection (1), contain a statement that the company is being wound up.
(3) Where a receiver of the property of a company has been appointed, then—
(a) any website of the company, and
(b) any electronic mail sent to a third party by, or on behalf of, the company,
shall contain a statement that a receiver has been appointed (and such a statement on a website shall be in a prominent and easily accessible place on it).
(4) Where—
(a) a receiver of the property of a company has been appointed, and
(b) a winding up of the company is taking place (whether that winding up has commenced before or after that appointment),
then—
(i) any website of the company, and
(ii) any electronic mail sent to a third party by, or on behalf of, the company,
shall, in addition to the statement referred to in subsection (3), contain a statement that the company is being wound up (and such a statement on a website shall be in a prominent and easily accessible place on it).
(5) In subsections (3) and (4), “third party” means a person other than—
(a) an officer or employee of the company concerned, or
(b) a holding company or subsidiary of the company or an officer or employee of that holding company or subsidiary.
(6) If default is made in complying with subsection (1) or (2)—
(a) the company and any officer of the company who is in default, and
(b) any of the following persons who knowingly and intentionally authorises or permits the default, namely, any liquidator of the company and any receiver,
shall be guilty of a category 4 offence.
(7) If default is made in complying with the requirement under subsection (3) or (4) concerning the company’s website, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.
(8) If default is made by a company, or any person acting on its behalf, in complying with the requirement under subsection (3) or (4) concerning electronic mail, then—
(a) in every case, the company and any officer of it who is in default, and
(b) where the default is made by a person acting on the company’s behalf, that person,
shall be guilty of a category 4 offence.
Information to be given when receiver is appointed in certain circumstance
430. (1) Where a receiver of the whole, or substantially the whole, of the property of a company (referred to subsequently in this section and sections 431 and 432 as the “receiver”) is appointed on behalf of the holders of any debentures of the company secured by a floating charge, then subject to the provisions of this section and section 431 —
(a) the receiver shall forthwith send notice to the company of his or her appointment,
(b) there shall, within 14 days after the date of receipt of the notice, or such longer period as may be allowed by the court or by the receiver, be made out and submitted to the receiver in accordance with section 431 a statement in the prescribed form as to the affairs of the company, and
(c) the receiver shall, within 2 months after the date of receipt of that statement, send to:
(i) the Registrar;
(ii) the court;
(iii) the company;
(iv) any trustees for the debenture holders on whose behalf he or she was appointed; and
(v) so far as he or she is aware of their addresses, all such debenture holders;
a copy of the statement and of any comments he or she sees fit to make on it.
(2) In subsection (3) “initial period of 6 months”, in relation to the receiver, means the period of 6 months falling after the date of his or her appointment.
(3) The receiver shall send to the Registrar—
(a) within 30 days after the expiration of—
(i) the initial period of 6 months, and
(ii) each subsequent period of 6 months,
and
(b) within 30 days after the date on which he or she ceases to act as receiver of the property of the company,
an abstract in the prescribed form showing—
(i) the assets of the company of which he or she has taken possession since his or her appointment, their estimated value and the proceeds of sale of any such assets since his or her appointment,
(ii) his or her receipts and payments during that period of 6 months or, where he or she ceases to act as mentioned above, during the period from the end of the period to which the last preceding abstract related up to the date of his or her so ceasing, and
(iii) the aggregate amounts of his or her receipts and of his or her payments during all preceding periods since his or her appointment.
(4) Where a receiver ceases to act as receiver of the property of the company, the abstract under subsection (3) shall be accompanied by a statement from the receiver of his or her opinion as to whether or not the company is solvent and the Registrar shall, on receiving the statement, forward a copy of it to the Director of Corporate Enforcement.
(5) Where a receiver is appointed under the powers contained in any instrument, this section shall have effect with the omission of the references to the court in subsection (1), and in any other case, references to the court shall be taken as referring to the court by which the receiver was appointed.
(6) Subsection (1) shall not apply in relation to the appointment of a receiver to act with an existing receiver or in place of a receiver dying or ceasing to act, except that, where that subsection applies to a receiver who dies or ceases to act before it has been fully complied with, the references in paragraphs (b) and (c) of it to the receiver shall (subject to subsection (7)) include references to his or her successor and to any continuing receiver. Nothing in this subsection shall be taken as limiting the meaning of the “receiver” where used in or in relation to subsection (3).
(7) This section and section 431 , where the company is being wound up, shall apply notwithstanding that the receiver and the liquidator are the same person, but with any necessary modifications arising from that fact.
(8) Nothing in subsection (3) shall be taken to prejudice the duty of the receiver to render proper accounts of his or her receipts and payments to the persons to whom, and at the times at which, he or she may be required to do so apart from that subsection.
(9) Where the Registrar becomes aware of the appointment of a receiver referred to in this section, he or she shall forthwith inform the Director of Corporate Enforcement of the appointment.
(10) If the receiver makes default in complying with this section, he or she shall be guilty of a category 4 offence.
