Order 53B - Investigation of company’s affairs under Part 13 of the Companies Act 2014 : S.I. No. 471 of 2015
Interpretation
1. (1) In this Order, unless the context or subject matter otherwise requires:
the “Act” means the Companies Act 2014;
“company” means a company that, in respect of the latest financial year of the company that has ended prior to the date of the presentation of the originating Notice of Motion, fell to be treated as a small or medium company by virtue of section 350 of the Act, to which any application under this Order relates and, where the context so admits or requires, includes any related company of that company;
the “Director” has the same meaning as in section 2(1) of the Act;
the “Minister” means the Minister for Jobs, Enterprise and Innovation.
(2) Words and expressions contained in this Order shall have the same meaning as in the Act.
Title and venue
2. (1) Every application brought in the Court in relation to a company under Part 13 of the Act shall be entitled in the matter of the company and in the matter of Part 13 of the Companies Act 2014 and where the company is under investigation there shall be added after the name of the company the words “under investigation”.
(2) All applications brought by a creditor or member under this Order shall, in accordance with section 747(9) of the Act, be made to the judge of the Circuit Court:
(a) for the circuit in which the registered office of the company is situated at the time of the making of the application, or
(b) if there is no registered office of the company at that time, for the circuit in which the creditor or member resides, or
(c) if there is no registered office of the company at that time and the creditor or member resides outside the State, for the Dublin Circuit.
(3) All applications and proceedings brought by the company or a director of the company under this Order shall, in accordance with section 747(10) of the Act, be made to the judge of the Circuit Court:
(a) for the circuit in which the registered office of the company is situated at the time of the making of the application, or
(b) if there is no registered office of the company at that time, for the Dublin Circuit.
(4) All applications and proceedings brought by the Director under this Order shall, in accordance with section 748(8) of the Act, be made to the judge of the Circuit Court:
(a) for the circuit in which the registered office of the company is situated at the time of the making of the application, or
(b) if there is no registered office of the company at that time, for the Dublin Circuit.
Application under section 747
3. (1) An application to appoint an inspector or inspectors under section 747(1) of the Act shall be made by originating Notice of Motion. Such an application when not made by the company or a director of the company shall be served on the company and its directors, and when made by a director, shall be served on the company and the other directors, and when made by the company shall be served on its directors.
(2) An application under sub-rule (1) shall be grounded upon an affidavit sworn by or on behalf of the moving party, which shall:
(a) contain a statement that the company is a small company meeting the qualifying conditions referred to in section 350(5) or, as the case may be, a medium company meeting the qualifying conditions referred to in section 350(6) of the Act and verify the satisfaction of the qualifying conditions concerned;
(b) exhibit the letter required by section 747(5) of the Act giving not less than 14 days’ notice to the Director of the intention to make the application and proof of service of that letter on the Director;
(c) set out the grounds of the application and verify any facts relied on.
Application under section 748
4. (1) An application to appoint an inspector or inspectors under section 748 of the Act shall be made by originating Notice of Motion. Such an application shall be served on the company and its directors.
(2) An application under sub-rule (1) shall be grounded upon an affidavit sworn by or on behalf of the Director, which shall:
(a) contain a statement that the company is a small company meeting the qualifying conditions referred to in section 350(5) or, as the case may be, a medium company meeting the qualifying conditions referred to in section 350(6) of the Act and verify the satisfaction of the qualifying conditions concerned;
(b) set out the circumstances mentioned in section 748(1) of the Act relevant to the application and verify any facts relied on.
Application to investigate a related body corporate
5. (1) An application for the approval of the Court to investigate a related body corporate, being a small or medium company within the meaning of section 350 of the Act, under section 750 of the Act shall be by notice of motion by the inspector grounded on an affidavit, which shall:
(a) contain a statement that the related body corporate is a small company meeting the qualifying conditions referred to in section 350(5) or, as the case may be, a medium company meeting the qualifying conditions referred to in section 350(6) of the Act and verify the satisfaction of the qualifying conditions concerned;
(b) set out the reasons why the inspector considers that it is necessary for the purposes of the investigation to investigate the affairs of the related body corporate and verify any facts relied on.
(2) A copy of the notice of motion, grounding affidavit and any exhibits shall be served on the company and on its directors and, if different, on the applicant at whose instance the inspector was appointed.
Order on considering investigator’s report
6. (1) After considering a report made under section 758 of the Act, the Court may make such order as it thinks fit.
(2) If on consideration of a report made to the Court under section 758 of the Act the Court considers that it may be appropriate that an order should be made for the winding up of a body corporate to which the report relates, the Court may refer the proceedings to the High Court, in accordance with section 747(8) or, as the case may be, section 748(7) of the Act, by directing the inspector (unless the Court otherwise directs) to apply to the High Court on notice to the original applicant for the appointment of the inspector and the company to put the report before the High Court for the purpose of considering the making of such an order.
Applications by motion ex parte
7. (1) The following applications shall be made by motion ex parte of the inspector grounded upon an affidavit:—
(a) an application for directions in an investigation under section 749 of the Act;
(b) an application for leave to deliver an interim report to the Court under section 758(1) of the Act;
(c) an application for leave to deliver a final report to the Court under section 758(1) of the Act;
(d) an application for leave to inform the Court of matters under section 758(2) of the Act;
(e) an application as to whether a part of a report should, under section 759(5) of the Act, be omitted from a report to be forwarded, provided, printed or published.
(2) The Court may direct that notice of an application mentioned in sub-rule (1) be given to any person.
Application under section 757
8. (1) An application under section 757 of the Act shall be made by notice of motion of the inspector grounded upon an affidavit. Copies of the notice of motion, affidavit and any exhibit shall be served on every person alleged to be in default, and each such person shall be at liberty to deliver and file a replying affidavit.
Directions and conduct of applications
9. (1) On the hearing of any application made to the Court pursuant to rule 3, rule 4, rule 5, rule 7 or rule 8, the Court may make such order or give such directions as it thinks fit including directions as to whether, and if so, upon which other party notice of the application should be served, the mode of service and the time allowed for such service and may adjourn the hearing or further hearing of such application to date to be specified.
(2) Every application under Part 13 of the Act shall be grounded upon the affidavit of the party making such application and shall be heard and determined on affidavit unless the Court otherwise orders.
(3) Notwithstanding sub-rule (2), the Court may, in any case in which the Court considers that it is either necessary or desirable in the interests of justice so to do, direct a hearing in the matter on oral evidence and may make such order and give such directions in relation to the exchange of pleadings and the settling of issues between the parties as shall appear proper in the circumstances.
[1] Order 53B inserted by SI 471 of 2015, effective 9 November 2015.