Need help to issue proceedings

[des8]

Re: Need help to issue proceedings

Hi R0b
On reading back on this thread I note the OP says there are no Articles of Association.
At the risk of teaching my long departed Grandmother how to ........etc. etc. I thought I would mention that on registration of a company, if no special articles are presented, model articles are automatically applied.
Might make a difference to your weekend musings

[steveeasy]

Re: Need help to issue proceedings

Any action brought under a derivative claim is a two stage process, first you make the application for permission. The court decides whether to grant permission and then there will be a hearing to determine the application.

You must submit a particulars of claim along with the application. As for the court and fees for this I am not quite sure as to the correct court and fees I would need to look into it, I could be wrong but I don't think you could issue in the small claims it would need to be the high court at least.

@des8, not sure if the link you've posted is the correct one that could be under insolvency rules and when a liquidator makes an application for disqualification - would need to read it fully though.

Either way, it's not cheap. i was thinking earlier though, why don't you just resign, sell of your shares and seek advice as I suggested. That way you are not wasting court money it is then down to him to pay the creditors and you have a defence of avoiding liability by seeking professional advice on your options.

If you are so desparate to bring a claim I'll look into it fully over the weekend but it's not a simple process

Hi ,
good words of wisdom. I think I should just resign. do I not have to have his permission. most of the liabilities are in our own names so I wouls have to pay them. but clearly I am unable to influence where the company money goes and pays. hes said hes not paid anyone.

ill look in to resigning straight away. I do have some company assets to sell, not sure if I resign I can sell these yo pay creditors.
I thought staying as a director I could influence that the company paid its creditors. its not easy.

thank you for all the advice much appreciated.

steveeasy

[des8]

Re: Need help to issue proceedings

Before resigning, or taking any action, IMO you should seek professional advice.
Your liabilities already incurred as a director remain, and if you divorce yourself from the company now, you will have less opportunity to sort out the problems.
I don't see resignation as necessarily being the easy answer.

[steveeasy]

Re: Need help to issue proceedings

Hi,
your probably right. Im not sure even if I am a director. I was told I was sacked. Ive been advised I cant be without due processes, but ive also been advised a majority shareholder can sack me. what I hope is by demonstrating I have only one interest in paying creditors it will stand me in a good position. the majority shareholder has the money. he has not paid anyone. he does not want to pay the rent. the electric nor the loan.
I cant sell stock, im banned from the factory. I cant get any info regarding finances. im the secretary as well.

ive reported the VAT fraud to HMRC and told to do nothing to recover funds. but never heard back from them. I however do hold some company assets, and im going to sell them and pay the creditors. Im not after a single penny. so it should hopefully stand me in an honest position.


the other director has refused to open an account or let me to. we have funds but cant bank them. Ive offered to get a mediator several times but he says mediation is for rational people. really what can you do more. Ive been to insolvency practitioners they say it will cost thoudands to wind the company up.

Very good job Ive acted and have assets to sell, still the risk exists I could be accused of stealing assets. but the princible is if we have company funds and he is refusing to pay creditors(hes spent the money) selling assets is a rational move in my opinion.

But is it the interests of a company or paying creditors that take priority. it must be creditors surely.

thanks for the good advice all round. interested in what anyone thinks about sale of assets.

steveeasy

[des8]

Re: Need help to issue proceedings

Are you sure this company actually exists and is registered with companies house?
Sorry to ask such a damn fool question but you were unaware of the Articles of Association, and now you are unsure if you are even a director!

Before you do anything at all I would suggest you ascertain the status of this company and your position within it.
Check here to start with: www.gov.uk/get-information-about-a-company

[steveeasy]

Re: Need help to issue proceedings

Hi Des8,
yes I know ive come over as a bit of an air head. yes I do know its registered with companies house as I set it up in Feb this year. going through the process I did not find any info regarding articles of association, I am a director and a shareholder, the reason I said I am unsure of my position now, is the majority shareholder has told me he has sacked me. Ive ben told on here I cant just be dismissed without due processes. But ive been told by someone with a fair understanding of directorship and shareholders I can be. I tend to go with the information ive been provided on here though for obvious reasons.


I know it all sounds a little odd, but im not too stupid, there is little you can do when a partner closes an account and takes the money other thasn try and reason with him. that is not possible in the situation. I have managed to stop some customers paying him by writing to them informing them they should only pay the limited company. I cant open an account as clearly it needs both directors to approve it, and my partner has said no money will ever be paid in to the company while im part of it.

Ive taken assets of the company to sell to pay creditors or give some strength to convincing the other partner paying creditors, but he wont, hes had the money, spent it and there is nothing I can do. I cant do the legal route as it sounds to expensive. so ill sell the assets, pay the creditors and take my chance when im sued by the partner the court will see my intentions were purley to pay creditors. and this is completely true. I do not want anything from the company in any way whatsoever. I still though get accused of the opposite.

thank you

steveeasy

[des8]

Re: Need help to issue proceedings

Wasn't suggesting you were blond at all ..... I misread your comment re directorship as if you weren't sure if you had ever been a director!!
And no, you cannot be stripped of your directorship on a whim, without following the correct procedures.
And even if yor directorship is removed, you are still a shareholder, albeit in the minority.

