Circuit Court Forms

FORM 53A

Record No.

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

CIRCUIT                                                                                                                            COUNTY OF

IN THE MATTER OF SECTION 509 OF THE COMPANIES ACT 2014 AND IN THE MATTER OF [INSERT NAME OF COMPANY]

 

*On the application of [INSERT NAME OF COMPANY]………….., Applicant

 

*Between/ A.B. Applicant

and

[INSERT NAME OF COMPANY]

Respondent

 

ORIGINATING NOTICE OF MOTION

 

STATEMENT OF FACTS

 

1 The applicant, ..... of ......, is (state in accordance with section 510(1) of the Companies Act 2014 whether the applicant(s) is/are, as regards the company in respect of which the application is made, (a) the company; (b) a director(s); (c) a creditor, or contingent or prospective creditor (including an employee); (d) a member(s) holding at the date of the presentation of the application not less than one-tenth of such of the paid-up capital as carries at that date the right of voting at general meetings of the company; or (e) in a case in which section 510(2), (3) or (4) of the Companies Act 2014 applies, the Central Bank of Ireland).

2 The Company was incorporated in the State under the Companies Act 2014 (or as the case may be) with registered number.... on the .... day of .... 19/20.....

3 The registered office of the Company is at ..... in the County of ..... The principal place of business of the Company is at ..... *(where the principal place of business is situated in the State) in the County of ......

4 The nominal share capital of the Company is € ....., divided into ...... shares of € ..... each. The amount of the capital paid up or credited as paid up is € ......

*5. The objects for which the Company was established are: to ..... and other objects set forth in the constitution thereof.

6. The directors of the Company are .... and ........

[Note 1] *7. Council Regulation (EC) No 1346/2000 applies to the proceedings. The centre of main interests (determined in accordance with Council Regulation (EC) No 1346/2000) of the Company is situated in the State because [state facts and grounds relied on].

[Note 1] *7. Council Regulation (EC) No 1346/2000 applies to the proceedings. The centre of main interests of the Company is situated within the territory of a Member State of the European Union (other than the State) in which Council Regulation (EC) No 1346/2000 applies, namely at ...... in ......... because [state facts and grounds relied on] and the Company has an establishment within the State at ....... because [state facts and grounds relied on].

[Note 1] [Note 2] *7. Council Regulation (EC) No 1346/2000 does not apply to the proceedings, because [specify reasons for non-application].

[Note 3] *8. To the applicant’s knowledge, no insolvency proceedings have been opened in respect of the Company in a Member State of the European Union to which Council Regulation (EC) No 1346/2000 applies.

[Note 3] *8. Insolvency proceedings, which are

*main proceedings, (in accordance with Article 3(1) of Council Regulation (EC) No 1346/2000)

*secondary proceedings, (in accordance with Article 3(3) of Council Regulation (EC) No 1346/2000)

*territorial proceedings, (in accordance with Article 3(4) of Council Regulation (EC) No 1346/2000)

have been opened in respect of the Company in a Member State of the European Union (other than the State) to which Council Regulation (EC) No 1346/2000 applies, namely in ......, by decision of ...... made on .... 20....

*The applicant *....... of ..... was appointed by the said decision to be liquidator (within the meaning of Article 2(b) of Council Regulation (EC) No 1346/2000) in those insolvency proceedings concerning the company.

[Note 4] *9. In the applicant’s belief, the centre of the company’s main interests is situated within the territory of a Member State other than the State, and main proceedings have not been opened in another Member State. The condition referred to in *[Article 3(4)(a)] *[Article 3(4)(b)] of the Insolvency Regulation is met because [state facts and grounds relied on].

[Note 5] *10. All necessary inquiries having been made by the applicant, the company has no obligations in relation to a bank asset (within the meaning of the National Asset Management Agency Act 2009) that has been transferred to the National Asset Management Agency or a NAMA group entity (within the meaning of the last-mentioned Act).

[Note 5] *10. The company has *an obligation in relation to a bank asset (within the meaning of the National Asset Management Agency Act 2009) that has been transferred to the National Asset Management Agency or a NAMA group entity (within the meaning of the last-mentioned Act) and this notice of motion will be served on the National Asset Management Agency.

11. The Company is *unable/*unlikely to be able to pay its debts. The appointment of an Examiner to the Company is desirable because [set out reasons].

