Representation of Northern Investments (Wrexham) Limited [2015] JRC 207 (07 October 2015)

judgment the deputy bailiff: 1. On 2 nd September, 2015, we made an order on the Representation of AIB Group (UK) Plc ("the Representor") to the effect that the company Northern Investments (Wrexham) Limited ("Northern Investments") should be reinstated and that this Court should issue a letter of request to the High Court of England and Wales for the making of an administration order pursuant to the Insolvency Act 1986 in respect of Northern Investments. At that time we indicated that we would give brief reasons for our decision subsequently. We now do so. The factual background 2. The Representor is a commercial lender and Northern Investments is a company incorporated in Jersey. In 2009 the Representor advanced a facility to Northern Investments in the sum of £2,430,000. Northern Investments defaulted on the repayment under that facility and at the date of the Representation the total outstanding was £2,312,737.41 principal plus accrued interest of £246,062.78.

3. As far as the Representor can ascertain Northern Investments' sole business was the ownership of commercial property in Wrexham, Wales ("the Property") and the Property represents the sole asset of Northern Investments. The value of the Property is estimated in general terms to be £500,000.

4. Northern Investments was dissolved on 1 st October, 2013, pursuant to the provisions of Article 205 of the Companies (Jersey) Law 1991 ("the Law").

5. Accordingly the Representor seeks an order from this Court for the reinstatement of Northern Investments pursuant to Article 213 of the Law in order that it can seek to recover so far as is possible some of the amount due to it. Furthermore, as the assets of the company appear to comprise the Property and nothing more the Representor also seeks an order that this Court issue a letter of request to the High Court in England and Wales asking for the appointment of administrators in respect of Northern Investments pursuant to Schedule B1 of the English Insolvency Act ("the Act").

6. On the date on which the company was dissolved the sole shareholder appears to be Mr André Zolty of 8C Avenue des Champet 1206, Geneva Switzerland in his capacity as the trustee of the Shefa Trust; the registered office of Northern Investments which had previously been at 41 The Parade, St Helier, Jersey had ceased to exist and the company had no registered office; the sole director of the company was Mr Jesse Grant Hester and the secretary of the company was Mr Steven Kelly.

7. The matter was first presented before this Court on 14 th August, 2015, and on that date the Court amongst other things ordered that Mr Zolty should be served out of the jurisdiction by ordinary post and by email; that Mr Hester and Mr Kelly be served by service at First Names Group, 37 Esplanade, St Helier, Jersey; and that Northern Investments be served at International House 41 The Parade with the documents served also being copied to the managing agents of the property in Chester. The Court ordered that those parties should be convened to appear before it on 28 th August, 2015.

8. On 28 th August, 2015, none of the parties appeared and the matter was adjourned to 2 nd September, 2015, at which time only the Representor was present and represented.

9. In support of the application the Court had before it an affidavit of Mr Valentine Michael O'Neill dated 10 th August, 2015, on behalf of the Representor (which amongst other things exhibited the opinion of Philip Gillyon, English counsel), the affidavit of Stuart Arthur Gardner one of the proposed administrators of Northern Investments of 13 th July, 2015, and affidavits from employees of Carey Olsen relating to service. As to the latter point the Court is satisfied that sufficient steps have been taken by the Representor to bring the Representation to the attention of interested parties. Discussion 10. Article 213 of the Companies (Jersey) Law provides, insofar as is relevant, as follows:- "1 Where a company has been dissolved under this law or the Désastre Law, the court may at any time within 10 years of the date of the dissolution, on an application made for the purpose by:- (a) The liquidator of the company; or (b) Any other person appearing to the court to be interested, make an order, on such terms as the court thinks fit, declaring the dissolution to have been void and the court may by order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as maybe as if the company had not been dissolved." 11. The question that we must first consider is whether or not the Representor is a person "appearing to the court to be interested". In our view the Representor is interested in as much as it is the sole or principal creditor of the company which has become dissolved whilst owning assets that might still be available in partial satisfaction of the Representor's claims. This seems to us to be a more than sufficient interest.

12. We had drawn to our attention an order made by the Master on 11 th November, 2013, in a different matter in which the Master ordered the dissolution of a company to be declared void in accordance with Article 213 of the Law where the primary purpose of the setting aside of the dissolution was to permit proceedings to be issued in the English courts against the company and other individuals resident outside of the jurisdiction. This was, in effect, a raising of a dissolution on an ex-parte basis to enable service to take place and thereafter the restoration of the company could be proceeded with on an inter partes basis. Whilst not an authority as such this seems to us to be a pragmatic example of the use of the jurisdiction afforded to the court under Article 213 of the Law and we see no difficulty with making an order setting aside a dissolution for the purposes of taking steps in another jurisdiction without the necessity of establishing a registered office in Jersey or other formal aspects that normally follow from a reinstatement of a company.

13. As to the application to issue a letter of request to the High Court for the appointment of an administrator we were, amongst other cases, referred to the case of In the matter of the Representation of HSBC Bank Plc [2013] JRC 046 in which the court considered a similar application by a creditor of a Jersey company where all of the assets of the company were located in the United Kingdom. We were also shown the example of the very recent decision of this court In the matter of Alard Investments Limited [2015] JRC 137 in which the court again acceded to an application for a letter of request in similar circumstances.

14. It is clear that the Representor, as we have set out above, is an interested party and that, by reason of the fact that the company was dissolved holding assets which would have been available potentially to is as a creditor, the company arguably should not have been struck off.

15. We therefore reinstated the company.

16. In terms of the second application the company was incorporated in Jersey, all of its assets are in England and Wales and English counsel, in this case Philip Gillyon, has confirmed that the English High Court would be minded to accede to any request issued by this court. We are satisfied that the making of an administration order is more appropriate than other forms of insolvency procedure that could theoretically be invoked in the present circumstances.

17. We accordingly issued the letter of request as requested in the Representation. Authorities Insolvency Act 1986. Companies (Jersey) Law 1991. In the matter of the Representation of Al Muthana Investment Company and Others. Representation of HSBC Bank Plc [2013] JRC 046 . In the matter of Alard Investments Limited [2015] JRC 137 . Page Last Updated: 27 Sep 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII