Tobermore Directors agree to disqualification
Stormont Executive press release - Department of Enterprise, Trade and Investment
The Department of Enterprise, Trade and Investment (the Department) has accepted disqualification undertakings from two Directors of a structural steel manufacturing company.
Clive Hamilton (51) and Elizabeth Belinda Hamilton (37), both of Rectory Road, Tobermore were disqualified for eight years each in respect of their conduct as directors of C.H. Industrial Plant Ltd (“the Company”).
The Company carried on the business of structural steel fabrication and manufacturing from Rectory Road, Tobermore, Magherafelt, Co. Londonderry and went into liquidation on 3 February 2011 with estimated total assets available for preferential creditors of £26,936, liabilities to preferential creditors of £6,728, liabilities to non-preferential creditors of £377,547, and an estimated deficiency as regards creditors of £357,338. After taking into account the losses incurred by members (the shareholders) of the Company the total estimated deficiency was £357,340.
The Department accepted the disqualification undertakings from the directors on 29 August 2013 based on the following unfit conduct which solely for the purposes of the disqualification procedure was not disputed:
· causing and permitting the Company to retain a sum of £251,762 which was properly payable to the Crown but not paid over consisting of £67,841 in respect of PAYE and £88,512 in respect of NIC for the years 2008/09 to 2010/11; and £95,409 in respect of VAT for the years 2009/10 and 2010/11;
· filing misleading and inaccurate accounts for the Company contrary to Article 234A of the Companies (NI) Order 1986;
· causing and permitting the Company to trade with the knowledge of insolvency to the detriment of creditors;
· failing to co-operate with the Liquidator as Office Holder;
· causing and permitting the Company to fail to file annual returns for the years ended 13 January 2004, 13 January 2006, 13 January 2007 and 13 January 2008 within the prescribed time period and to fail to file the annual returns for the years ended 13 January 2005 and 13 January 2010 at all;
· failing to file annual accounts for the Company for the year ended 30 April 2008 within the prescribed period.
The Department has accepted 55 Disqualification Undertakings and the Court has made 6 orders disqualifying directors in the financial year commencing 1 April 2013.
Notes to editors:
1. The directors are married.
2. Insolvency Practitioners acting as voluntary liquidators, administrative receivers and administrators have a duty to report unfit conduct to the Insolvency Service within the Department of Enterprise, Trade and Investment.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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