12. In respect of

*the latest financial year of the Company that has ended prior to the date of presentation of this originating Notice of Motion

*the financial year of the Company that preceded its latest financial year ending prior to the date of presentation of this originating Notice of Motion

the Company fell to be treated as a small company by virtue of section 350 of the Companies Act 2014 because [set out the relevant conditions, as specified in section 350 which are met in the case of the company the subject of the originating Notice of Motion].

13. The *Company/*applicant has approached [Name of proposed Examiner]of [Firm] and he has agreed to act as Examiner *(and Interim Examiner) of the Company, if so appointed by this Honourable Court.

14. The *Company/*applicant believes that there is a reasonable prospect for the survival of the Company and the whole or any part of its undertaking as a going concern.

15. No resolution subsists for the winding-up of the Company.

16. No order has been made for the winding-up of the Company.

[Note 6] *17. On the ...... day of ...... 20 .... the Company passed a resolution directing the board of the Company to take the necessary steps on behalf of the Company to seek the protection of the Court and the appointment of an Examiner. The said resolution was passed in the following circumstances [Set out circumstances, including details of the Company’s financial difficulties. There should also be included (or exhibited and verified in the verifying affidavit) a statement of the assets and liabilities of the Company (in so far as they are known) as they stand on a date not earlier than seven days before the presentation of the originating Notice of Motion. and as relied on in the report of the independent expert. Set out also particulars of the independent expert’s report, which should, unless an application is being made for an order under section 513 of the Companies Act 2014, be exhibited to the grounding affidavit].

[Note 6] *17. The application to seek the appointment of an Examiner to the Company arises in the following circumstances [Set out circumstances, including details of the Company’s financial difficulties and its creditors].

RELIEFS SOUGHT

TAKE NOTICE that on the .... day of ...... 20 .... at ....... in the forenoon or the first available opportunity thereafter, application will be made on behalf of the applicant in the above entitled proceedings to this Honourable Court sitting at ...... for the following reliefs:

1. An order pursuant to section 509 of the Companies Act 2014 appointing [Name] as Examiner of [INSERT NAME OF COMPANY] (hereinafter the “Company”)

*[Note 7] in main proceedings, (in accordance with Article 3(1) of Council Regulation (EC) No 1346/2000)

*[Note 8] in secondary proceedings, (in accordance with Article 3(3) of Council Regulation (EC) No 1346/2000)

*[Note 9] in territorial proceedings, (in accordance with Article 3(4) of Council Regulation (EC) No 1346/2000).

2. Such directions as may appear appropriate to this Honourable Court in the circumstances.

3. Such further relief as may appear appropriate to this Honourable Court in the circumstances.

4. An order providing for the costs of and incidental to the proceedings on this application.

*NOTE:—It is intended to serve this originating Notice of Motion on (here insert the name of the Company. This note is unnecessary if the Company is itself the applicant)

 

Dated this .... day of ...... 20 ....

 

Signed:

Applicant /Solicitors for the Applicant

To: The County Registrar

*and to: Respondent /Solicitors for the Respondent

[Notes] (need not be included in document presented)

[Note 1] One alternative version only of paragraph 7 must be included. Under Council Regulation (EC) No 1346/2000—

the “centre of main interests” should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties;

“establishment” means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods.

[Note 2] Where this version of paragraph 7 is appropriate to the case, paragraph 8 should be deleted.

[Note 3] Where paragraph 8 is required, only one alternative version must be included.

[Note 4] To be used only if Council Regulation (EC) No 1346/2000 applies, insolvency proceedings in respect of the company have not been opened in another Member State, and one of the conditions in Article 3(4) of that Regulation is satisfied.

[Note 5] See section 509(5) of the Companies Act 2014. One alternative version only of paragraph 10 must be included. Where the originating notice of motion is served on NAMA, proof of service must be produced on the hearing of the motion.

[Note 6] One alternative version only of paragraph 17 must be included.

[Note 7] To be used only if Council Regulation (EC) No 1346/2000 applies and the company’s centre of main interests is situated in the State.

[Note 8] To be used only if Council Regulation (EC) No 1346/2000 applies, insolvency proceedings in respect of the company have been opened in another Member State, and the company has an establishment in the State.

[Note 9] To be used only if Council Regulation (EC) No 1346/2000 applies, insolvency proceedings in respect of the company have not been opened in another Member State, and one of the conditions in Article 3(4) of that Regulation is satisfied. 

*Delete where inapplicable.