Chapter 40 - 40.0 MANAGEMENT COMPANY MEMBERS RIGHTS TO...

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(187) Orders compelling compliance with provisions of the Companies Acts (“Section 371 orders”) [40.01] Whenever a company, or any officer of a company, has defaulted in complying with any provision of the Companies Acts, it is possible for a member of the company 668 to seek an order from the High Court directing the company and any officer thereof to “make good” the default within such time as may be specified by the Court. 669 [40.02] Prior to the making of such an application to the High Court the applicant must first have served a notice on the company or officer concerned, requiring it or him/her, to make good the default within 14 days after the service of the notice, or such longer period as is specified in the notice. [40.03] It should be noted that Section 371 orders are available only where the alleged default is in complying with any provision of the Companies Acts. Where the alleged default concerns alleged non-compliance with an obligation which has its roots in a company’s articles of association, it is not appropriate for a Section 371 order to be sought. [40.04] So, for example, if the members’ complaint is that the company’s directors have failed to prepare accounts for the company, and have failed to circulate them to members in advance of the company’s AGM these are defaults in complying with statutory obligations under the Companies Acts. 670 As such they are defaults capable of being the subject of a section 371 order. However if the complaint is, for example, that the directors have co-opted someone to be an additional director of the company over and above the number of directors permitted under the company’s articles, this is an alleged breach of (where there are applicable 671 ) 668 Such applications may also be made by any creditor of the company, by the ODCE or by the CRO. 669 Section 371(1) of the Companies Act 1963, as amended by Section 96 of the Company Law Enforcement Act 2001 and Section 64 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005. 670 Section 148(1) of the Companies Act 1963 (as amended Regulation 4 of the European Communities (International Financial Reporting Standards and Miscellaneous Amendments) Regulations 2005, S.I. 116 of 2005) and Section 159(1) of the Companies Act 1963 are the relevant provisions. 671 See paragraph [9.05] concerning the extent to which the articles of association of any particular management company may not necessarily include all of the regulations contained in Table A or C.
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(188) Regulation 98 of Part 1 of Table A, or Regulation 47 of Table C. As such it is not capable of giving rise to an application under Section 371.
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Chapter 40 - 40.0 MANAGEMENT COMPANY MEMBERS RIGHTS TO...

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