The Department for the Economy (the Department) has accepted a disqualification undertaking from the director of a company involved in a CrossFit Gym.
The undertaking was received for 11 years from Matthew Andrew Coffey (28) of Ballyharry Park, Newtownards, Co. Down in respect of his conduct as a director of Capacity Fitness Ltd (“the company”).
The company was involved in a CrossFit gym with a registered office at 8 Ballyharry Park, Newtownards, Co. Down, BT23 8QX. The company went into liquidation on 7 May 2021 with an estimated deficiency as regards creditors of £57,465. There was a total of £1 owing as Share Capital, resulting in an estimated deficiency as regards members of £57,466.
The Department accepted the disqualification undertaking from Matthew Andrew Coffey on 18 August 2023 based on the following unfit conduct which solely for the purposes of the disqualification procedure was not disputed:
- Applying for and obtaining a Bounce Back Loan of £50,000 when he knew or ought to have known that Capacity Fitness Ltd did not meet the eligibility criteria, as the Company was not trading as at 1 March 2020, this being one of the criteria a company must have satisfied in order to have been eligible to apply and receive a Bounce Back Loan. Applying for the maximum loan available of £50,000 notwithstanding the fact that the Company had no turnover from incorporation;
- Causing and permitting the misapplication of company funds and/or acting in a manner to benefit himself rather than the Company by transferring £35,856 of the Bounce Back Loan into his personal account. The Department has only been able to identify company expenditure totalling £27,694.06 resulting in £8,161.94 of the Bounce Back Loan being used for personal expenditure. Furthermore, he personally benefited by a further £7,245 as a result of selling company assets and not transferring the funds into the Company bank account; and
- Failing to comply with the requirements of the Companies Act 2006 with respect to the preparation of accounts by not recording all legitimate assets and liabilities of the Company. Therefore, filing false and misleading accounts.
The Department has accepted seven Disqualification Undertakings and the Court has made four Disqualification Orders in the financial year commencing 1 April 2023.
Notes to editors:
- Insolvency Practitioners acting as voluntary liquidators, administrative receivers and administrators have a duty to report unfit conduct to the Insolvency Service within the Department for the Economy.
- The aim of the Department is to bring disqualification proceedings against those directors of failed companies who have abused the privilege of limited liability status through negligence, incompetence or lack of commercial probity. The legislation contained in the Company Directors Disqualification (Northern Ireland) Order 2002 (“the 2002 Order”) is for the protection of the public and trading community but its operation should not inhibit genuine enterprise.
- In cases where a person is subject to either a Disqualification Order made by the Court or a Disqualification Undertaking accepted by the Department, that person shall not be a director of a company, act as a receiver of a company's property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless he has the leave of the High Court. A disqualified person cannot obtain permission to act as an Insolvency Practitioner.
- Article 9 of the 2002 Order provides that where a director is found to be unfit he must be disqualified for a minimum period of two years, up to a maximum of 15 years. The Courts have decided that the level of seriousness of unfit conduct can fall into three brackets with the top bracket of periods over ten years reserved for particularly serious cases, six to 10 years reserved for cases which do not merit the top bracket and two to five years for cases where, although disqualification is mandatory, the case is less serious.
- The 2002 Order also allows directors, with the agreement of the Department, to avoid the need for a court hearing by offering an acceptable Disqualification Undertaking. This has exactly the same legal effect as a Disqualification Order made by the court, and will usually include a schedule identifying the director’s unfit conduct. The consequences of breaching a Disqualification Undertaking are the same as those for breaching a Disqualification Order.
- If anybody contravenes a Disqualification Order or breaches their Disqualification Undertaking they may be committing a criminal offence and could go to prison for up to two years or face a fine or both. Any person with information to suggest that a disqualified person has acted in contravention of this provision should contact The Insolvency Service’s Directors Disqualification Unit on 028 90 548582.
- The period of disqualification commences at the end of 21 days beginning with the day the Disqualification Undertaking was accepted by the Department.
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