Startari v Attorney General et Al

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: George-Creque, J.
• Judgment Date: 27 October 2003
• Neutral Citation: AI 2003 HC 6
• Docket Number: AXA HCV 2003/0041
• Date: 27 October 2003

High Court

George-Creque, J.

AXA HCV 2003/0041

Startari

and

Attorney General et al

Appearances:

Mr. Ivor Greene for First and Second defendants

Mr. Terrance B. Neale instructed by Webster Dyrud Mitchell for claimant

Practice and procedure - Revival of company and restoration of it to Register of Companies — Whether application to set aside court's order for revival was misconceived — No authority found to support application — Application struck out as an abuse of process of the court.

George-Creque, J.

1 The claimant by way of Fixed Date Claim Form on July 7th 2003 appealed pursuant to Part 60 of the Civil Procedure Rules 2000 (“ CPR 2000”) the decision of the Registrar of Companies made on June 9t” 2003 under Section 204 (2) of the Companies Act of Anguilla R, S.A. c. C65 (“The Act”) reviving the Third named defendant BIOTECHNA ENVIRONMENTAL [2000] CORPORATION thereby restoring it the Register of Companies. The claimant in said Claim Form seeks the following reliefs:

• (1) An order that the decision of the Registrar of Companies to revive the Third defendant be set aside;

• (2) A declaration that the Second (third sic) defendant remains struck off the Register of Companies and dissolved; and

• (3) costs.

2 It is to be noted that the grounds of appeal, rather than being annexed to the Claim Form as stipulated by Rule 60.2( 1) CPR 2000, were contained in a separate document headed “Notice of Appeal” filed on even date as the Claim Form and also accompanied by a Statement of Claim. It is accordingly urged that litigants follow and adopt the procedure as laid down in CPR 2000.

3 The claimant has brought this appeal pursuant to Section 204(9) of the Act as a person aggrieved by the Registrar's decision in reviving the Third defendant and restoring it to the Register of Companies.

4 The First and Second defendants on 12t” September, 2003 filed a Defence, a Notice of Application, and an Affidavit of Thelsen Langston Connor, Registrar of Commercial Activities in Anguilla, in Reply. The First and Second defendants have sought in their application the following orders:

• (1) that the Fixed Date Claim Form and Statement of Claim of the claimant be struck out on the ground that the Statement of Claim discloses no cause of action and as being frivolous or vexatious or otherwise an abuse of the process of the Court; and

• (2) for costs.

5 It is the First and Second defendant's Application for striking out which was heard by the court. Written skeletal submissions were filed by counsel for the parties represented. The trust of the First and Second Defendant's contentions are:

• (a) that the claimant cannot avail himself, as a shareholder of the Third defendant, of the relief provided by Section 204(9) of the Act to appeal against the decision of the Registrar reviving (my emphasis) the Third defendant.

• (b) that there is no provision in the Act allowing for an appeal against a Registrar's decision to revive (my emphasis) a company and that the right of appeal given under Section 204(9) in essence, affords a right of appeal to the court only in the event of a refusal (my emphasis) by the Registrar to revive a company where an application for such revival has been made under Section 204(1) of the Act.

6 The trust of the claimant's submissions on the other hand is that Section 204(9) of the Act admits of no such limitation or restriction in construction of the right of appeal afforded under Section 204(9) and that the language in said Section being clear and unambiguous must be given its ordinary and natural meaning and thus gives the right of appeal to a certain class of persons whom are aggrieved by the Registrar's decision, be it to revive or a refusal to revive a company a right of appeal of such decision; That this is so notwithstanding that the appellant may or may not have been the person making the application to the Registrar provided the appellant fell into the category or classes of persons permitted under Section 204(1) of the Act to make an application to the Registrar for revival of the company.

7 In order to determine the issues raised, this of necessity involves the interpretation of the provisions of the Act and a consideration of the entire scheme of the Act so as to arrive at what meaning is to be given or intended by the Legislature to be given to Section 204(9) of the Act. Section 204 of the Act falls under Part 5 of the Act under the rubric “INSOLVENCY AND WINDING UP”. In order to construe Section 204(9) in its proper context it is useful to consider Sections 204 and Sections 205 of the Act both of which deal with revival of a company. Section 204 deals with revival of a company by the Registrar and Section 205 with revival of a company by the court. Both Sections are set out below in their entirety.

“Revival of company by Registrar

• 204. (1) When a company has been struck off the Register and dissolved under the former Act or under section 151, 208 or 241 of this Act, a person who, at the time of the dissolution of the company, was -

  • (a) a shareholder or director of the company;

  • (b) a creditor or debenture holder of the company;

  • (c) a liquidator or receiver of the property of the company;

  may apply to the Registrar for the revival of the company on any of the grounds referred to in subsection (3).

• (2) An Application made under subsection (1) shall contain the information and be in the form required by the Registrar and must be made within 20 years of the date of the dissolution of the company.

• (3) If the Registrar is satisfied that, of the time that the company was dissolved, it–

  • (a) was still carrying on business;

  • (b) was a party to legal proceedings;

  • (c) was in liquidation or receivership; or

  • (d) had property that had not been disposed of;

  he may issue a certificate of revival for the company and restore it to the Register upon such reasonable terms as he considers appropriate.

• (4) Before reviving a company under this section, the Registrar may require -

  • (a) the payment of -

    • (i) all fees and penalties that were due from the company at the date of its dissolution, and

    • (ii) all fees and penalties that would have been payable at the date that the application was made to him had the company not been dissolved including, in the case of a company struck off and dissolved under the former Act, the fees that would have been payable upon ifs continuance under this Act; and

  • (b) any of the provisions of this Act, or any regulations made thereunder, being provisions with which the company had failed to comply before it was dissolved, to be complied with.

• (5) The Registrar must publish a notice of the revival of a company under this section in the Gazette.

• (6) If the Registrar refuses to revive a company under this section, he must given written notice of his refusal to the applicant.

• (7) The Registrar may refer an application to revive a company made to him under this section to the court, in which case it must be dealt with by the court as an application to revive the company made under section 205.

• (8) Where a company is revived and restored to the Register under this section, the court, on the application of the Registrar, the company or any person referred to in subsection (1), may give such directions or make such orders as may be necessary or desirable for the purpose of...