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38 1976

BUILDING SOCIETIES ACT, 1976

PART III

Control of Societies by Registrar

Power of Registrar to appoint inspector or call special meeting.

29. —(1) Where—

(a) an application is made to the Registrar, in the case of a society having more than 1,000 members, by not less than 100 of those members and, in any other case, by not less than one-tenth of the total number of members of the society, or

(b) the Registrar is of the opinion that an investigation should be held into the affairs of a society or that the affairs call for consideration by a meeting of the members of the society,

the Registrar may appoint one or more inspectors to investigate the affairs of the society and to report thereon in such manner as he directs, or may call a special meeting of the society.

(2) The Registrar may, either on the same or on different occasions, both appoint an inspector and call a meeting under subsection (1).

(3) (a) An application under this section shall be supported by such evidence as the Registrar may direct, for the purpose of showing that the applicants have good reason for requiring the investigation to be made or the meeting to be called and that they are not actuated by malicious motives in their application.

(b) Notice of the receipt of the application shall be given to the society by the Registrar.

(c) All expenses of and incidental to the investigation or meeting shall be defrayed (whether by the applicants or out of the funds of the society or by the members or officers or former members or officers of the society) as the Registrar may direct and, before appointing an inspector or calling a meeting, the Registrar may require the applicants to give security, in such amount as he considers reasonable, for payment of the cost of the investigation or meeting.

(4) (a) The Registrar may give such directions as he thinks fit in relation to the calling, holding and conduct of a meeting held under this section (including the time and place of the meeting and what matters are to be discussed and determined at the meeting).

(b) The Registrar may appoint a person to be chairman at a meeting held under this section.

(c) The power of a meeting held under this section to appoint its own chairman shall be exercisable in default of such an appointment by the Registrar.

(d) A meeting held under this section shall have all the powers of a meeting called according to the rules of the society.

(e) This subsection shall have effect notwithstanding anything in the rules of the society.

(5) Before appointing an inspector or calling a meeting under this section the Registrar may, if he is of the opinion that it would not be prejudicial to the interests of members or creditors, notify the society in writing of the action which he proposes to take and of the grounds on which he proposes to take it and, in such a case, the society shall, within 14 days of the receipt of the notification, be entitled to give to the Registrar an explanatory statement in writing.

(6) Where an inspector appointed under this section to investigate the affairs of a society thinks it necessary for the purposes of his investigation to investigate also the affairs of any other society or any body corporate which is or has at any relevant time been associated with the first-mentioned society, he shall with the approval of the Registrar, have power to do so, and shall report on the affairs of the other society or body corporate so far as he thinks the results of his investigation thereof are relevant to the investigation of the affairs of the first-mentioned society.

Provisions supplemental to section 29.

30. —(1) It shall be the duty of all officers, members and agents of a society the affairs of which are being investigated under section 29 to produce to the inspector all books, accounts, deeds, records or other documents of or relating to the society which are in their power, possession or procurement and otherwise to give to him all assistance in connection with the investigation which they are reasonably able to give, and the inspector may examine on oath the officers, members and agents of the society in relation to its business and for this purpose may administer an oath.

(2) If any officer, member or agent of the society refuses to produce to the inspector any book or document which it is his duty under this section to produce or refuses to answer any question put to him by the inspector with respect to the affairs of the society, the inspector may certify the refusal under his hand to the Court and the Court may thereupon inquire into the case and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and after hearing any statement which may be offered in defence, punish the offender in like manner as if he had been guilty of contempt of court.

