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register can have potentially
serious consequences both for its
shareholders and also for those
dealing with it. Upon dissolution,
the State takes over ownership of
all property which had previously
been vested in the company.
Strictly, therefore, there is no longer
a company to which creditors or
employees can turn for payment.
Despite this fact, the former
controllers may purport to carry on
business in the name of the
company. One must presume that
during this period they are incurring
personal liability in respect of any
" . . . the striking of the
company's name off the
register can have potentially
serious consequences both for
its shareholders and also for
those dealing with it".
transactions effected by them.
Furthermore, they would also
apopear to be wrongfully interfer-
ing with and even dissipating, the
property of the State, thereby
running the technical risk of actions
in trespass, detinue and conversion.
In view of the difficulties incurred
in such circumstances, it would
appear that the only possible
solution is to apply to have the
company restored to the register,
whereupon it is deemed to have
continued in existence as if its
name had never been struck off.
NOTES
1. Only S.125 applies to companies having
a share capital (which are by far the
most c ommon type of company
currently on the register). The matters
in respect of which a return must be
made under S.125 are set out in Part I
of the Fifth Schedule of the Principal Act
as amended by S.22 of the 1982 Act.
The return must be in the form set out
in Part II of that Schedule as amended
by S.22 of the 1982 Act. See generally
Keane
Company Law in the Republic of
Ireland
(London 1985) Chapter 29.
2. Sections 125 and 126 as amended by
S.15 and the First Schedule of the 1982
Act.
3. See S.12(1) - (3) of the 1982 Act.
4. Under Section 12(7) any letter or notice
sent to the company may be addressed
to its registered office, or, if no office
has been registered, to the care of some
officer of the company, or if there is no
officer of the company whose name
and address are known to the Registrar
of Companies, may be sent to each of
the persons who subscribed the
memorandum, addressed to him at the
address
me n t i o n ed
in
the
memorandum.
5
. Salomon -v- Sáomon & Co.
[1897] A.C.
22.
f
6
. Attorney General -v- Jameson
[1904] 2
I.R.
6 4 4;
Short
-v-
Treasury
Commissioners
[1948] 1 K.B. 116;
Macaura -v- Northern Assurance Co.
[1925] A.C. 619.
7 .
Re Higginson & Dean, ex parte Attorney
General
[1899] 1 Q.B. 3 2 5;
Re
Henderson's (Nigel) Co., Ltd.
[1911 ] W.N.
159;
Re Home & Colonial Insurance Co
(1928) 44 T.L.R. 718.
8. See S.73I1) of the Succession Act
1965.
9. S.28I2) of the State Property Act 1954.
Arguably on the terms of s.28(5)
personal property is taken unem-
cumbered.
10. High Court, 23 November 1984.
11. S.285 of the Principal Act as amended
by S.10 of the 1982 Act.
12.
Boast -v- Firth
(1868) L.R. 4 C.P. 1;
Farrow -v- Wilson
(1869) L.R. 4 C.P.
7 4 4; See Hepple & O'Higgins
Employment
Law
(4th Ed) (London,
1981) p.231. It would not seem that the
employees would be protected by the
European Communities (Safeguarding
of Employees' Rights on Transfer of
Undertakings) Regulations 1980 (S.I.
No. 306 of 1980). These Regulations
implement Council Directive No.
77/187/EEC of 14 February 1977. The
purpose behind these instruments is to
ensure,
inter alia
that when a business
is transferred as a going concern, the
transferee will take over the transferor's
obligations under c o n t r a c ts of
employment with the workforce. It is
submitted that there is a number of
reasons why the Regulations do not
apply. First, the State acquires the
company's property not by way of
transfer but rather by way of
transmission. Art.1 of the Directive and
Reg.3 only apply to transfers. Secondly,
if the contracts of employment
automatically
terminate
upon
dissolution of the company, then the
State presumably
acquires
no
obligations thereunder. Finally, the
Regulations and Directive apply to the
transfer of a business as a going
concern:
Spijkers
-v-
Gebroeders
Benedik Abattoir
CV[1986]E.C.R. 470.
Upon an objective reading of S.28 of
the State Property Act 1954, it could
scarcely be argued that when the State
acquired the company's pre-dissolution
assets, that it was subsequently to run
the company's business itselfl
1 3.
Re Cambridge Coffee Room Associa-
tion Ltd.
[1951] W.N. 621.
14. Eg. under Ss.125 and 126 of the
Principal Act.
15. For example, the controllers of the
company may be guilty of an offence
under Section 19 of the Consumer
Information Act 1978 where, on the
evidence the company is itself deemed
to have committed an offence under
the Act.
16 .Re City Equitable Fire Insurance Co. Ltd.
11925] Ch 407.
1 7.
Walker -v- Wimborne
(1976) 137 CLR
11;
Lonhro -v- Shell Petroleum
Ltd.
[1980] 1 W.L.R. 627;
Winkworth
-v-
Edward Baron Development Ltd.
[1987]
B.C.L.C. 193;
Nicholson -v- Permakraft
(N.Z.) Ltd.
[1985] 1 N.Z.L.R. 102;
Kinsella -v- Russell Kinsella (Pty) Ltd.
[1960]A.C. 1526;
West Mercia Safety-
wear Ltd.
-v-flu<y<y[1988]B.C.L.C 250.,
1 8.
Nicholson -v- Permakraft (N.Z.) Ltd, loc.
cit. at n. 13.
19.
Re Nelson Car Hire Ltd.
(1973) 107
I.L.T.R. 97;
Re Supatone (Eire) Ltd.
(1973) 107 I.L.T.R. 105.
2 0 . [1956] 3 All E.R. 596.
21. [1970] Ch 442.
2 2. Under the equivalent of S.106 of the
Principal Act.
For Sale:-
Dictaphone Word
Processing System
comprising Disc Drive CPU,
Model 3012, 2 x terminals,
one x V.D.U. and Manual /
Auto Printer.
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EMPLOYMENT OPPORTUNITIES
The Law Society wishes to advise that through its
Employment Register, it facilitates Solicitors
currently seeking employment or contemplating a
change of present employment.
For further details contact:
EDUCA T I ON OFF I CER,
T H E LAW SOC I E T Y,
BL ACKHA LL PLACE,
DUBL IN 7.
130