restriction of directors
directors
de jure director formally appointed by general meeting or registration of company
de facto director - occupies position, but never formally appointed
Shadow director
not formally appointed, in effect managing the company
s222 -
can't escape responsibility under the act
non-executive directors
executive directors
day to day management
not involved in day to day - periodically involved - attend meetings when required
appointment
no formal qualifications
minor can't be director
resident in EEA state
maximum number of 25 companies
restriction
purpose not there to punish the director but to the public
Re lo Line Motors - primary purpose not to punish
La moselle protection of the public
not automatic
companies are bound to fail - even if directors are good
baxter and parsons no witch hunt
applicant
normally liquidator - must apply if company in liquidation
can be relieved by Director of corporate enforcement
before it was compulsory liquidator was reluctant at times -expensive, slow process - costs may fall upon the liquidator
whats involved
819 - 5 year suspension unless requirements are met
director co-operated with liquidator
just and equitable
director act honestly and responsibly
can be director if have allotted share capital of no less then 500,000 for public limited company and 100,000 for any other company
Failing to file tax returns or pay returns Tralee Beef & Lamb Kavanagh v Delaney
USIT world dishonesty implies something akin to improper dealing with money or other assets - fraudulent trading
Re Costello Doors Ltd maintenance of proper books and account would go long way to showing acting responsibility
Re Squash entire tenure considered - personally lost money in venture was considered
La Moselle set out factors
paid himself high salary when company struggling, casual attitude to bookkeeping, allowed company to trade whilst insolvent
extent director has complied with obligations imposed by Companies act - RE Costello Doors obliged keep up to date set of accounts and if director fails to do that he will be on the backfoot
extent that conduct could be regarded as incompetent to amount to irresponsibility - Kavanagh v Delaney
extent of directors responsibility for insolvency of the company USIT World
extent of directors responsibility for net deficiency in assets of company
lack of commercial probity
Re Noxtad manner directors used VAT and PAYE to assist cash flow problems - traded beyond reasonable period - not acting responsibly
Tralee Beef & Lamb Kavanagh & delaney appropriateness of imposing responsibility on non-executive director - liquidator did not want to make application - no choice - SC didn't hold non-executive director responsible
co-operating with liquidator
click to edit
CMC Fennell v Carolan & Cosgrave - director kept forklift for months after liquidation
Re Mitek real difference between duties of executive and non-executive directors
voluntary restriction
court relief
effects of declaration
5 years unless adequately capitalised
852 - volunteer, less reputations damage and expense
cost can be high- person can be order to pay whole or part
may be given whole or in part as court sees fit