The Gazette 1990

GAZETTE

A PRIL 1990

continued in existence as if its name hdd not been struck off. Large amounts of tax may have been owing at the date of dissolution of the company. In such cases the Revenue Commissioners may be the most interested parties in having the company restored to the register. However, it has been held that they are only creditors of the company if, and to the extent that they have raised assessments on the company prior to the date upon which its name was struck off, then the Revenue Commiss- ioners will not constitute creditors of the company for the purposes of an application for restoration under Section 12(6). 19 Any application to the court under Section 12(6) must be on notice to the registrar. In practice the court will require a letter from the Registrar stating that all outstanding returns have been made and that they are in order. This is presumably to comply with the requirement of Section 12(6) that the court may only order that the name of the company be restored to the register 'if satisfied that the company was at the time of the striking off carrying on business or otherwise that it is just that the company be restored to the register' (emphasis added). What is to happen then in the case of a company which is struck off at a time when it has either temporarily ceased trading or, indeed, has yet to commence trading? It should be noted that under Section 11 of the 1982 Act the Registrar may (but is not obliged to) strike off the register the name of a company which is not trading. Presumably however, if the company can prove that it wishes to resume or commence trading, the court may then, in its discretion, make an order restoring it to the register. Although not expressly required by Section 12(6), the Court in practice stipulates that no order for restoration will be made unless the Minister for Finance has been put on notice and his consent has been obtained to the making of such an order. Presumably, the reason why the Minister's consent must be obtained is that the company's property will have vested in him from the date of dissolution. If however, the name of the company is restored to the register the

company is deemed to have continued in existence as if its name had not been struck off and accordingly the Minister will be automatically divested of the company's property which then reverts to the company itself. Notably under Section 28(3) of the State Property Act 1954, the vesting of property in the State upon dissolution is expressly made subject to any order restoring the company to the register. The Minister's consent is usually obtained as a matter of course and will be received by way of letter written on his behalf by the Chief State Solicitor. This letter will normally also contain a consent to the application on behalf of the Minister for Industry and Com- merce and on behalf of the Registrar of Companies. Effect of registration As was mentioned above, in the event of the company's name being restored to the register, the company is deemed to have continued as if its name had not been struck off. Its property is returned to it and it may once again sue and be sued. From the point of view of pre-dissolution creditors, their debts are revived and interest will run as if the company had never been struck off. This will be important, not only in respect of trade debts, but more importantly in respect of revenue debts, where arrears may be large and interest rates are high. Where such arrears of interest prove to be excessive, the shareholders may not regard it as commercially wise to revive the company. If they do so they may find that the company has become hopelessly insolvent with liquida- tion as the only real prospect. In such circumstances it may be commercially more prudent for a new company to be formed instead. If the court makes an order restoring the company's name to the register, it may under Section 12(6) give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off. For example, in Re Special directions in restoration order

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Donald Kennyon Ltd., 20 Roxburgh J., in the order restoring the company to the register, provided that in the case of creditors who were not statute-barred at the date of dissolution, the period between that date and the date upon which the company was restored to the register should not be counted for the purposes of the Statute of Limitations. In Re Boxco Ltd 21 particulars of a charge were delivered within 21 days of its creation, to the registrar under the English equivalent of Section 99 of the Principal Act. It was only at this stage that it was discovered that the company had been struck off the register. In restoring the company to the register the court directed that the delivery of particulars of the charge should be regarded as having been properly made. This avoided the necessity of an application subse- quently for leave to extend the time within which to register the charge. 22 Conclusion As we have seen, the striking of the company's name off the

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