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GAZETTE
APRIL 1985
Practice Notes
Companies Office —
Registration of Charges
A recent English case of
Reg.
-v-
Registrar of Companies
ex parte Esal (Commodities) Ltd. (In Liquidation) — The
Times,
November 26th, 1984, has cast considerable doubt
on the practice of permitting applicants to present a
correctly completed Form 47 in lieu of an earlier defective
Form which had been rejected, while retaining the priority
obtained by the lodgement of the original Form 47.
The Court held that while in ordinary litigation the
certificate issued by the Registrar under Section 98(2) of
the UK Companies Act 1948 was conclusive evidence that
the requirements of registration of a charge under Section
95( 1) of that Act had been complied with, that was not the
case in judicial review proceedings. In this case the
Applicants had lodged the Form 47 and accompanying
documents for the registration of a charge dated the 9th
February 1984 on the 29th February 1984. These were
considered unsatisfactory by the Registry and another
Form 47 with the same accompanying documents was
lodged on the 29th March. The second Form 47 was dated
February 29th and the Registrar recorded February 29th
as the date of registration.
The Court held that the prescribed particulars
delivered on February 29th were defective and rightly
considered unsatisfactory by the Registrar but he then
accepted further particulars outside the 21 day period
prescribed.
The legislation and procedures governing the registra-
tion of charges created by companies in this jurisdiction
are very similar to those in the UK. It would seem that the
Judge's reasoning is impeccable and the Companies
Office would be justified in refusing to allow the practice
permitted by his English counterpart. The Companies
Registration Office have already adopted a practice which
accords with the decision in this case.
The decision leaves open two questions which
immediately occur:—
1. Would the position have been any different if
instead of a new Form 47 being lodged, the original
form, Form 47, with amendments had been
relodged? It is suggested that once the form is lodged
outside the 21 day period it would not have been any
different.
2. If the new or corrected Form 47 was in fact lodged
within the original 21 day period from the date of
the charge is the Registrar entitled to record the date
of first lodgement as the date of registration or must
the date of lodgement of the correct particulars be
the date of registration? It is suggested that only the
date of lodgement of correct particulars can be
judged to be the date of registration.
It should be noted that the judgment of Hamilton J. in
the Irish case of
Lombard & Ulster Banking (Ireland) Ltd.
-v-
Amurec Ltd.
(1976) ILTR 1 was not a case in which
judicial review was involved. The liquidator in that case
was not seeking to have the Registrar's decision quashed
(he was presumably too late to do so) but defending a
claim for an Order of possession on the grounds that the
registration of the Charge was void, the necessary
particulars not having been delivered to the Registrar
within the prescribed 21 days. In the
Esal
case the Court
specifically drew a distinction between those proceedings
which were by way of judicial review and what the Court
described as "ordinary litigation".
•
Land Act, 1965, s.45. Rights of
Establishment
In a letter published in the June 1984 issue of the
Gazette,
Mr. Brian O'Reilly suggested a form of
certificate for completion for the Land Registry in cases
where persons were availing of their rights of establish-
ment to acquire land in Ireland which was subject to
Section 45 of the 1965 Land Act.
The Registrar of Titles subsequently wrote to the
Editorial Board of the
Gazette
suggesting that the form of
certificate proposed by Mr. O'Reilly was not in fact
adequate.
The following certificate meets the Land Registry's
requirements and is in accordance with the legislation:—
I,
CERTIFY that:—
1. I am a
citizen and as such a citizen
of a member state of the European Economic
Community.
2. I am exercising in the State the right of self establish-
ment as a self employed person under Article 52 of
the EEC Treaty (within the meaning of the
European Communities Act 1972) by way of
economic activity the nature of which is
3. I am acquiring an interest in land to which Section
45 of the Land Act 1965 applies for the purpose of
and in connection with such exercise of that right.
•
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