The Gazette 1992

JUNE 1992

GAZETTE

Registration of Charges: Foreign Companies and the Slavenburg File

receivers, appointed. . . of property in the State of such a company, and for the purposes of those provisions, the principal place of business of such a company in the State shall be deemed to be its registered office."

by Thomas B. Courtney B.A., LL.B. of Hanby Wallace, Solicitors

1. Introduction 1 S.99 (1) Companies Act, 1963

provides that particulars of certain charges which are enumerated in S.99 (2) must, within a period of 21 days from the creation of the charge, be delivered to the Registrar of Companies. Failure to register what is a registrable charge means that that charge, while remaining enforceable against the company which created it, is void against the liquidator and any creditor of the company. Non-registration of a registrable charge, enumerated in S.99 (2) does not vitiate that charge, but makes it void against a liquidator or creditor of the company. That it remains enforceable is evidenced by the fact that where a registrable charge is not registered, the money secured thereby becomes immediately due and payable. Essentially, non-registration means that the charge holder loses priority to other creditors, both secured and unsecured. Where the company creating the charge is Irish, the pitfalls are readily appreciated. company i.e. one which is registered under the laws of another country, and the property comprised in the charge is situate in Ireland, extreme care must be taken to ensure that the requirements of S.lll of Part IV of the Companies Act, 1963 are complied with. However, where the company creating the charge is a foreign

Companies Registered on the External Register

Foreign, or "external" companies which establish a place of business in the State are obliged to register with the Registrar of Companies by S.352 (1) Companies Act, 1963, which provides as follows: "Companies incorporated outside the State, which, after the operative date, establish a place of business within the State, shall, within one month of the establishment of the place.of business, deliver to .the registrar of companies for registration - (a) a certified copy of the charter, statutes or memorandum and articles of the company, or other instrument constituting or defining the constitution of the company, and, if the instrument is not written in the English or Irish language, a certified translation thereof; (b) a list of the directors and secretary of the company containing the particulars mentioned in subsection (2); 3 (c) the names and addresses of some one or more persons resident in the State authorised to accept on behalf of the company service of process and any notices required to be served on the company and also the address of the company's principal place of business in the State." The mechanics of registration are as follows. Three forms must be completed specifying the foregoing information. 4 These must be accompanied by the company's Memorandum and Articles of Association. All such documentation must be certified by, for example a Notary Public or the Registrar of Companies in that country etc. In addition, such documents must also

Thomas B. Courtney

Charges created by foreign companies over property in the State require to be registered under Part IV Companies Act, 1963 where such companies have an established place of business in the State. Furthermore, this remains the case even though such foreign companies have not registered on the Irish external register of companies, as they should if they have an established place of business in the State. Where charges are created by that company or property is acquired by that company which is subject to a charge, and they are not registered then they will be void against a liquidator or creditor of the company. In the case of judgement mortgages obtained against that company but not registered, then the holder of the judgement mortgage will be liable to a fine not exceeding £500. 2 S.lll Companies Act, 1963 provides "The provisions of [Part IV] shall extend to charges on property in the State which are created. . . and to charges on property in the State which is acquired. . . by a company incorporated outside the State which has an established place of business within the State, and to judgement mortgages created. . . and affecting property in the State of such a company and to

The Law Summarised Charges created by foreign companies, concerning foreign

property are of no concern to Irish law. Their validity will be determined by the lex situs.

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