(3) Subject to subsection (4), if the inspector thinks it necessary for the purpose of his investigation that a person whom he has no power to examine on oath should be so examined, he may apply to the Court and the Court may, if it thinks fit, order that person to attend and be examined on oath before it on any matter relevant to the investigation, and on any such examination—

(a) the inspector may take part therein by solicitor or counsel;

(b) the Court may put such questions to the person examined as it thinks fit;

(c) the person examined shall answer all such questions as the Court may put or allow to be put to him, but may at his own cost employ a solicitor (with or without counsel) who shall be at liberty to put to him such questions as the Court may think fit for the purpose of enabling him to explain or qualify any answers given by him;

and notes of the examination shall be taken down in writing, and shall be read over to or by, and signed by, the person examined and may thereafter be used in evidence against him.

(4) Notwithstanding anything in subsection (3) (c) the Court may allow the person examined such costs as, in its discretion, it may think fit, and any costs so allowed shall be paid as part of the expenses of the investigation.

(5) An inspector appointed under section 29 shall make a report to the Registrar.

(6) The Registrar shall—

(a) forward a copy of any report made by an inspector under this section to the Minister, the Minister for Finance, the Minister for Industry and Commerce and the chief office of the society;

(b) if he thinks fit, furnish a copy thereof on request and on payment of such fee as he may fix to any other person who is a member of the society or of any other body corporate dealt with in the report by virtue of section 29 (6) or whose interests as a creditor of the society or of any such other body corporate appear to the Registrar to be affected;

(c) at the request of the applicants for the investigation, furnish a copy to them on payment of such fee as may be fixed by the Registrar;

(d) furnish a copy to the Court where application is made to the Court under subsection (3).

(7) The Registrar may, if he thinks fit, cause the report to be printed and published.

(8) The Minister may lay the report under subsection (6) before each House of the Oireachtas and such publication shall be privileged.

(9) (a) Where it appears to the Registrar that any person has, in relation to the society the affairs of which have been investigated under section 29, been guilty of any offence for which he is criminally liable, the Registrar shall refer the matter to the Director of Public Prosecutions.

(b) Where the Director of Public Prosecutions institutes proceedings consequent on the receipt by him of a report under paragraph (a), it shall be the duty of all officers, members and agents of the society (other than the defendants in the proceedings) to give him all assistance in connection with the prosecution which they are reasonably able to give.

(10) Where it appears to the Registrar after consideration of the inspector's report under subsection (5) that it is expedient to do so he may, unless the society is being wound up by the Court, petition the Court for an order to wind up the society under section 95.

(11) (a) Where it appears to the Registrar after consideration of an inspector's report under subsection (5) that proceedings ought in the public interest to be brought by the society for damages, in respect of any fraud, misfeasance or other misconduct in connection with the promotion or formation of the society, for the recovery of any property misapplied or wrongfully retained, the Registrar may himself bring proceedings for that purpose in the name of the society.

(b) The Minister may indemnify the society against any costs or expenses incurred by it in or in connection with any proceedings brought under paragraph (a).

(12) A copy of any report of an inspector appointed under section 29 shall be admissible in any legal proceedings as evidence of the opinion of the inspector in relation to any matter contained in the report.

(13) Nothing in this section shall require disclosure to the Registrar or to an inspector appointed by him—

(a) by a solicitor of any privileged communication made to him in that capacity, or

(b) by bankers of any information as to the affairs of any of their customers other than the society the affairs of which are being investigated.

(14) (a) In this section any reference to officers or to agents of a society shall include past as well as present officers and agents and, for the purposes of this section, “agents” shall include the bankers, solicitors and auditors of the society.

(b) Where an inspector investigates under section 29 (6) the affairs of any other society or any body corporate, any reference in this section to officers or to agents of a society shall be construed as including a reference to officers or agents of that other society or body corporate.

Power of Registrar to suspend raising of funds, etc.

31. —(1) Where the Registrar is of the opinion that a society has become or is likely to become unable to meet its obligations to its creditors, or considers it expedient in the interests of its members or of the orderly and proper regulation of building society business or if the society is being investigated under section 29, he may direct a society in writing to suspend for such period, not exceeding two months, as shall be specified in the direction one or both of the following:—

(a) the acceptance of any subscriptions for shares (other than subscriptions which fell due but were not paid before the date of the direction) or any deposits or loans; or

(b) payments which have not been authorised by the Registrar.

