The Gazette 1992

GAZETTE

JUNE

1992

foreign company has an established place of business in Ireland, will the Irish Registrar of Companies register (in the case of foreign companies registered on the external register), and file on the Slavenburg file, (in the case of unregistered foreign companies) particulars of a charge created. It is thought that while this is the present law and practice in Ireland, that it should at least be asked, ought reform be contemplated? At least two possible alternative reforms are open to be adopted by the Oireachtas. On the one hand, reform could follow the lead set by Britain as mentioned above. This, it is submitted, has the effect of narrowing the possible scope of the system for the registration of charges, by turning its face to the reality of many foreign companies being in breach of their obligation to register under the equivalent to our S.352 (1) Companies Act, 1963. Such is a curious development in that the same statute which reversed Slavenburg also extended those charges which require to be registered in Britain, thus making the British Register of Charges more informative in another respect. 13 On the other hand, reform could be achieved by the introduction of a new requirement for registration of all charges (at present registrable under S.99 (2) Companies Act, 1963 in the case of Irish registered companies) created over property situate in Ireland, whether or not the foreign company creating that charge has an established place of business in Ireland. This would have the effect of accepting the realities seen in the Slavenburg decision, and putting them on a formal footing. Such a requirement would only enhance the usefulness of the Register of Charges by making it more complete. Indeed, as with the Slavenburg file itself, such would also cater for the elusive solicitor's letter of undertaking in respect of title documents, which if given in respect of an unregistered foreign company, could not otherwise be discovered by searching any of the other registration systems, such as

the Land Registry or the Registry of Deeds. It is submitted that if and when the Irish legislature embarks upon a further reform of Company Law, that the latter reform option would be the most desirable. The above article is an extract from the forthcoming book "The Law of Private Companies (& Other Business Associations)" by Thomas B. Courtney and Prof. Liam O'Malley which is scheduled for publication by Butterworth (Ireland) Ltd in November 1992. (Copyright 1992 Courtney & O'Malley and Butterworth (Ireland) Ltd.) NOTES 1. For registration of company charges generally, see Keane, "Company Law in "Company Law in Ireland", (1986) Sweet & Maxwell 451-471, Forde, "Company Law" (1985), Mercier 445-449, McCormack, "Registration of Company Charges", (1984) ILT 67 and Gough, "Company Charges", Butterworths. 2. See S.102 (1) and (2) which provides that judgement mortgages should be registered in the CRO. It has been suggested by Judge Keane, op. cit. that non-registration ought to render the judgement mortgage void, but it is respectfully submitted that in that since a judgement mortgage is not "created" by the company concerned, it ought not to be void in that the S.99 (1) consequence of being void is dependent upon a company "creating" a charge. 3. S. 352 (2) Companies Act 1963 provides that various particulars should be included in the list referred to in S. 352 (1) (b), for example, names, address, nationality, business occupation, particulars of other directorships of Irish companies of directors, etc. 4. Form No. IE, 2E, and 3E. See the Companies Registration Office Information Manual. 5. [1980] 1 All ER 955. 6. cf the case of a judgement mortgage registered against a foreign company which has an established place of business in Ireland and which is not registered on the external register. It is submitted that the the Republic of Ireland", (1991) Butterworths, Chapter 23, Ussher,

comments referred to above in the case of judgement mortgages against Irish registered companies applies here, and that the only sanction is a fine, the charge itself remaining valid. 7. See generally, Dine, "Registration of Company Charges", (1991) Business Law Review 31 and Ferran & Mayo, "Registration of Company Charges - The New Regime", (1990) Journal of Business Law 152. 8. See also Re Oriel Ltd [1985] BCLC 343 per Oliver LJ at 346 and see Re Alton Corporation [1985] BCLC 27. 9. See S.103 (1) (a) and (b) for those particulars which the Registrar of Companies is obliged to enter in the register. 10. per Hirst J. in Cleveland Museum of Art -v- Capricorn Art International SA [1990] BCLC 546 at 550i. 11. On the authority of Derverall -v- Grant Advertising Inc [1954] 3 All ER 389. 12. See also Re F.G. (Films) Ltd [1953] 1 All ER 615 and The WorldHarmony [1965] 2 All ER 139; 13. See, for example, the "new" S.395 (2) Companies Act, 1985 (UK). • CLASP Concert CLASP (Concerned Lawyers Association for the Alleviation of Social Problems) are having a charity concert at the Gaiety Theatre, Dublin on Sunday 24 May, 1992. Music will be provided by "Chris Meehan and his Red Neck Friends". Special guest appearance, Mary Black. Tickets are £8.00, £10.00, £12.00, £15.00 available from Box Office, Gaiety Theatre, Dublin 2 or CLASP members, Law Library, Four Courts, Dublin 7, Telephone 720622. All welcome - please support this worthy event. •

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