Company secretary refusing to comply with request

[Singleh]

Hi all,

I along with a group of other residents on the estate where I live have recently been voted in as directors of a management company. The management company is responsible for maintaining some communal grounds near our home.

Since being voted in as directors we want to remove the company secretary and maintenance provider, as both of them are effectively one and the same company and dont do any work. We have informed them that we have given them notice of their services. To which they are saying they have a 3 month notice period, but refuse to a share a contract with us that proves this.

We have requested the company authentication codes from the existing secretary so we can appoint a new company secretary, but the secretary is refusing and saying they will only hand them over at the end of their notice period due to their internal processes.

They are saying we have to be appointed through them, and not allowing us to do it ourselves or engage another secretary. Does that sound right?

Any advice appreciated. Thanks.

 

[WaveJumper]

No nothing about this sounds right. Who set up the management company, who else sits on the board, I assume this is a ltd company with articles etc and if so what does it say in there about removing individuals who may have been voted in etc

 

[Elliot Green]

Hi all,

I along with a group of other residents on the estate where I live have recently been voted in as directors of a management company. The management company is responsible for maintaining some communal grounds near our home.

Since being voted in as directors we want to remove the company secretary and maintenance provider, as both of them are effectively one and the same company and dont do any work. We have informed them that we have given them notice of their services. To which they are saying they have a 3 month notice period, but refuse to a share a contract with us that proves this.

We have requested the company authentication codes from the existing secretary so we can appoint a new company secretary, but the secretary is refusing and saying they will only hand them over at the end of their notice period due to their internal processes.

They are saying we have to be appointed through them, and not allowing us to do it ourselves or engage another secretary. Does that sound right?

Any advice appreciated. Thanks.

Have you written them an email to enquire as to why they have refused to evidence their 3 month contractual right?

 

[Singleh]

Have you written them an email to enquire as to why they have refused to evidence their 3 month contractual right?

No, but I was literally composing that email as I speak! Now that we have been voted in, I am adressing it to them as a director.

 

[Singleh]

No nothing about this sounds right. Who set up the management company, who else sits on the board, I assume this is a ltd company with articles etc and if so what does it say in there about removing individuals who may have been voted in etc

The management company is a ltd company and this is sadly a standard but commonplace concept on new build estates. I have copied the text from our articles.

26 Secretary
The directors may appoint any person who Is willing to act as the secretary of the company on
such terms (including, but not hm1ted to, term of office and remuneration) and subject to such
condItIons as they may think fit and from time to time remove such person and, If the directors
determine, appoint a replacement secretary of the company, In each case by a decIsIon of the
directors

We held a meeting of directors yesterday and collectively voted to change company secretary. We then emailed the company secretary to ask for the codes to which they have not complied.

 

[kulture]

Get a copy of your articles of association. Make sure that you call a proper meeting with the correct notice etc. Then appoint a solicitor to advise you and write to the company secretary and maintenance company to dismiss them. Use the solicitor to ensure that it is all done correctly and to ensure that they can no longer bullshit you.

 

[Daybooks]

The management company is a ltd company and this is sadly a standard but commonplace concept on new build estates. I have copied the text from our articles.

26 Secretary
The directors may appoint any person who Is willing to act as the secretary of the company on
such terms (including, but not hm1ted to, term of office and remuneration) and subject to such
condItIons as they may think fit and from time to time remove such person and, If the directors
determine, appoint a replacement secretary of the company, In each case by a decIsIon of the
directors

We held a meeting of directors yesterday and collectively voted to change company secretary. We then emailed the company secretary to ask for the codes to which they have not complied.

The role of a company secretary is quite distinct from that of a management company.

Nevertheless the role of a company secretary would include those of keeping Companies House informed of changes, appointments and resignations or removals of both directors and secretaries. Remind the secretary that they would be failing in their duties not to file the changes.

Whilst the secretary might just be being over protective just call a Directors meeting and remove any internal procedures preventing disclosure or handing over of authentication codes, with outgoing secretary present. It will do more than solve the issue.

I have never had cause to, but believe you can get the authorisation code delivered to the registered address by Companies House.

 

[Singleh]

Get a copy of your articles of association. Make sure that you call a proper meeting with the correct notice etc. Then appoint a solicitor to advise you and write to the company secretary and maintenance company to dismiss them. Use the solicitor to ensure that it is all done correctly and to ensure that they can no longer bullshit you.