(2) A direction under this section shall have effect in accordance with its terms but, notwithstanding the issue of a direction, a society may borrow money from a bank or from an officer of the society if the Registrar consents in writing to such borrowing.

(3) Where he considers that it would not be prejudicial to the members or creditors or to the orderly and proper regulation of building society business, the Registrar may give the society and every director of the society not less than 14 days' notice of his intention to issue a direction under subsection (1) and any such notice shall specify the considerations by reference to which he considers the issue of a direction to be necessary.

(4) Where notice of intention to give a direction is given under subsection (3), the Registrar shall consider any representations made to him in relation to the proposed direction within such period (of not less than 7 days) as he may specify from the date on which the notice is given.

(5) A direction under this section by the Registrar to a society shall specify the considerations (being considerations specified in a notice under subsection (3)) by reference to which he considered it necessary to issue the direction.

(6) A notice under this section may be served on a director of a society by sending it by post to his address as notified to the Registrar, but failure so to serve such a notice shall not affect the validity of a direction under this section.

(7) A direction may be revoked at any time by the Registrar.

(8) The Registrar shall cause to be published in Iris Oifigiúil, and in such other way as appears to him expedient for informing the public, notice of the issue of a direction and of its revocation.

(9) Where at the time a direction is given to a society by the Registrar a member of the society is under an obligation to pay instalments to the society by way of subscriptions for shares, the obligation to pay such instalments shall be suspended for the period during which the direction is in force and, accordingly, if the direction is revoked the subscriptions shall again become payable by instalments.

(10) (a) This subsection applies where the Registrar has made a direction under this section and the direction has not been revoked.

(b) It shall be the duty of the society to make reasonable arrangements for using the funds of the society to meet applications by depositors or shareholders in the society (being applications duly made in accordance with the rules of the society) for repayment of the money deposited or subscribed by them.

(c) Where it appears to the Registrar that the society has been applying an undue proportion of the funds of the society in making loans, in preference to meeting such applications as are mentioned in paragraph (b) he may, after giving notice to the society and affording it an opportunity of making representations, petition the Court under section 95 for an order to wind up the society under that section.

(11) Reference in this section to the amount due by way of subscriptions for a share in a society shall not include amounts due in respect of a share which represents interest on, or the repayment of, an advance made to the holder of the share.

Power of Registrar to suspend advertising.

32. —(1) Where the Registrar is of the opinion that a society has become or is likely to become unable to meet its obligations to its creditors, or considers it expedient in the interests of its members or of the orderly and proper regulation of building society business, or where a society is being investigated under section 29, he may issue a direction to the society—

(a) in relation to the information which the society shall include in any advertisement to be published by or on its behalf or in any statement to the public to be made by it or on its behalf, or

(b) not to advertise for or otherwise solicit deposits or subscriptions for shares, or

(c) not to issue an advertisement of a description specified in the direction or substantially similar to such description, or

(d) to take all practical steps to withdraw any notice, circular, photograph or film used or capable of being used to advertise for or otherwise solicit deposits or subscriptions for shares.

(2) A direction under this section may relate to one or more of the matters referred to at paragraphs (a) to (d) of subsection (1).

(3) Where he considers that it would not be prejudicial to the members or creditors or to the orderly and proper regulation of building society business, the Registrar may give a society and every director of the society not less than 14 days' notice of his intention to issue a direction under this section, and any such notice shall specify the considerations by reference to which he considers the issue of a direction to be necessary.

(4) Where notice of intention to give a direction is given under subsection (3), the Registrar shall consider any representations made to him in relation to the proposed direction within such period (of not less than 7 days) as he may specify from the date on which the notice is given.

