Advisory & Restructuring

A winding up of a company on foot of a petition presented to the High Court is known as a Court or an Official Liquidation.

Who can petition the High Court to wind up a company?

A company, a director or shareholder may petition for the appointment of an Official Liquidator or more likely a creditor of the company can make this petition on foot of an unpaid sum owing by the company to the creditor.

The applicant must demonstrate that the company is unable to pay its debts.

Who is the Official Liquidator responsible to?

The Official Liquidator is an officer of the Court and is required to report to the High Court on the work carried out in the Liquidation and his findings in respect of the investigation into the affairs of the company.

How can we assist?

On behalf of a company going into Liquidation:

• Act as the company’s nominee as Official Liquidator
• Prepare the Statement of Affairs
• On behalf of creditors of a company going into liquidation
• Act as the creditor’s nominee as Official Liquidator
• Review a creditor’s claim against the company
• Advise on retention of title rights

A Creditors’ Voluntary Liquidation is when an insolvent company voluntarily enters Liquidation.

Who decides?

Who decides on who the Liquidator should be in a Creditors’ Voluntary Liquidation?

The company will usually have its own nominee as Liquidator in attendance at the creditors’ meeting. However, the creditors of the company are entitled to present an alternative nominee at the creditors’ meeting.

What are the implications for Directors?

What are the implications for directors if a company is unable to pay its debts as they fall due?

In certain circumstances the directors may be liable for certain of the company liabilities; thus directors need to be mindful of the current financial position of the company at all times and seek professional advice at the earliest possible time.

What steps should Directors take?

Once a decision has been made to place the company in Liquidation, what steps should the directors take?

The company should incur no further credit as it is insolvent.

If the bank account is overdrawn all future takings should be lodged into a separate bank account with a separate bank.

Creditors should not be allowed to remove any item from the premises, as all claims will be dealt with by the Liquidator once appointed.

What are the duties of a Liquidator?

Once appointed, the Liquidator is responsible for securing and realising all the company’s assets.

The Liquidator has a statutory obligation to carry out an investigation into the affairs of the company and must form a view on whether the directors have acted honestly and responsibly.

What is the procedure?

What is the procedure for appointing a Liquidator in a Creditors’ Voluntary Liquidation?

Once the directors resolve to make a recommendation to the members of the company to place the company into Creditors’ Voluntary Liquidation, meetings of both members and creditors should be convened giving sufficient notice (a minimum of 10 days when consent to short notice is obtained from the company auditor).

The directors must then prepare an estimated statement of affairs which will be provided to each of the creditors at the meeting.

What is the role of a Committee of Inspection?

The Committee of Inspection is made up of members and creditors and their function is to assist the Liquidator when requested, approve fees and legal actions and attend meetings to review the course of the Liquidation.

If a creditor receives notification of a creditor’s meeting and they have stock at the company’s premises what should they do?

It is advisable for a creditor to attend at the company’s premises in order to carry out a stock-take of the goods on the premises on this date.

There are different types of retention of title clauses that form part of the contract of sale and the Liquidator will review the creditor’s retention of title clause in advance of returning any goods.

Employee’s claims

What types of Employee’s claims can arise in a Creditors’ Voluntary Liquidation?

Employees are entitled to make a claim for arrears of wages, holiday pay, minimum notice and redundancy in the Liquidation which is payable by the Department of Social Protection.

How can we assist?

On behalf of the company going into Liquidation:

• Act as the company’s nominee as Liquidator
• Prepare a Statement of Affairs
• On behalf of a creditor of a company going into Liquidation
• Attend the creditors meeting
• Act as the creditor’s nominee on the committee of inspection
• Review a claim against the company
• Advise on retention of title rights

At Azets, we are experts in the field of formal and informal debt restructuring solutions – with a wealth of experience in bank, private equity fund and other secured creditor negotiations.

Over the last number of years, we have developed a ‘best in practice’ strategic approach to advising businesses in every aspect of the process from understanding your loan agreements to formulating a professional plan to support your creditor negotiations.

We are well versed in indigenous bank credit policies and offer honest and realistic options to you for resolving your financial difficulties. Our specialist restructuring team is on hand to help.

Examinership was introduced to enable insolvent companies explore all opportunities for their survival.

This is a rescue process that involves the appointment of an Examiner (usually a practising accountant) to examine the business and shepherd the company through a breathing-space restructuring period. Examinerships in Ireland last up to 100 days.

What is an Examinership?

Examinership is a process whereby the protection of the court is obtained to assist the survival and restructuring of an insolvent company. The process results in all assets of the company being protected so that a viable enterprise can be saved, thereby, saving the jobs of the employees.

When is an Examinership appropriate?

An Examinership is generally appropriate when there is a viable trading business with employees who depend on the company for their livelihoods, and the business has a reasonable prospect of survival should a Scheme of Arrangement be entered into, with the company’s creditors.

Who can avail of Examinership?

Any insolvent Irish company with a reasonable prospect of survival can seek the appointment of an Examiner.

What is Azets' experience of Examinership?

Azets is the leading Examinership firm in Ireland. Having acted either directly or indirectly in over 300 examinerships in recent years our staff possess a high level of knowledge and experience in this area.

How can we assist?

• Help companies determine whether they are suitable candidates for examinership.
• Act as the examiner if nominated by shareholders, directors or creditors.
• Advise and assist with preparing applications to the Court for the appointment of an examiner.
• Act as Independent Expert and prepare a report required by the Court.
• Advise suppliers/creditors of companies in examinership.

Read more here.

A Receivership is used for the purpose of enforcing security and it will usually be a bank or private equity fund who appoints a Receiver on foot of a debenture which incorporates a fixed and/or floating charge over the assets of a company.

When is a Receivership suitable?

A Receivership is suitable in a variety of cases but arises primarily when the faculty under which funding has been provided is in default or where a company is being placed in or is under threat of Liquidation.

What determines the powers of a Receiver?

The powers and duties of the Receiver will be dependent on the terms of the debenture under which he is appointed. The debenture will include conditions for the appointment of the Receiver which may include a loan being in arrears, or the terms of the facility being in default.

What are the duties of a Receiver?

The main duty of the Receiver is to realise the assets included in the debenture and to discharge the amount owing to the debenture holder. In the case of a debenture which incorporates a floating charge the Receiver must first discharge the preferential creditors in advance of making any payment to the debenture holder on foot of the floating charge.

In certain circumstances, the floating charge may be crystallised into a fixed charge prior to the appointment of the receiver, thereby giving the debenture holder priority over the preferential creditors.

How can we assist?

Azets has years of experience in dealing with receiverships. We can: 

• Act as the appointed receiver by the secured lender.
• Advise a company when a receiver has been appointed.
• Advise on the planning required for an enforcement strategy.

Cashflow management is a key component of turning around a viable business. We can:

• Work closely with the company’s finance function on a daily basis.
• Ensure adequate credit controls are in place tailored to the relevant industry.
• Assist in the preparation and monitoring of cashflow projections.
• Identify and address any pending cashflow problems to ensure no disruption to trade.
• Line by line review of overheads with a view to eliminating unnecessary costs.
• Negotiate with company suppliers to ensure maximum credit terms have been achieved.