The Gazette 1990

GAZETTE

PRIL

1990

continued in existence as if its

name hdd not been struck off.

Large amounts of tax may have

been owing at the date of

dissolution of the company. In such

cases the Revenue Commissioners

may be the most interested parties

in having the company restored to

the register. However, it has been

held that they are only creditors of

the company if, and to the extent

that they have raised assessments

on the company prior to the date

upon which its name was struck

off, then the Revenue Commiss-

ioners will not constitute creditors

of the company for the purposes of

an application for restoration under

Section 12(6).

Any application to the court

under Section 12(6) must be on

notice to the registrar. In practice

the court will require a letter from

the Registrar stating that all

outstanding returns have been

made and that they are in order.

This is presumably to comply with

the requirement of Section 12(6)

that the court may only order that

the name of the company be

restored to the register 'if satisfied

that the company was at the time

of the striking off carrying on

business

or otherwise that it is just

that the company be restored to the

register'

(emphasis added).

What is to happen then in the

case of a company which is struck

off at a time when it has either

temporarily ceased trading or,

indeed, has yet to commence

trading? It should be noted that

under Section 11 of the 1982 Act

the Registrar may (but is not

obliged to) strike off the register the

name of a company which is not

trading. Presumably however, if the

company can prove that it wishes

to resume or commence trading,

the court may then, in its

discretion, make an order restoring

it to the register.

Although not expressly required

by Section 12(6), the Court in

practice stipulates that no order for

restoration will be made unless the

Minister for Finance has been put

on notice and his consent has been

obtained to the making of such an

order. Presumably, the reason why

the Minister's consent must be

obtained is that the company's

property will have vested in him

from the date of dissolution. If

however, the name of the company

is restored to the register the

company is deemed to have

continued in existence as if its

name had not been struck off and

accordingly the Minister will be

automatically divested of the

company's property which then

reverts to the company itself.

Notably under Section 28(3) of the

State Property Act 1954, the

vesting of property in the State

upon dissolution is expressly made

subject to any order restoring the

company to the register.

The Minister's consent is usually

obtained as a matter of course and

will be received by way of letter

written on his behalf by the Chief

State Solicitor. This letter will

normally also contain a consent to

the application on behalf of the

Minister for Industry and Com-

merce and on behalf of the

Registrar of Companies.

Effect of registration

As was mentioned above, in the

event of the company's name being

restored to the register, the

company is deemed to have

continued as if its name had not

been struck off. Its property is

returned to it and it may once again

sue and be sued. From the point of

view of pre-dissolution creditors,

their debts are revived and interest

will run as if the company had

never been struck off. This will be

important, not only in respect of

trade debts, but more importantly

in respect of revenue debts, where

arrears may be large and interest

rates are high. Where such arrears

of interest prove to be excessive,

the shareholders may not regard it

as commercially wise to revive the

company. If they do so they may

find that the company has become

hopelessly insolvent with liquida-

tion as the only real prospect. In

such circumstances it may be

commercially more prudent for a

new company to be formed

instead.

Special directions in restoration

order

If the court makes an order

restoring the company's name to

the register, it may under Section

12(6) give such directions and

make such provisions as seem just

for placing the company and all

other persons in the same position

as nearly as may be as if the name

of the company had not been

struck off. For example, in

ASKUS

TRANSLATIO N

SERVICES

LTD.

TRANSLATORS

AND

INTERPRETERS

19 DUKE STREET, DUBLIN 2

Tel.: 779954/770795

Fax: 774183

Donald Kennyon Ltd.,

Roxburgh

J., in the order restoring the

company to the register, provided

that in the case of creditors who

were not statute-barred at the date

of dissolution, the period between

that date and the date upon which

the company was restored to the

register should not be counted for

the purposes of the Statute of

Limitations.

Re Boxco Ltd

particulars of

a charge were delivered within 21

days of its creation, to the registrar

under the English equivalent of

Section 99 of the Principal Act. It

was only at this stage that it was

discovered that the company had

been struck off the register. In

restoring the company to the

register the court directed that the

delivery of particulars of the charge

should be regarded as having been

properly made. This avoided the

necessity of an application subse-

quently for leave to extend the time

within which to register the

charge.

Conclusion

As we have seen, the striking of

the company's name off the

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