The Gazette 1990

GAZETTE

A PRIL 1990

NOTES 1. Only S.125 applies to companies having a share capital (which are by far the most c ommon type of company currently on the register). The matters in respect of which a return must be made under S.125 are set out in Part I of the Fifth Schedule of the Principal Act as amended by S.22 of the 1982 Act. The return must be in the form set out in Part II of that Schedule as amended by S.22 of the 1982 Act. See generally Keane Company Law in the Republic of Ireland (London 1985) Chapter 29. 2. Sections 125 and 126 as amended by S.15 and the First Schedule of the 1982 Act. 3. See S.12(1) - (3) of the 1982 Act. 4. Under Section 12(7) any letter or notice sent to the company may be addressed to its registered office, or, if no office has been registered, to the care of some officer of the company, or if there is no officer of the company whose name and address are known to the Registrar of Companies, may be sent to each of the persons who subscribed the memorandum, addressed to him at the address me n t i o n ed in the memorandum. 5 . Salomon -v- Sáomon & Co. [1897] A.C. 22. f 6 . Attorney General -v- Jameson [1904] 2 I.R. 6 4 4; Short -v- Treasury Commissioners [1948] 1 K.B. 116; Macaura -v- Northern Assurance Co. [1925] A.C. 619. 7 . Re Higginson & Dean, ex parte Attorney General [1899] 1 Q.B. 3 2 5; Re Henderson's (Nigel) Co., Ltd. [1911 ] W.N. 159; Re Home & Colonial Insurance Co (1928) 44 T.L.R. 718. 8. See S.73I1) of the Succession Act 1965. 9. S.28I2) of the State Property Act 1954. Arguably on the terms of s.28(5) personal property is taken unem- cumbered. 10. High Court, 23 November 1984. 11. S.285 of the Principal Act as amended by S.10 of the 1982 Act. 12. Boast -v- Firth (1868) L.R. 4 C.P. 1; Farrow -v- Wilson (1869) L.R. 4 C.P. 7 4 4; See Hepple & O'Higgins Employment Law (4th Ed) (London, 1981) p.231. It would not seem that the employees would be protected by the European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations 1980 (S.I. No. 306 of 1980). These Regulations

register can have potentially serious consequences both for its shareholders and also for those dealing with it. Upon dissolution, the State takes over ownership of all property which had previously been vested in the company. Strictly, therefore, there is no longer a company to which creditors or employees can turn for payment. Despite this fact, the former controllers may purport to carry on business in the name of the company. One must presume that during this period they are incurring personal liability in respect of any " . . . the striking of the company's name off the register can have potentially serious consequences both for its shareholders and also for those dealing with it". transactions effected by them. Furthermore, they would also apopear to be wrongfully interfer- ing with and even dissipating, the property of the State, thereby running the technical risk of actions in trespass, detinue and conversion. In view of the difficulties incurred in such circumstances, it would appear that the only possible solution is to apply to have the company restored to the register, whereupon it is deemed to have continued in existence as if its name had never been struck off.

implement Council Directive No. 77/187/EEC of 14 February 1977. The purpose behind these instruments is to ensure, inter alia that when a business is transferred as a going concern, the transferee will take over the transferor's obligations under c o n t r a c ts of employment with the workforce. It is submitted that there is a number of reasons why the Regulations do not apply. First, the State acquires the company's property not by way of transfer but rather by way of transmission. Art.1 of the Directive and Reg.3 only apply to transfers. Secondly, if the contracts of employment automatically terminate upon dissolution of the company, then the State presumably acquires no obligations thereunder. Finally, the Regulations and Directive apply to the transfer of a business as a going concern: Spijkers -v- Gebroeders Benedik Abattoir CV[1986]E.C.R. 470. Upon an objective reading of S.28 of the State Property Act 1954, it could scarcely be argued that when the State acquired the company's pre-dissolution assets, that it was subsequently to run the company's business itselfl 1 3. Re Cambridge Coffee Room Associa- tion Ltd. [1951] W.N. 621. 14. Eg. under Ss.125 and 126 of the Principal Act. 15. For example, the controllers of the company may be guilty of an offence under Section 19 of the Consumer Information Act 1978 where, on the evidence the company is itself deemed to have committed an offence under the Act. 16 .Re City Equitable Fire Insurance Co. Ltd. 11925] Ch 407. 1 7. Walker -v- Wimborne (1976) 137 CLR 11; Lonhro -v- Shell Petroleum Ltd. [1980] 1 W.L.R. 627; Winkworth -v- Edward Baron Development Ltd. [1987] B.C.L.C. 193; Nicholson -v- Permakraft (N.Z.) Ltd. [1985] 1 N.Z.L.R. 102; Kinsella -v- Russell Kinsella (Pty) Ltd. [1960]A.C. 1526; West Mercia Safety- wear Ltd. -v-flu

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