Noted and we are now investigating this option. Many thanks.

The role of a company secretary is quite distinct from that of a management company.

Nevertheless the role of a company secretary would include those of keeping Companies House informed of changes, appointments and resignations or removals of both directors and secretaries. Remind the secretary that they would be failing in their duties not to file the changes.

Whilst the secretary might just be being over protective just call a Directors meeting and remove any internal procedures preventing disclosure or handing over of authentication codes, with outgoing secretary present. It will do more than solve the issue.

I have never had cause to, but believe you can get the authorisation code delivered to the registered address by Companies House.

Thanks for your response. The company secretary is owned and staffed by the grounds maintenance company who we are also trying to remove, the two are working together to keep our contract running for a few months and squeeze the last drop of money they can out of us.
I believe this is the reason they are being reluctant. We did have a directors meeting to vote them out and vote in a new company secretary but didnt invite the company secretary. Should this be enough, or should we hold the meeting again and invite them?

 

[Newchodge]

The company secretary is owned and staffed by

You mean the company secretary is not a person but is, in fact, another company?

 

[kulture]

Is it a properly constituted meeting if you did not invite the company secretary?

If the company secretary is also a director, or if you exclude a director from the invite, then it is likely not to be a valid meeting.

 

[Singleh]

You mean the company secretary is not a person but is, in fact, another company?

The company secretary service is being provided by a company called mainstay secretarial services, who happen to be owned by Firstport the maintenance company. The directors of Firstport are also the directors of the company secretary company. There is of course a person that we deal with.

 

[Singleh]

Is it a properly constituted meeting if you did not invite the company secretary?

If the company secretary is also a director, or if you exclude a director from the invite, then it is likely not to be a valid meeting.

It was a constitued meeting and the company secretary is not a director.

 

[Newchodge]

The directors may appoint any person who Is willing to act as the secretary of the company on
such terms (including, but not hm1ted to, term of office and remuneration) and subject to such
condItIons as they may think fit and from time to time remove such person and, If the directors
determine, appoint a replacement secretary of the company, In each case by a decIsIon of the
directors

I would suggest that the current 'company secretary' is not properly appointed as they are not a person.

 

[Daybooks]

Noted and we are now investigating this option. Many thanks.


Thanks for your response. The company secretary is owned and staffed by the grounds maintenance company who we are also trying to remove, the two are working together to keep our contract running for a few months and squeeze the last drop of money they can out of us.
I believe this is the reason they are being reluctant. We did have a directors meeting to vote them out and vote in a new company secretary but didnt invite the company secretary. Should this be enough, or should we hold the meeting again and invite them?

A company secretary, unless formed as a corporate body, is an individual and thus not owned by anyone. The secretary either way will be an officer of your Company and as such your Directors decide who that will be and they must comply with direction given by those Directors.


The point of the meeting suggested was merely to enforce that any perceived, or other otherwise, procedures can simply be undone by the current Directors.

As they are effectively removed you now have fourteen days (I believe) to file such changes at Companies House. There would be no reason to reconvene merely to be courteous to the outgoing Secretary. However, although am no legal expert I would trust that a person knowingly preventing someone from fulfilling their statutory duties, as would be the case here if the access to filing is prevented, would be a criminal offence, if not somewhat churlish. Might be good to remind them regardless. Do what is most convenient for your Company.

If requesting authentication codes from Companies House then make sure registered address is correct before doing so.

 

[fisicx]

Surely any director can request the codes? Doesn’t have to be the company secretary.

 

[Singleh]

A company secretary, unless formed as a corporate body, is an individual and thus not owned by anyone. The secretary either way will be an officer of your Company and as such your Directors decide who that will be and they must comply with direction given by those Directors.


The point of the meeting suggested was merely to enforce that any perceived, or other otherwise, procedures can simply be undone by the current Directors.

As they are effectively removed you now have fourteen days (I believe) to file such changes at Companies House. There would be no reason to reconvene merely to be courteous to the outgoing Secretary. However, although am no legal expert I would trust that a person knowingly preventing someone from fulfilling their statutory duties, as would be the case here if the access to filing is prevented, would be a criminal offence, if not somewhat churlish. Might be good to remind them regardless. Do what is most convenient for your Company.

