The right to restore a company on the Register of Companies
In Richard Mark Verby (passaport Ingliż numru [omissis] kif debitament rappresentat minn Roberta Giorgio (K.I. nru [omissis]) vs Ir-Reġistratur tal-Kumpanniji, decided by Mr. Justice Ian Spiteri Bailey (Civil Court – Commercial Section) on 10 July 2023, the Court ordered the Registrar of Companies to restore the company Nomad Holdings Limited (C 75924) (the “Company”) on the Register of Companies (the “Register”) of the Malta Business Registry (the “MBR”) in terms of Regulation 9(4) of the Companies Act (Register of Beneficial Owners) Regulations, Subsidiary Legislation 386.19 (the “RBO Regulations”), issued under the Companies Act (Chapter 386 of the Laws of Malta).
Facts of the Case
Roberta Giorgio had been the accountant of the Company since January 2020. In January 2021, she got to know that the Company was deleted from the Register in terms of Regulation 9(3) of the RBO Regulations, after she noticed that the Company’s name did not appear anymore on the website of the MBR. Consequently, she e-mailed the MBR to enquire about this, and was informed that the MBR had sent a letter dated 27 July 2020 to the Company at its registered office address to notify it of its intended action, and that on 14 September 2020, a notice was published in the Times of Malta wherein the Company was indicated as one in a list of companies to be deemed to be dissolved, with the name struck off the Register at the expiration of 3 months from the date of the notice, unless cause is previously shown to the contrary, with the assets of the Company to devolve upon the Government of Malta upon striking off. The accountant was surprised about this, and at the same time she realised that the documents that she had filed electronically (online) at the MBR on 2 April 2020, and as hard copies on 22 April 2020, together with a cheque for Euro 200, had not been processed by the MBR, although the cheque was encashed. These documents comprised of a Shareholder’s Resolution, Memorandum and Articles of Association, Form T, Form K (to appoint Richard Mark Verby as a director of the Company) and Form I (as the Company had been converted into a single member company in the name of Richard Mark Verby), an authenticated copy of the passport of the latter, as well as a Form Q to notify of the change of the Company’s registered office address. It thereby resulted that the MBR letter of 27 July 2020 had never been received by the Company because it was sent at its ‘old’ registered office address. The Applicant therefore felt aggrieved by this action and stated that it intends to take all action required to restore the Company’s name on the Register.
On the other hand, the Respondent claimed that the Company, which had been incorporated on 3 June 2016, had failed to keep up-to-date its beneficial ownership information with the MBR, and had also failed to submit Annual Accounts and Annual Returns in terms of the Companies Act, so much so that the last Annual Return registered was that for 2018, while no Accounts had been filed whatsoever. Moreover, the Company was without a director and secretary since 2 July 2018. According to the Respondent, these failures were enough for the Registrar to presume in terms of Article 325 of the Companies Act, that the Company was not operating, and on this basis therefore proceeded to send the above-mentioned letters. The Respondent had never received any replies to its letters but had just received the aforementioned documentation regarding some corporate changes. According to the Respondent, these documents required some amendments, and several e-mails were in fact sent to the accountant by the relevant desk officer, but which remained not replied to. As a result, the Company’s information on the MBR website could never have been updated. The Company had been left without a registered office for almost 3 years, and so the MBR was correct in sending its letters to the ‘old’ address because in the absence of a Form Q being filed, that was still the current address in the eyes of the law. Moreover, since the Company was without a director, the MBR could not even send its letters to the directors, as per current practice. The Respondent also claimed that since the MBR’s notice was published in the newspaper, the matter had been brought to the public’s attention, and consequently anyone who was involved in the Company or had an interest for it not to be struck off, could have objected. In the absence of such, on 14 December 2020 (3 months after the publication in the newspaper), the MBR uploaded a notice on its website stating that the Company had been struck off the Register. The Respondent expressed that if the Company’s name is to be restored on the Register, the Company submits all the pending documentation and pays the applicable fees and penalties. During one of the sittings, the parties agreed on the pending requirements of the Company.
The Court noted the Applicant’s declaration to do all that was required for the Company to regularise its position. The Court noted the affidavit of Richard Mark Verby in which he explained that the late submissions of the statutory documents were a result of problems with the Company’s previous accountants, and that he had explained the situation to the MBR by means of correspondence. Richard Mark Verby also submitted that he was ready to pay all the Company’s fees due to the MBR. The Court agreed that the Registrar had a valid reason at law to strike off the Company and had acted according to the applicable procedure.
The Court quoted Regulation 9(4) of the RBO Regulations, and found that all the requisites existed for the Company to be restored on the Register in terms of this provision, including the fact that the application was made “before the expiration of five years from the publication of the notice of the striking off”:
“If any member or creditor of the company, or any other person who appears to the Court to have an interest feels aggrieved by the fact that the name of the company has been struck off the register by virtue of the provisions of this regulation, the Court on an application made by the member or creditor or such other person before the expiration of five years from the publication of the notice of the striking off provided for in sub-regulations (2) and (3) may, if satisfied that it is proper that the name of the company be restored to the register, order that such name be restored to the register, and upon an official copy of the order being delivered by the Registrar of the Courts to the Registrar for registration, the company shall be deemed to have continued in existence as if its name had not been struck off; and the Court may by its order give such directions and make such provisions as seem fit for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off. The Registrar shall forthwith proceed to publish a notice in the Gazette or on a website maintained by the Registrar and in a daily newspaper circulating wholly or mainly in Malta that the name of the company has been restored to the register.”
The Court also noted that it had been informed that the Company had indeed regularised its position with the MBR and consequently saw it just and equitable to accept the Applicant’s pleas. As a result, the Court ordered the Registrar to:
- restore the Company’s name on the Register in terms of Regulation 9(4) of the RBO Regulations, within 15 days;
- make all the necessary publications in terms of law for such purpose;
- while ordering that all the costs be borne by the Applicant.
This article was first published in The Malta Independent on 27/09/2023.
Disclaimer: Ganado Advocates is responsible for contributing this law report but was not in any way involved as legal advisor for the parties in the judgement being covered in this law report.
Author: Stephanie J. Coppini (Associate, Ganado Advocates)