The High Court has ruled it had no jurisdiction to restore Command Financial Services Limited to the companies register as an ancillary order to a declaration that the company’s dissolution was void. The ruling followed a re-entry hearing on an application by AIG Europe Limited, the company’s insurer.
The company had been struck off the register on 24 April 2011 for failing to file annual returns and was dissolved after notice was published on 29 April. In an earlier judgment in April 2013, the court declared the dissolution void under section 310(1) of the Companies Act 1963. It left open whether the company should also be restored to the register.
AIG said it needed the company restored so it could pursue recovery of legal costs in the company’s name. The costs arose from other High Court proceedings in which AIG had indemnified the company and paid for its legal representation. In those proceedings, an order made by consent required the plaintiffs to pay the company’s costs up to 23 January 2010, to be taxed if the amount could not be agreed. The costs were estimated at €64,381.10 in April 2013.
The Registrar submitted that the court probably had power to make a restoration order under section 310, but acknowledged uncertainty. The Registrar also said it was willing to apply for restoration under section 12B(7) of the Companies (Amendment) Act 1982, a route available to the Registrar where a third party without standing to apply is affected by a company’s strike-off. The court noted that the Registrar could apply to the Circuit Court or the High Court.
Justice Laffoy concluded that the later statutory scheme for companies struck off over filing defaults provided specific routes for restoration. AIG had acknowledged that it could not apply under section 12B(3) because it was not a creditor of the company. The court held that section 310 did not give it jurisdiction to lift the strike-off sanction through an ancillary restoration order. It said that any gap in the statutory scheme was for the Oireachtas to address.
The judge also declined to order the plaintiffs in the earlier proceedings to pay the costs directly to AIG: they were not before the court, and she was not satisfied that the court had jurisdiction to make that order. She indicated that she was inclined to make no order as to costs in the re-entry application, but left the question open to further submissions if necessary.