Company restoration in the High Court – some practical questions

Introduction

The following are answers to some common questions I get from company directors who wish to make application to the Hugh Court for the restoration of a company which has been struck off the register. Our more detailed article about company restorations is available here.

My company was insolvent when it was struck off the register. Will it need to repay its debts before a restoration order is made?

No. the sole purpose of the High Court restoration application is to restore the company to the register of companies. It is not relevant that the company was or is insolvent or that it owes money to creditors. This will not prevent the success of the applications. There is one slight exception which is where the debt is owed to the Revenue Commissioners. In that case, Revenue may refuse to issue a "letter of no objection" (which is one of the proofs required by the High court before it will make a restoration order) until it has some payment plan in place for ensuring outstanding taxes are paid.

What is I am a creditor making a restoration application? Does this mean I will get paid?

It is important to emphasise that a restoration application is not a method of debt recovery. While a company's creditor can make an application to restore a company, this is only the first step involved in actually enforcing the debt. It will still be necessary to subsequently enforce the debt once the company is restored. Neither does the fact that a creditor makes a successful restoration application entitle it to any priority in a subsequent liquidation.

I have discovered that my dissolved company has unsold assets. Can I restore the company in order to sell the assets even though I do not intend to continue trading?

Yes. There is no requirement that the company should continue trading once it has been restored. The purpose of the restoration may be to carry out a single transaction such as an asset sale, insurance claim or pursuit of a legal remedy. After that, the company can be voluntarily struck off the register.

I am a shareholder and I have just discovered that my company was struck off the register because of the inaction of the directors. Do I need to restore the company to sue the directors?

Not necessarily. It may be possible to issue proceedings against them personally without any need to restore the company. However, there may be situations where it is necessary to restore the company so that it can be joined in the proceedings against the directors. Whether or not you need to restore the company will depend on the nature of the intended proceedings against the directors.

How likely is it that my High Court restoration application will succeed?

The vast majority of restoration applications which we make are successful. This will, however, depend on the facts of the specific case. For example, if the company has been dissolved for more than 20 years then the application will fail. Similarly, if the company owe money to Revenue then this will delay the application or even result in it being unsuccessful (although there may be other ways to restore the company in that situation).

Are restoration applications expensive?

They are relatively inexpensive compared to many other High Court applications. The thing that does add significantly to the cost of restoration applications is the outlays i.e. things which are not directly associated with the application itself. For example, an accountant will need to be paid to prepare all outstanding returns and accounts which will then need to be delivered to the CRO along with the relevant fees and penalties. These can often be higher than the legal fees in the High Court application itself.

What are the legal fees for a restoration application to the High Court?

In most cases, we can offer a fixed fee application. Click here for more information about that.

How long will it take before the company is restored?

We can prepare the legal documentation quite quickly (usually within one week) and this will then be filed with the High Court for a hearing date. The documents, along with the hearing date, will then need to be served on the notice parties. It will also be necessary to obtain the relevant consent letters from those notice parties, which means that the outstanding returns etc will need to be prepared and Revenue will need to be satisfied that the application is in order. On average, it takes between 4-6 weeks to obtain the court order.

Can I restore a company which has been dissolved following a liquidation?

Yes, but this is a slightly more complex application. If a company has already been liquidated then it would be necessary to untangle all the work done by the liquidator (payments to creditors etc). Please contact us for more information about that application.

Author: Mahmud Samad BL
Publication date: 1st December 2022

CORPORATELEGAL