The Department for the Economy (the Department) has accepted a disqualification undertaking from the director of a company buying and selling retail estate.
The undertaking was received for three years from James Johnston MacAulay (65) of Marine Parade, Whitehead, Co. Antrim in respect of his conduct as a director of Bodara Investments Limited (“the company”).
The Company acted as a buyer and seller of retail estate trading from 4 Joymount, Carrickfergus, BT38 7DN. The Company went into Liquidation on 9 November 2017 with an estimated deficiency as regards creditors of £44,718.58. There was a total of £2.00 owing as Share Capital, resulting in an estimated deficiency as regards members of £44,720.58
The Department accepted the disqualification undertaking from James Johnston MacAulay on 16 November 2022 based on the following unfit conduct which solely for the purposes of the disqualification procedure was not disputed:
- Causing and permitting Bodara Investments Limited to discharge a directors loan account totalling £9,734.00 in full giving rise to a preference payment as per Article 203 of the Insolvency (Northern Ireland) Order 1989;
- Causing and permitting Bodara Investments Limited to enter into a transaction at undervalue as per Article 203 of the Insolvency (Northern Ireland) Order 1989 by retaining the monies properly owed to the Company from the sale of the property;
- Failing to comply with the legislation in that annual accounts for the year ended 31 December 2012, 31 December 2011, 31 December 2010, 31 December 2009, 31 December 2008 and 31 December 2007 were filed late and annual accounts for the year ended 31 December 2016 were never filed; and
- Causing and permitting the company to fail to comply with the said legislation in that Annual Returns for the years ended 11 February 2016, 11 February 2015, 11 February 2014, 11 February 2013, 11 February 2012, 11 February 2011 and 11 February 2010 were not filed within the prescribed period and the Confirmation Statement for the year ended 11 February 2017 was never filed.
The Department has accepted eight Disqualification Undertakings and the Court has made one Disqualification Order in the financial year commencing 1 April 2022.
Notes to editors:
1. 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.
2. 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.
3. 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.
4. 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 fifteen 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 ten 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.
5. 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.
6. 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.
7. 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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