The Gazette 1992

JUNE 1992

GAZETTE

it cannot be effected. Such a letter is a sufficient safeguard for any lender who takes a charge in such circumstances, and this letter should be treated as is if were a Certificate of Registration. Indeed, in that the common parlance of the Irish CRO is that delivery of such particulars have been noted on the "Slavenburg File", in indicative of the "Hibernisation" of this decision and its implications. The Meaning of "Established Place of Business" It is vital to appreciate that unless a company has an established place of business in the State (Republic of Ireland), full registration on the ordinary Register of Charges, or informal " no t a t i on" on the "Slavenburg File" is not required. What then is meant by an "established place of business"? The definition of "established place of business" has not fallen for discussion in the Irish courts. Note though that in Donovan -v- North German Lloyd Steamship Co (1933) IR 33 it was held that service of proceedings on a foreign company was not satisfied by serving the summons on an address in Ireland, because the defendant company, while having an "office", did not have a place of business in the Irish State. Despite the facts that "Apparently the defendant company is a foreign corporation, whose ships from time to time, make calls of port in this country, particularly at Cobh. At Cobh there is, and has been for some time, an office bearing the name of the defendant company in large letters, and this fact and several others were relied upon for the purpose of showing that the defendant company resided in this country in the sense in which a corporation can be said to reside in any country. Reliance was also placed on the fact that the name of the defendant company appeared in the telephone directory, and on the fact, as alleged, that they were the rated occupiers of the premises in which the aforesaid office is situate." However, the lease of the premises was held by another company, which acted as "agent" for not only the defendant company, but also other foreign companies. Here it was held that the defendant company could not have proceedings served upon it.

However, whether the facts of this case would today justify an Irish court to hold that it did not have an established place of business in the context under consideration is debatable. As such, we must confine our consideration to those decisions of the English courts which addressed the issue. Regarded as " t he most apposite case in the present context" 10 is the decision of the Court of Appeal in Re Oriel Ltd. [1985] 3 All ER 216 where the issue of established place of business was considered in the context of the requirement that a foreign company deliver particulars of the charges it creates where it has not registered under the English equivalent to our Part XI Companies Act, 1963. Here, the company concerned was registered in the Isle of Man. Its objects were the acquisition, mortgaging and management of a company which was controlled by a husband and wife who lived in England. Subsequently, the company acquired three garage sites in England and upon entering a solus agreement, charged them to the petrol supplier. Expansion turned to boom and three more sites were acquired, and charged. The management of the company was conducted by the husband-director, who gave as an address the registered office of the company and his own personal address. However, the company was never registered on the UK companies external register. As these things happen, the company was wound up, and the question arose were the charges valid in that they had never been registered? Essential to the argument of the liquidator was that the company had an established place of business in England, and as such the charges ought to have been registered, or, at least, particulars delivered in that the company had never registered on the external register. Faced with these facts, the Court of Appeal decided two particularly contentious issues.

date when it actually created the charge in question. Secondly, as to what was meant by " an established place of business", was said by Oliver LJ to suggest 11 ". . . that it is essential to an 'established place of business' that there should be some visible sign of physical indication that the company has a connection with particular premises. . . Speaking for myself, I think also that when the word 'established' is used adjectively, as it is in [S.lll], it connotes not only the setting-up of a place of business at a specific location, but a degree of permanence or recognisability as being a location of the company's business. If, for instance, agents of an overseas company conduct business from time to time by meeting clients or potential customers in the public rooms of an hotel in London, they have, no doubt, 'carried on business' in England, but I would for my part find it very difficult to pursuade myself that the hotel lounge was 'an established place of business'. The concept, as it seems to me, is of some more or less permanent location,not necessarily owned or even leased by the company, but at least associated with the company and from which habitually or with some degree of regularity business is conducted." On the facts of the present case, it was held that in respect of the first three charges, particulars of these were not required to be delivered to the CRO because the company then did not have an established place of business. However, in respect of the three further charges, particulars of these ought to have been delivered to the CRO because at that time the company had an established place of business. The use of the word "established" connotes some ensconced or settled place of business so, to be an established place of business, that place must have some degree of permanence, and must not be merely transitory or 'happenstantial' on, say, a representative of the company concerned meeting a person in a particular place. Indeed, the very words in S.lll support such a view, in that it implicitly requires a company to which it applies to have a "principal place of business" which is deemed to equate with an Irish registered company's registered office. Indeed, a further test for

Firstly, it was decided that the relevant date for determining

whether or not a company had an established place of business was the

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