A company which is in examinership is under scrutiny by an examiner so that he/she can report back to the High Court with proposals for the company's survival.
The Companies (Amendment) Act 1990 introduced the examinership process to provide a mechanism for the rescue and return to health of ailing, but potentially viable companies. The Companies (Amendment)(No.2) Act 1999 modifies some of the provisions of the 1990 Amendment Act. Under legislation to date, the company had to have some prospect of survival - that hurdle has been raised to a reasonable prospect of survival. When considering whether to grant an application to place a company in examinership, the court will also have more information available to it, in the form of an independent accountants report. Creditors have been given the right to be heard during the court hearing when the appointment of an examiner to a company is being considered. However, a winding up may not be in progress, voluntary or compulsory.
The Court makes an order for the appointment of an examiner for the purpose of examining the state of the companys affairs and performing such duties in relation to the company as may be imposed by the Act.
A petition to the Court for the appointment of an examiner may be presented by the company or its directors, a creditor or contingent or prospective creditor (including an employee) of the company, or by the members holding not less than one tenth of the paid-up capital.
Where the Court appoints an examiner to a company, it may at the same time, or at any time thereafter, make an order appointing the examiner to a related company.
The duration of the protection of the Court is 70 days from the date of presentation of the petition.
A Form E24 (notice of petition for appointment of examiner) must be delivered by the petitioner to the CRO within three days after its presentation to the Court. Filing Fee €15. The actual petition is not filed with CRO.
The examiner shall arrange for particulars of his/her appointment including date of appointment to be published in Iris Oifigiúil and in at least two daily newspapers circulating in the district in which the registered office of the company is situated.
The examiner shall, within three days of his/her appointment, deliver a copy, of the order appointing him/her, to the CRO.
Link to Form Page: E24
It shall be the duty of the examiner to conduct an examination of the affairs of the company and report to the Court.
An office copy of orders made pursuant to sections 13A, 24 and 27 must be delivered to the CRO. A court order has a filing fee of €15. These orders are:
(a) an order under section 13A of the 1990 Act, following a hearing regarding irregularities in relation to the companys affairs - section 13(a)(10) - The court may, if it considers it appropriate to do so, direct that an office copy of an order under subsection (9) shall be delivered to the registrar of companies by the examiner or such other person as it may specify;
(b) an order under section 24 of the 1990 Act, re confirmation of proposals;
(c) an order under section 27 of the 1990 Act, re revocation of order confirming proposals.
Section 29 of the 1990 Act amends section 30 of the 1990 (Amendment) Act, by providing that an examiner or such other person as the court may direct shall within 14 days after the delivery to the CRO of every order made under section 13A, 24 or 27, cause to be published in Iris Oifigiúil notice of such delivery.
Orders under 17 of the Act which followed a hearing of matters arising from an examiners report, are no longer required to be filed in the CRO, as this section has been repealed.
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