Winding Up by Court

Part 11 – Winding Up

The circumstances in which a company may be wound up by the Court are set out here (Section 569) and are the same as they used to be in the old Section 213 of 1963, with the one novelty mentioned in the Introduction: the DCE now has the right to petition the Court to wind up a company on the basis that it is in the public interest to do so.

There are four circumstances in which a company is deemed unable to pay its debts. The thresholds are new, but the four circumstances are unchanged. They are, in essence:

1. If a demand in writing is served on the company by a creditor who is owed a minimum of €10,000 and after 21 days the company has not paid that sum.

2. If 2 or more creditors are owed, in total between them, a minimum of €20,000 and after 21 days the company has not paid that sum.

3. If any attempts to enforce judgments or orders of the Court are unsatisfied.

4. If it is proved to the satisfaction of the Court that the company is unable to pay its debts.

The following rules in relation to winding up have remained the same (there is one significant change, and it is marked in bold orange):

1. An application to wind up a company is done by way of petition.

2. The petition may be presented by the company/ any creditor(s) / any contributory(ies). It can be presented by any of them acting alone or all of them acting together.

3. If it is in the public interest to wind up a company the petition may be presented by the DCE.

4. If the petition is presented by the contingent or prospective creditor, the Court will not hear the petition until a prima facie case is established and the Court may order that security for costs be given.

5. The NAMA provisions are re-enacted and can be found here (Section 572(2)).

6. A vital new addition to the statute is that under Section 572(4), in all but three situations, the Court may order that the company be wound up as if it were a members’ voluntary winding up. (Section 572).

7. The three situations where this does not apply are:
• when the DCE is petitioning,
• when the Court decides to wind up the company after an examiner has been unable to secure agreement on a compromise or scheme of arrangement,
• or when the Court refuses to confirm proposals put forward by the examiner.

8. The Court may appoint a provisional liquidator at any time after the presentation of a winding up petition, before the first appointment of a liquidator. (Section 573)

9. In the period between the presentation of the petition and the making of the winding up order, the Court may put a stay on any proceedings against the company. (Section 574)

10. As before, the fact that a company is in voluntary liquidation does not mean the Court cannot wind it up (Section 577).