Contents of statement to be submitted to receiver
431. (1) The statement as to the affairs of a company required by section 430 (the “statement”) to be submitted to the receiver (or his or her successor) shall show as at the date of the receiver’s appointment—
(a) particulars of the company’s assets, debts and liabilities,
(b) the names and residences of its creditors,
(c) the securities held by those creditors respectively,
(d) the dates when those securities were respectively given, and
(e) such further or other information as may be prescribed.
(2) The statement shall be submitted by, and be verified by affidavit of, one or more of the persons who are, at the date of the receiver’s appointment, the directors of the company, or by such of the persons referred to subsequently in this subsection as the receiver (or his or her successor) may require to submit and verify the statement, that is, persons—
(a) who are or have been officers of the company,
(b) who have taken part in the formation of the company at any time within one year before the date of the receiver’s appointment,
(c) who are in the employment of the company or have been in the employment of the company within that year, and are, in the opinion of the receiver, capable of giving the information required,
(d) who are or have been within that year, officers of or in the employment of a company which is, or within that year was, an officer of the company to which the statement relates.
(3) Any person making the statement and affidavit shall be allowed, and shall be paid by the receiver (or his or her successor) out of his or her receipts, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the receiver (or his or her successor) may consider reasonable, subject to an appeal to the court.
(4) Where the receiver is appointed under the powers contained in any instrument, this section shall have effect with the substitution, for references to an affidavit, of references to a statutory declaration; and in any other case, references to the court shall be taken to refer to the court by which the receiver was appointed.
(5) If any person to whom subsection (2) applies makes default in complying with the requirements of this section, he or she shall, unless he or she can prove to the satisfaction of the court that it was not possible for him or her to comply with the requirements of this section, be guilty of a category 3 offence.
(6) References in this section to the receiver’s successor include references to a continuing receiver.
Consequences of contravention of section 430 (1)(b) or 431
432. Where, in contravention of sections 430 (1)(b) and 431 , a statement of affairs is not submitted to the receiver as required by those provisions, the court may, on the application of the receiver or any creditor of the company, and notwithstanding section 431 (5), make whatever order it thinks fit, including an order compelling compliance with sections 430 and 431 .
Disqualification for appointment as receiver
433. (1) None of the following persons shall be qualified for appointment as receiver of the property of a company:
(a) an undischarged bankrupt;
(b) a person who is, or who has, within the period of 12 months before the date of commencement of the receivership been, an officer or employee of the company;
(c) a parent, spouse, civil partner, brother, sister or child of an officer of the company;
(d) a person who is a partner of, or in the employment of, an officer or employee of the company;
(e) a person who is not qualified by virtue of this subsection for appointment as receiver of the property of any other body corporate which is that company’s subsidiary or holding company or a subsidiary of that company’s holding company, or would be so disqualified if the body corporate were a company;
(f) a body corporate.
(2) References in subsection (1) to—
(a) a child of an officer shall be deemed to include a child of the officer’s civil partner who is ordinarily resident with the officer and the civil partner,
(b) an officer or employee of the company include a statutory auditor.
(3) If a receiver of the property of a company becomes disqualified by virtue of this section, he or she shall thereupon vacate his or her office and give notice in writing within 14 days after the date of vacation to—
(a) the company,
(b) the Registrar,
(c) (i) the debenture-holder, if the receiver was appointed by a debenture-holder, or
(ii) the court, if the receiver was appointed by the court,
that he or she has vacated it by reason of such disqualification.
(4) Subsection (3) is without prejudice to sections 430 (3), 436 and 441 .
(5) Nothing in this section shall require a receiver appointed before 1 August 1991 to vacate the office to which he or she was so appointed.
(6) Any person who acts as a receiver when disqualified by this section from so doing or who fails to comply with subsection (3), if that subsection applies to him or her, shall be guilty of a category 2 offence.
Resignation of receiver
434. (1) A receiver of the property of a company appointed under the powers contained in any instrument may resign, provided he or she has given at least 30 days’ prior notice of the date on which the resignation will take effect to—
(a) the holders of charges (whether fixed or floating) over all or any part of the property of the company, and
(b) the company or its liquidator.
(2) A receiver appointed by the court may resign only with the authority of the court and on such terms and conditions, if any, as may be specified by the court.
(3) If a person makes default in complying with subsection (1) or (2), he or she shall be guilty of a category 4 offence.
Removal of receiver
435. (1) The court may, on cause shown, remove a receiver of the property of a company and appoint another receiver.
(2) Notice of proceedings in which such removal is sought shall be served on the receiver and on the person who appointed him or her not less than 7 days before the date of the hearing of such proceedings and, in any such proceedings, the receiver and the person who appointed him or her may appear and be heard.
Notice to Registrar of appointment of receiver, and of receiver ceasing to act
436. (1) If any person obtains an order for the appointment of a receiver of the property of a company or appoints such a receiver under any powers contained in any instrument, he or she—
(a) shall cause to be published in Iris Oifigiúil, and
(b) shall deliver to the Registrar,
within 7 days after the date of the order or of the appointment, a notice in the prescribed form.
(2) When any person appointed receiver of the property of a company ceases to act as such receiver, he or she shall, on so ceasing, deliver to the Registrar a notice in the prescribed form.
(3) If a person makes default in complying with subsection (1) or (2), he or she shall be guilty of a category 4 offence.
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.