Bangor director agrees to disqualification
Stormont Executive press release - Department of Enterprise, Trade and Investment
A Bangor-based director of a company which traded as a city centre restaurant has been disqualified for seven years.
The Department of Enterprise, Trade and Investment (the Department) has accepted the disqualification undertaking from Jacques Diedericks (42) of Ballymaconnell Road, Bangor, in respect of his conduct as a director of Baconstown Ltd (“the Company”).
The Company traded as the restaurant Nevada Spur from Victoria Square, Belfast and went into liquidation on 4 November 2010 with assets of £NIL, liabilities of £1,141,208 to non-preferential creditors, and an estimated deficiency as regards creditors of £1,141,208. After taking into account the losses incurred by members (the shareholders) of the Company the total estimated deficiency was £1,141,210.
The Department accepted the disqualification undertaking from Jacques Diedericks on 5 June 2013 based on the following unfit conduct which solely for the purposes of the disqualification procedure was not disputed:
· acting in breach of his fiduciary duty to the Company;
· causing and permitting himself and his wife to be paid excessive remuneration from the Company during the period from 1 July 2009 to 31 May 2010 to the detriment of the Company creditors; and
· causing and permitting the Company to retain Crown monies in the sum of £348,530 consisting of £44,512 in respect of PAYE, £71,266 in respect of NIC and £232,752 in respect of VAT for the years 2008/09 to 2010/11.
The Department has accepted 31 Disqualification Undertakings and the Court has made 5 orders disqualifying directors in the financial year commencing 1 April 2013.
Notes to editors:
1. The Official Receiver, when a company is wound up by the Court, has a duty to investigate the causes of failure and report any unfit conduct to the Insolvency Service within the Department of Enterprise, Trade and Investment.
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 9054 8508.
7. The period of disqualification commences at the end of 21 days beginning with the day the Disqualification Undertaking was accepted by the Department.
Belfast Telegraph Digital