The Gazette 1981

GAZETTE

SEPTEMBER 1981

Companies Registration Office The Society has been discussing with the Registrar of Companies problems which have arisen in practice and which could, with the co-operation of the profession, be substantially reduced or eliminated, to the general good of all concerned. The Registrar has been good enough to submit to the Society some observations on present difficulties, attention to which would certainly avoid a great many unnecessary delays and frustrations. The more important of the Registrar's comments are as follows:— 1. Memoranda and Articles of Proposed New Companies: These documents, on incorporation of the Company, become permanent records and, by law, are required to be held by the Registrar for examination by the public. They are subject to extensive handling and photocopying. In the circumstances, the paper used should be of good quality and the characters should be clear and durable in accordance with the definition of "printed" in Section 2(1) of the Companies Act, 1963. In practice, Memoranda and Articles very often fall short of these requirements. (a) Paper too flimsy — typing post (normally used for carbon copies of letters) and even printers' proofs have been submitted. (b) Photostat Memoranda and Articles are received in which words, and, indeed, occasionally entire paragraphs are smudged or illegible, for one reason or another. (c) It would appear that the characters produced by, at least some, electric typewriters are not durable — certainly they are easily erased. (d) Although there is no objection to a reasonable amount of amendment or smplification of a paragraph in manuscript, some Memoranda and Articles are received with entire paragraphs written in manuscript: indeed, in a recent example, an entire paragraph was written on the top margin of the paper, with a footnote to indicate its sequence in relation to the other paragraphs of the document. (e) The Companies Act, 1977, provides that that Act and the 1963 Act may be cited together as the Companies Acts, 1963 to 1977. Although the 1977 Act came into operation on 1st April 1978, Memoranda and Articles are still being received with the legislation stated simply as Companies Act, 1963. In some cases the omission persists, notwithstanding that the attention of the practitioners concerned has been drawn to it on several occasions. Amplification in manuscript is acceptable in this regard. (0 It is not unusual for the Office to receive the Articles prescribed by the Companies Act, 1963, for a limited company, whereas an unlimited company is what is proposed and vice versa. Recently such a case took four weeks of correspondence and phone calls to clear.

(g) Sometimes the Articles received are taken from the U.K. Companies Act, 1948, or, indeed the Companies Act, 1908. (h) The recital at the end of the Memorandum frequently is faulty in the subscribers' area. Either the names of the subscribers and/or witness are omitted or the number of shares taken by each subscriber is not stated, or is stated in figures instead of words. A delicate situation in this regard arises where the number of shares taken by each subscriber is written in the same hand. This generally happens where the Companies Registration Office has previously returned the document because the information originally was omitted and some difficulty is experienced in convincing practitioners that amendment is essential. The Declaration is to the effect that all requirements of the Companies Act, 1963, in matters precedent and incidental to the incorporation of a company have been met: it may be made either by a Solicitor engaged in the formation of the company or by a person named in the articles as a director or secretary. Where a person other than the Solicitor makes the Declaration — say where the Solicitor has handed over the case before the Declaration is executed — the Companies Registration Office is often left with the task of helping with the procedure — amendment of Regulation 75 of Part I of Table A of the When issuing the Certificate of Incorporation of a company, the Registrar includes, with the Certificate, information leaflets about the legal responsibilities of a company after incorporation, with particular regard to the various returns to be made to the Registrar. It is most important, from the Registrar's viewpoint, that the leaflets are passed on to the company, as companies often plead, as an excuse for failing to make statutory returns, that they were never notified that any returns were required. Another point in this connection is that Solicitors who have acted in the incorporation of a company are subsequently unable to assist the Companies Registration Office in efforts to obtain notification of the location of the registered office of the company or the names of its directors. Practitioners could greatly assist by encouraging their clients to furnish the information without delay. In many cases, indeed, the solicitor's office is notified to the Companies Registration Office as the registered office of the company. Later, however, efforts of the Companies Registration Office to obtain the names of the directors are to no avail. In cases where threats of prosecution are forwarded to such registered addresses, it is found that practitioners allowed the registration simply to facilitate their clients and are unable to assist in having the returns furnished. 4. Delays in Incorporation (a) The Companies Registration Office is still receiving enquiries from members of the public as to delay in incorporating companies. Often it is claimed that the Office had the case for Five or six weeks. In some of these cases it is found that, in fact, no papers 2. Form 41 — Statutory Declaration of Compliance Companies Act, 1963, for instance. 3. Post-Incorporation Requirements

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