I still think you should exercise great caution before you go selling the company assets off your own back, even if with the best of intentions.
What if you don't realise sufficient to pay all outstanding creditors?
I'm also concerned that you intend to sell assets, but have no company banking facilities.
Do you intend processing the monies through your own private account? I hope not!

You wish to work in the best interests of your clients.
Do you get on well with them on a personal basis?
Is there any chance they will initiate court action against the company to recover their dues?
Might be safer for you than going it alone!

[steveeasy]

Re: Need help to issue proceedings

Wasn't suggesting you were blond at all ..... I misread your comment re directorship as if you weren't sure if you had ever been a director!!
And no, you cannot be stripped of your directorship on a whim, without following the correct procedures.
And even if yor directorship is removed, you are still a shareholder, albeit in the minority.

I still think you should exercise great caution before you go selling the company assets off your own back, even if with the best of intentions.
What if you don't realise sufficient to pay all outstanding creditors?
I'm also concerned that you intend to sell assets, but have no company banking facilities.
Do you intend processing the monies through your own private account? I hope not!

You wish to work in the best interests of your clients.
Do you get on well with them on a personal basis?
Is there any chance they will initiate court action against the company to recover their dues?
Might be safer for you than going it alone!

hi,
what options have I got. ive opened an account, and it was closed by the other director. he wont open or allow ANOTHER one. hes had the income in his personal account and has not paid anyone. Surley I cant just sit waiting to pay people. Ive asked to agree a way forward.

Its utter madeness quite frankly, I should get the other Director put away in an asylum. of course he is actually hopeing I trip over. I will ensure the creditors are paid in full. cant do more than that. no physical possibility to continue working in the company. It would just lead to confrontation. rather not go that far, it really is not worth it.

thanks

steveeasy

[des8]

Re: Need help to issue proceedings

I think you need to divorce yourself as a person from the company. You and the company are separate persons.
The company has liabilities.
If it does not fulfill them, the creditors sue the company.

If you start selling the assets, and then banking the money privately (no matter how good your intentions) it could be construed as inappropriate action and you might be held liable for other company debts

[steveeasy]

Re: Need help to issue proceedings

Hi,
Unfortunately the liabilities our in my name. the rent is in our names. the electric is in our names. the other director knows this and therefore has said he will not pay them, hes not bothered about any action towards himself. Its the last thing I want. the only saving grace is the debts are relatively low.

Additionally My partner lent the company money, you may have guest, the other director will not pay this either. id like to clarify I have no access to any funds or have ever. the only time funds were going to be available was when the account was closed. the other director did this so he could get the funds. then he lied. he admitted having the funds 2 days ago. the police now have said as he has admitted it, then no fraud has taken place/

Actually its a bloody embarrassment quite frankly. how a couple of grown men can get in to a situation like this is utter madeness. Ive tried everything to reason, he wont budge. told me the company will never see any more money and ofcourse keeps going on about majority shareholder and his decisions. someone suggested bare knuckle fighting, not sure its the way to go.

steveeasy

[des8]

Re: Need help to issue proceedings

"the police now have said as he has admitted it, then no fraud has taken place"
That was a quick clear up for the force .... admit a wrong doing and there's no crime!!!!!!!!!!!!!

So the liabilities are in your sole name, except rent and utilities which are in joint names (joint & several I suppose?) .
Council tax??

Assets in Company name?

Some friend.

Still don't think you should go selling what assets remain.
As R0b suggested earlier a chat with a professional insolvency practitioner to begin with, followed probably by company initiating court action under Companies Act 2006

[steveeasy]

Re: Need help to issue proceedings

"the police now have said as he has admitted it, then no fraud has taken place"
That was a quick clear up for the force .... admit a wrong doing and there's no crime!!!!!!!!!!!!!

So the liabilities are in your sole name, except rent and utilities which are in joint names (joint & several I suppose?) .
Council tax??

Assets in Company name?

Some friend.

Still don't think you should go selling what assets remain.
As R0b suggested earlier a chat with a professional insolvency practitioner to begin with, followed probably by company initiating court action under Companies Act 2006

your right there. some friend. I am an idiot, I only became involved as he asked me and the idea initially was to maintain a steady sustainable business that ensured it paid its way in terms of fixed costs. I had no desire to take anything from the business, ie drawings.


Id happily instigate action on the companies behalf to recover the income he has made of with and get some sort of order so I could open an account to deposit the funds we have, but the cost I think would be disproportional. the rent and rates our in both our names but hes not bothered about CCJs, its the last thing I want. I have reported it to the insolvency service so I should get a response, and ive reported it to HMRC, but had no response.

thanks

steveeasy

[steveeasy]

Re: Need help to issue proceedings

oh assets were in company name, now apparently they are his brothers. but he was selling me a 50% share in them, But now the agreement is worthless as not witnessed.

it will sort its self out. Unfortunately though the company probally will never recover, and should not with a director who blatently does not want to pay creditors.

Steveeasy