(5) A direction under this section by the Registrar to a society shall specify the considerations (being considerations specified in a notice under subsection (3)) by reference to which he considered it necessary to issue the direction.

(6) A notice under this section may be served on a director of a society by sending it by post to his address as notified to the Registrar but failure so to send such a notice shall not affect the validity of a direction under this section.

(7) A direction under this section may be varied or revoked by the Registrar at any time.

Order by Court regarding direction under section 31 or 32.

33. —(1) A society to which a direction is given under section 31 or 32 may apply to the Court for an order setting aside the direction and the Court may grant such an order.

(2) The Registrar may apply to the Court for an order confirming a direction under section 31 or 32 or for an order confirming and extending the period of operation of a direction under section 31 for such time as the Court may, having regard to all the circumstances, consider appropriate, and the Court may grant such an order.

(3) The Court may, in addition to or in lieu of making an order under subsection (2), make such other order in relation to the matter as may appear to it to be necessary.

(4) Where an order is made under subsection (2) confirming and extending the period of operation of a direction under section 31, the society shall be deemed for the purposes of section 95 to be unable to pay its debts.

(5) The whole or part of proceedings under this section or of an appeal in relation thereto may be heard in chambers.

Power to inspect and obtain documents, etc.

34. —(1) The Registrar may at any time serve a notice on a society or on any person who has in his power, possession or procurement books, accounts, deeds, records or other documents relating to the business of a society, or who is or has been an officer, servant, auditor or agent of a society, requiring the production to the Registrar of such documents or the furnishing to him of such information relating to the business of the society as he may consider necessary for the purposes of his powers under sections 31 and 32.

(2) A notice under subsection (1) may not require a person, other than a person who is or has been an officer, servant, auditor or agent of the society, to produce a document which does not belong to the society, unless the document is a title document relating to property mortgaged to the society.

(3) (a) The Registrar or a person duly authorised in writing in that behalf by the Registrar may, for the purpose of the performance by the Registrar of his functions under this Act and on production of his authorisation if so required, at all reasonable times enter premises and inspect and take copies of or extracts from the books and records of a society.

(b) A person who has in his power, possession or procurement any of the books and records referred to in paragraph (a) shall produce them at the request of the Registrar or a person duly authorised under this section and shall permit the person to inspect and take copies of or extracts from them and give him any information which he may reasonably require regarding any entries in them.

(4) A person who fails to comply with a notice or request under this section, or obstructs a person acting in the course of his duties under subsection (3), refuses to permit the taking of copies or extracts under this section or refuses to give information required under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200, and in the case of a continuing offence shall be liable to a further fine of £10 for each day on which the offence is continued.

Control of advertising.

35. —(1) (a) The Registrar may give directions relating to the matter and form of any advertisement or other means of soliciting deposits or subscriptions for shares in a society, and may direct a society to take all practical steps to withdraw an advertisement.

(b) A direction under this section shall specify the considerations by reference to which the Registrar considered it necessary to issue the direction.

(2) Without prejudice to the generality of subsection (1), a direction under this section may require that advertisements or other means of soliciting deposits or subscriptions for shares in a society shall include a statement concerning the financial position of the society or giving any particular information relating to the society.

(3) A direction under this section may apply to all societies or to a specified class or classes of societies (denoted by reference to such matters as the Registrar may consider appropriate) and to all advertising or other means of soliciting deposits or subscriptions for shares in a society or to a specified class or classes (so denoted) of advertising or other means of soliciting deposits or subscriptions for shares in a society.

Forms and fees.

36. —(1) The Registrar may fix the form of any application, notice or other document made or sent to him under this Act or required to be so made or sent.

(2) Without prejudice to any other power conferred by this Act, the Registrar may, with the consent of the Minister for Finance, fix fees to be paid for the inspection of any document or the furnishing of any copies in his custody or in connection with the exercise by him of any of his functions under this Act, and any moneys received by him under this subsection shall be paid into the Exchequer.