The Gazette 1986

GAZETTE

sepTemBER

1986

charge were unregistered . . . Even if a charge has been incorrectly registered (e.g. because the prescribed particulars were delivered out of time) I think there are likely to be very few, if any, creditors who could, on the subsequent liquidation of the company, show that they had suffered any substantial injustice as a result of this erroneous registration." case means that no statutory provision will be taken to prevent a court from enquiring whether an administrative body has exceeded its statutory powers, 60 section 104 will be effective to prevent mistakes of fact being opened to a court, and in the view of Slade J. in ex parte Central Bank of India 61 , even a mistake of law would not take the Registrar outside his statutory powers. Conclusion In Ireland, as in England, 62 the provision that the certificate of the Registrar is conclusive evidence that the requirements of the Companies Act 1963 as to registration have been complied with means just what it says. The registration of a charge cannot be challenged in any judicial proceedings, whether by way of ordinary civil litigation or by judicial review, except where there is some special factor such as fraud or possibly duress. While the effect of the Irish Constitution on this position has never been judicially considered, it is submitted that section 104 of the Companies Act, 1963 is not constitutionally infirm. * Faculty of Law, University College, Cork. The support of the Development Fund, U. C. C. is gratefully acknowledged. Footnotes 1. Companies Act, 1963 ss.99 to 112. 2 . Re Cardiff Workmen's Cottage Co. Ltd. [ 1906] 2 Ch. 627 at 629 per Buckley J., Ussher, Company Law in Ireland p.464; McCormack [1986] J.B.L. 282. 3. The classes of charges which require registration have been progressively broadened since the introduction of the registra- tion provisions, but important forms of security or analogous devices which still do not require registration include leasing transaction, many retention of title agreements and equitable liens. See further Ussher, Company Law in Ireland pp.453-463. 4. Companies Act, 1963, s.99. See, also, Companies Act, 1985 (England) s.395. 5. SeeGoode, Commercial Law (1982) p.771. 6. Registration of Title Act, 1964, s.31. 7. See the Registration of Deeds Act (Ireland) 1707. A significant difference between the systems of registration of deeds and of registration of charges is that in the former the date of registra- tion is the priority point, i.e., the first charge to be registered prevails over any charges subsequently registered without regard to their date of creation while in regard to registration of company charges, as has already been explained, it is the date of creation of the charge which governs priority, provided only that the charge has been registered. For an explanation of the priority rules concerning charges registrable in the Registry of Deeds see Pearce, Land Law (Irish Law Texts) pp.233-234 and Wylie, Irish Land Law (2nd ed.) pp. 121 -123 and 694-702. 8. Permitted in certain broadly interpreted circumstances by Companies Act, 1963, s.31. See McCormack "Extensions of Time for Registration of Company Charges" [1986] J.B.L. 282. 9. (1978) 112 I.L.T.R. 1. See also Re Eric Holmes Ltd. [1965] Ch. 1052; Re C.L. Nye Ltd. [1971] Ch. 442. 10. [1966] Ch. 20. Finally, even if McEldowney's

14. [1971] Ch. 442. 15. At 474.

16. Section 95 of the English Act is the equivalent of section 99 of the Irish Companies Act, 1963, making registrable charges void if not duly registered. 17. At 469-470 18. (1978)112 I.L.T.R. 1. 19. [1985] 2 All E.R. 79 (Q.B.D.) (sub. nom R. -v- Registrar of Companies ex parte Esal (Commodities) Ltd.)-, [1986] 1 All E.R. 105 (C.A.). 20. [1985] 2 All E.R. 79 at 94. 21. Companies Act 1948 (England), s. 101. See now Companies Act, 1985 (England), s.404. 22. [1985] 2 All E.R. 79 at 92. 23. [1969] 2 AC 147. 24. [1986] 1 All E.R. 105 at 113 and 124-125. 25. Section 95 of the Companies Act, 1948, required delivery of "the prescribed particulars of the charge together with the instrument, if any, by which the charge is created or evidenced. . .". The Irish equivalent, section 99(1) of the Companies Act, 1963, differs in a material respect in that it requires delivery only of "the prescribed particulars of the charge, verified in the pre- scribed m a n n e r . . ." 26. [1986] I All E.R. 105 at 125. 31. This opinion is echoed by a passage from the judgment of Megan LJ. in Re C.L. Nye Ltd. [1971] Ch. 442 at 476 which was referred to with approval by Dillon LJ. in the Central Bank of India case (1986] 1 All ER 105 at 126. 32. [1986] 1 All ER 105 at 128. 33. Ibid. at 123 and 117, respectively. 34. Ibid, ax Ml and Ml. 35. Citing Re Eric Holmes (Property) Ltd. [1965] Ch. 1052 at 1072 per Pennycuick J. 36. [1986] 1 All E.R. 105 at 123. 37. Citing by way of example Lazarus Estates Ltd. -v- Beaslev [1956] 1 Q.B. 702. Lawton suggested that a chargee might be estopped from relying on a charge where he failed to disclose facts which might have led the registrar to decline to register the charge: [1986] 1 All E.R. 105 at 118. 38. Citing Re C.L. Nye Ltd. [1971] Ch. 442 at 474 per Russell L.J. 39. See Lombard and Ulster Banking (Ireland) Ltd. -v- Amurec Ltd. (above, notes 9 and 18). 40. The Lombard and Ulster Banking case being an example: Hamilton J. merely cited some of the conclusions from Re C.L. Ney Ltd. [1971] Ch. 442 without any critical analysis of the intellectual difficulties which the case presented. 41 • See Rules oi the Superior Courts, Order 84; Law Reform Commission Report on Judicial Review, pp.9-12. 42. [1969]2 A.C. 147. 43. |1982] ILRM 590. 44. [1986] 1 All E.R. 105 at 122 and 126-127. See also Re C.L. Nve Ltd. [1971] Ch. 442. 45. [1983] ILRM 89. 46. See Ex parte Central Bank of India |1986] 1 All ER 105 at 128. 47. See above, text to note 34. 48. Walsh -v- Minister for Local Government [1929] 1R 377. 49. The State (Abengien) -v- Dublin Corporation [1982] ILRM 590. 50. [1973]IR 140. 51. Ibid, at 146. 52. [1983] IR 289. 53. Ibid, at 305. 54. Ibid, at 306. 55. Above, note (50). 56. See The State (Burke) -v- Lennon [1940] IR 136. 57. See Kelly, The Irish Constitution (2nd ed., 1984) p.363. 58. Above, note 52. See also Foley -v- Irish Land Commission [ 1952] IR 118. 60. [1986] 1 All ER 105 at 123. See also Goode, Commercial Law (1982) p.773. 59. See also Waterford Corporation -v- Murphy [1920] 2 IR 165; Murren -v- Brennan [1942] IR 466; The State (McCarthv) -v- O'Donnell [1945] IR 126. 61. See above, text to note 31. 62. In section 104. 27. Ibid, at 114. 28. Ibid, at MS. 29. Ibid, at 127. 30. Ibid, at 124.

11. [1924] 1 KB 431. 12. [1908] 1 Ch. 152. 13. At 160.

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