The Gazette 1979

JULY-AUGUST

1979

GAZETTE

100 provided as follows: "The directors may from time to time and at any time by power of attorney under seal appoint any company, form or person or any fluctuating body of persons whether nominated directly or indirectly by the directors to be the attorney or attornies . . . . " The Registrar of Titles was not satisfied that the Receiver had power to execute the transfer and the matter was referred to the High Court which held (per Butler J.) that: (i) The use and control of the seal of a company by the Receiver which was not authorised by the Articles of Association was not in accordance with any valid power and thus the fixing of the seal by the Receiver was not a valid or effective sealing by the Company to witness the transfer as its deed. (ii) A company had no power to act by attorney to execute deeds within the State. The reasons stated for so finding was that the legislature found it necessary in Section 40 of the Companies Act 1963 to make special provision to enable a company appoint attornies and hence that, but for that Section, a company had no such power. Section 40 only permitted the appointment of an attorney to execute deeds on behalf of a company in any place outside the State. Thus a company had no power to appoint an attorney to execute deeds within the State. (iii) The transaction could not be validated by Section 46 of the Conveyancing Act 1881. (iv) The present transfer had not been validly executed and was thus ineffective to transfer the legal estate in the property. From this decision of the High Court an appeal was brought to the Supreme Court. Held (per Kenny J.) that: (a) The High Court was correct in (i) above. (b) The High Court was incorrect in

owner of a registered charge. On the 23 October 1965, the Company issued a debenture to the Bank giving, interalia, a specific charge on the lands comprised in the folio. Clause 10 of the debenture gave the Bank power to appoint a receiver with power to take possession of, collect and get in the property charged and such receiver was given power "to sell or concur in the selling, let or concur in the letting, of any of the property charged by this debenture and carry any such sale into effect by deed in the name and on behalf of the Company or otherwise to convey the same to the purchaser". The debenture further provided that the receiver be the agent of the Company and also provided that: "the Company hereby irrevocably appoints any receiver or receivers appointed as aforesaid, the attorney or attornies of the Company for the Company and in its name and on its behalf and as its act and deed to execute, seal and deliver and otherwise perfect any deed, assurance, agreement, instrument or act which may be required or may be deemed proper for any of the purposes aforesaid". On the 12 May 1975, the Bank appointed Mr. M.G. as receiver under the debenture. The instrument of appointment specifying his powers set out the powers conferred in the debenture including that referred to above. On the 25 July 1976, the receiver contracted to sell to the Industrial Development Authority part of the lands comprised in the folio and purported to carry this sale into effect by transfer dated the 8 October 1976. Such transfer was witnessed as follow: "In witness whereof the common seal of the Company has been hereunto affixed by direction of the Receiver as such Receiver, pursuant to the powers vested in him as aforesaid, and the Receiver has signed his name and affixed his seal and the common seal of the Purchaser has been hereunto affixed the day and year first herein written". Article 115 of Table A of the Companies Act 1963 applied to the use of the seal by the Company. Article 129 of the Articles of Association of the Company provided for an official company seal for use abroad under the provisions of the Companies Act 1963. Article

particular case the directors of a company had power to execute a power of attorney depended on the Articles of Association, and if they had no such power, the sanction of a general meeting must be obtained. The Articles of Association of the Company in force at the time of the execution of the debenture did not require that the power of attorney could be given only by the Company in general meeting. (c) As the Receiver had executed the deed of transfer in his own name, Section 46 of the Conveyancing Act 1881 made the deed of transfer fully effective. (d) That the deed was therefore effective to transfer to the I.D.A. the property therein described and the Registrar of Titles was directed to register its effect on the folio. Postscript: In the course of this judgment in the Supreme Court Kenny J. advised how a deed should be executed by a Receiver in exercise of the type of power of sale given him by the debenture in the case. Kenny J. said the receiver should proceed as follows:— (1) By writing the name of the Company and underneath this writing words that indicated that the name of the Company had been written by the Receiver as Attorney of the Company under the power of attorney given him by the debenture. (2) In addition, the receiver should execute the deed in his own name. Kenny J. pointed out that (1) above brought the execution within the words of the debenture itself and (2) gave the Receiver the advantage of Section 48 of the Conveyancing Act, 1881. Folio 43689, Co. Cork, Registered Owner: Cork Shoe Company Limited — Application of Industrial Development Authority: Dealing Number S I 603 / 78 — Supreme Court (per Kenny J., with O'Higgins C.J. and Parke J.) — 9 November 1978 — unreported. REDUNDANCY PAYMENTS ACTS 1967/71 A former employee of an employer who sold his business to a Company has no claim for redundancy payments against such former

(ii) above. A company had power to act by attorney to execute deeds within the State. The inference drawn by the High Court from Section 40 of the Companies Act 1963 was incorrect. Prima facie any company could appoint an attorney to act on its behalf; the attorney was an agent and a company can only act by agents and had implied power to appoint agents. Whether, in any