The Court will revive a company which would have been struck off within five (5) years only for exceptional reasons. This was held in a judgment delivered by Mr Justice Ian Spiteri Bailey presiding over the Civil Court in its commercial jurisdiction. The case is between Anthony Dalli and Alfred Dalli vs Reġistratur tal-Kumpaniji and decided on 10 July 2023.
The Dallis asked the Court to revive Welcome Garage Dalli Bros Limited which was struck off the register and to reopen the liquidation of the company. They also asked the Court to order the liquidator to collect monies owed to the company and after to definitively strike off the company.
The Plaintiffs explained that the company was owned by them and their third brother who passed away. The company was incorporated in 1991 and struck off in July 2022 following a voluntary liquidation. They discovered that there were over €226,000 missing from their accounts, but this was not taken into consideration by the liquidator.
The Registrar of Companies filed a statement of defence, in which it held that it left this issue up to the Court. It explained that the company sent all the documents in accordance to Article 401 of the Companies Act for the company to be liquidated and struck off. When the list of companies to be struck off were published nobody objected. Furthermore, once there was a voluntary liquidation the responsibility of the liquidator is higher, since he or she has to make sure that liquidation proceedings were done well. Furthermore, the registrar held the Court should give clear directions.
The Court held that this action was filed in terms of Article 300A of the Companies Act. In his affidavit, Anthony Dalli explained that the company was not carrying out any business for some time and therefore, the liquidation proceedings started. The machinery was divided between the three brothers, who were shareholders of the company. In 2022, they had a meeting with the bank and were informed that their account was subject to fraud perpetrated by a bank employee. These funds were to be refunded, but the company was liquidated.
The Court held that the Registrar’s position is correct in that where there is a liquidation of a company, all the assets and liabilities must be included in the process and must be done before the documentation is present for cancellation.
Article 300A of the Companies Act reads:
“300A. (1) Where in the course of the winding up of a company the liquidator has not taken into account any asset of the company, and the name of the company has been struck off the register, any interested person may, by an application, request the Court to order the rectification of the scheme of distribution, and the Court may, where it considers it appropriate, order such rectification under those terms and conditions it may deem fit.
(2) Where a company has made a distribution to its shareholders pursuant to a scheme of distribution and the name of such company has been struck off the register, any creditor whose claim against the company has not been satisfied may, by an application, claim what is due to him from the shareholders of the company pro rata to the amount received by the shareholders upon the distribution, and the Court may, where it considers it appropriate, order that payments be made by the shareholders to such creditor under those terms and conditions it may deem fit:
Provided that in no case shall a shareholder be required to contribute an amount exceeding that received by him upon distribution.
(3) No application may be made under this article after the expiration of five years from the date on which the name of the company has been struck off the register.”
This article provides when the assets have not been calculated correctly and the company would have been struck off from the registry. This article of law is not frequently used, but there is nothing stopping the Court from ordering the revival of the company in these circumstances. The Court quoted from Edwin Zammit vs X, decided on 29 October 2020.
In this case, an immoveable property was not transferred before the company was struck off. The Court then held in such circumstances this action has to take place and the court case has to be instituted. The Court also referred to Avukat Jean-Pie Gauci Maistre vs Ir-Reġistratur tal-Kumpaniji et noe decided on 28 March 2019, which held that this action should be instituted in exceptional circumstances.
The Court then moved to uphold the Plaintiff’s claims and ordered that Welcome Garage Dalli Bros Limited be registered once again and ordered that the funds be transferred to the shareholders.
Av. Malcolm Mifsud
Partner
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