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GAZETTE
JULY-AUGUST
1979
owner of a registered charge.
On the 23 October 1965, the
Company issued a debenture to the
Bank giving, interalia, a specific
charge on the lands comprised in the
folio. Clause 10 of the debenture
gave the Bank power to appoint a
receiver with power to take
possession of, collect and get in the
property charged and such receiver
was given power "to sell or concur in
the selling, let or concur in the letting,
of any of the property charged by
this debenture and carry any such
sale into effect by deed in the name
and on behalf of the Company or
otherwise to convey the same to the
purchaser".
The debenture further provided
that the receiver be the agent of the
Company and also provided that:
"the Company hereby irrevocably
appoints any receiver or receivers
appointed as aforesaid, the
attorney or attornies of the
Company for the Company and in
its name and on its behalf and as its
act and deed to execute, seal and
deliver and otherwise perfect any
deed, assurance, agreement,
instrument or act which may be
required or may be deemed proper
for any of the
purposes
aforesaid".
On the 12 May 1975, the Bank
appointed Mr. M.G. as receiver
under the debenture. The instrument
of appointment specifying his powers
set out the powers conferred in the
debenture including that referred to
above.
On the 25 July 1976, the receiver
contracted to sell to the Industrial
Development Authority part of the
lands comprised in the folio and
purported to carry this sale into effect
by transfer dated the 8 October 1976.
Such transfer was witnessed as follow:
"In witness whereof the common
seal of the Company has been
hereunto affixed by direction of
the Receiver as such Receiver,
pursuant to the powers vested in
him as aforesaid, and the Receiver
has signed his name and affixed
his seal and the common seal of
the Purchaser has been hereunto
affixed the day and year first
herein written".
Article 115 of Table A of the
Companies Act 1963 applied to the
use of the seal by the Company.
Article 129 of the Articles of
Association of the Company
provided for an official company seal
for use abroad under the provisions
of the Companies Act 1963. Article
100 provided as follows:
"The directors may from time to
time and at any time by power of
attorney under seal appoint any
company, form or person or any
fluctuating body of persons
whether nominated directly or
indirectly by the directors to be the
attorney or attornies . . . . "
The Registrar of Titles was not
satisfied that the Receiver had power
to execute the transfer and the matter
was referred to the High Court which
held (per Butler J.) that:
(i) The use and control of the seal of
a company by the Receiver
which was not authorised by the
Articles of Association was not
in accordance with any valid
power and thus the fixing of the
seal by the Receiver was not a
valid or effective sealing by the
Company to witness the transfer
as its deed.
(ii) A company had no power to act
by attorney to execute deeds
within the State.
The reasons stated for so finding was
that the legislature found it necessary
in Section 40 of the Companies Act
1963 to make special provision to
enable a company appoint attornies
and hence that, but for that Section, a
company had no such power. Section
40 only permitted the appointment of
an attorney to execute deeds on behalf
of a company in any place outside the
State. Thus a company had no power
to appoint an attorney to execute deeds
within the State.
(iii) The transaction could not be
validated by Section 46 of the
Conveyancing Act 1881.
(iv) The present transfer had
not been validly executed and
was thus ineffective to transfer
the legal estate in the property.
From this decision of the High
Court an appeal was brought to the
Supreme Court.
Held
(per Kenny J.)
that:
(a) The High Court was correct in (i)
above.
(b) The High Court was incorrect in
(ii) above. A company had power
to act by attorney to execute
deeds within the State. The
inference drawn by the High
Court from Section 40 of the
Companies Act 1963 was
incorrect. Prima facie any
company could appoint an
attorney to act on its behalf; the
attorney was an agent and a
company can only act by agents
and had implied power to
appoint agents. Whether, in any
particular case the directors of a
company had power to execute a
power of attorney depended on
the Articles of Association, and if
they had no such power, the
sanction of a general meeting
must be obtained. The Articles of
Association of the Company in
force at the time of the execution
of the debenture did not require
that the power of attorney could
be given only by the Company in
general meeting.
(c) As the Receiver had executed the
deed of transfer in his own name,
Section 46 of the Conveyancing
Act 1881 made the deed of
transfer fully effective.
(d) That the deed was therefore
effective to transfer to the I.D.A.
the property therein described
and the Registrar of Titles was
directed to register its effect on
the folio.
Postscript:
In the course of this
judgment in the Supreme Court
Kenny J. advised how a deed should
be executed by a Receiver in exercise
of the type of power of sale given him
by the debenture in the case. Kenny
J. said the receiver should proceed as
follows:—
(1) By writing the name of the
Company and underneath this
writing words that indicated that the
name of the Company had been
written by the Receiver as Attorney
of the Company under the power of
attorney given him by the debenture.
(2) In addition, the receiver should
execute the deed in his own
name.
Kenny J. pointed out that (1)
above brought the execution within
the words of the debenture itself and
(2) gave the Receiver the advantage
of Section 48 of the Conveyancing
Act, 1881.
Folio 43689, Co. Cork, Registered
Owner: Cork Shoe Company
Limited — Application of Industrial
Development Authority: Dealing
Number S I 603 / 78 — Supreme
Court (per Kenny J., with O'Higgins
C.J. and Parke J.) — 9 November
1978 — unreported.
REDUNDANCY PAYMENTS
ACTS 1967/71
A former employee of an employer
who sold his business to a Company
has no claim for redundancy
payments against such former