If requesting authentication codes from Companies House then make sure registered address is correct before doing so.

Thanks for that, we are looking at legal options and suggest they are preventing us from fulfiling our duties and see where that leads us!

 

[Daybooks]

Thanks for that, we are looking at legal options and suggest they are preventing us from fulfiling our duties and see where that leads us!

Hopefully a legal threat will knock some much needed sense into them. Good luck.

 

[Singleh]

If requesting authentication codes from Companies House then make sure registered address is correct before doing so.

One thing I didnt quite understand was the last line about making sure registered address is correct before doing so, currently it is the address of the current secretary which we want to remove?

I thought we needed the code to appoint a new secretary and THEN change to the new address we will use, or am I getting the sequence of order wrong?

Are you saying we need to assign a new registered address first, if so how do we do that without the codes?

 

[Newchodge]

One thing I didnt quite understand was the last line about making sure registered address is correct before doing so, currently it is the address of the current secretary which we want to remove?

I thought we needed the code to appoint a new secretary and THEN change to the new address we will use, or am I getting the sequence of order wrong?

Are you saying we need to assign a new registered address first, if so how do we do that without the codes?

The problem you have is, if you apply for codes, they will be sent to the registered address. Which would be pointless.

 

[Newchodge]

The management company is a ltd company and this is sadly a standard but commonplace concept on new build estates. I have copied the text from our articles.

26 Secretary
The directors may appoint any person who Is willing to act as the secretary of the company on
such terms (including, but not hm1ted to, term of office and remuneration) and subject to such
condItIons as they may think fit and from time to time remove such person and, If the directors
determine, appoint a replacement secretary of the company, In each case by a decIsIon of the
directors

We held a meeting of directors yesterday and collectively voted to change company secretary. We then emailed the company secretary to ask for the codes to which they have not complied.

Did you include a copy of the Board meeting showing that the vote was taken?

 

[Singleh]

Did you include a copy of the Board meeting showing that the vote was taken?

I didnt buy we can send them that.

 

[Newchodge]

I didnt buy we can send them that.

There is a, possibly valid, argument from their sude that they need proof that they have been removed before they can take any action. Otherwise anyone could write to them.

 

[WaveJumper]

Think I would also be mentioning the audit the new board members will be carrying out, pretty certain you won't have been getting "value for money" I have a sneaky suspicion this is why the new residents / members have taken over the board.

 

[WaveJumper]

The company secretary service is being provided by a company called mainstay secretarial services, who happen to be owned by Firstport the maintenance company. The directors of Firstport are also the directors of the company secretary company. There is of course a person that we deal with.

Only had time for a quick look but an interesting string of companies, quite the spiders web I will have a look more closely at them in due course

 

[cjd]

I think you need to take this can of worms to a commercial solicitor who can provide proper advice once s/he's read the Articles and heard the full story. If you're running a management company on behalf of other residents you need one anyway - if only to protect the yourself. It's incredibly useful to have someone you can call to sort these things out quickly and properly - there will be more. If you're lucky there may even be one amongst the other residents. (btw, the same applies to accountants.)

 

[Daybooks]

One thing I didnt quite understand was the last line about making sure registered address is correct before doing so, currently it is the address of the current secretary which we want to remove?

I thought we needed the code to appoint a new secretary and THEN change to the new address we will use, or am I getting the sequence of order wrong?

Are you saying we need to assign a new registered address first, if so how do we do that without the codes?

You can file most if not all documents through your Companies House Account. You will need your online account with then and then will need the authentication code to access your Company’s account. This is why you need the code. If you do not know the authentication code then (I believe as it’s a long time since I’ve had the need to know) the code if requested will be sent to the registered address held by Companies House. That is why you need to make sure it is correct; otherwise it will strangely go missing.

The current registered address being that of the Corporate Secretary and removing them is otherwise irrelevant. If the registered address is that of the Corporate Secretary then you either coax it out of them (however you choose to do so) or, as long as you don’t have paper filing switched off (Companies House PROOF system) then file it via post signed by a serving director (that Companies House will recognise). If you do have PROOF in place then you’ll probably need to speak to Companies House.

Removing the Secretary and changing registered address are separate transactions and not dependent on each other.

This thread should be a lesson to all Companies not in control of their own Company Secretarial.