Jersey Unreported Judgments

Companies - reasons for granting the prayer in the representation

[2019]JRC177

Royal Court

(Samedi)

13 September 2019

Before     :

J. A. Clyde-Smith O.B.E, Commissioner sitting alone

 

IN THE MATTER OF THE REPRESENTATION OF 2 THE FORUM LIMITED (FORMERLY 26 ESPLANADE (JERSEY) LIMITED) - COMPANY REGISTRATION NO. 127728

AND IN THE MATTER OF ARTICLE 214 OF THE COMPANIES (JERSEY) LAW 1991

Advocate C. J. Swart for the Representor.

The Registrar of Companies appeared in person.

judgment

the COMMISSIONER:

1.        The Court declined, initially, to authorise the Judicial Greffier to register in the Public Registry an Act of Continuance of the representor into this jurisdiction, pursuant to Article 214 of the Companies (Jersey) Law 1991 ("the Companies Law"), because it was unclear from the documents before it whether the shareholders had ever approved its change of name and constitution upon continuance into this jurisdiction.  It adjourned the application and convened the Registrar of Companies ("the Registrar").

2.        The brief facts are that the representor was incorporated in Guernsey on 25^th June, 2004, under the name of 26 Esplanade (Jersey) Limited, company number 42073.  It acquired and is the owner of commercial property in Jersey known as 2 The Forum, Commercial Buildings, Grenville Street in the Parish of St Helier and it is shown in the Public Registry as the owner of that property.

3.        In 2018, it was proposed that the representor should be continued into Jersey, but initial inquiries with the Companies Registry showed that it could not continue under the name 26 Esplanade (Jersey) Limited, because that name was too similar to an existing company.  Accordingly, the name 2 The Forum Limited was approved and reserved.

4.        The process of continuance was commenced at a meeting of the directors of the representor on 1^st August 2018, in which the following document, inter alia, was tabled:-

"A draft special resolution approving removal of the Company from the Register in its migration to Jersey and approving the adopting of new memorandum and articles of the Company in the form attached ("the new articles") to be used upon the Company's migration to Jersey (by special resolution)".

5.        It was resolved by the directors that it be recommended to the members of the representor that it be removed from the Register in Guernsey for the purpose of becoming registered as a company under the laws of Jersey, and that the members pass the special resolution as tabled.  The meeting was then adjourned for the special resolution to be signed.  It was signed by the sole shareholder, but it was in these terms:-

"SPECIAL RESOLUTION:

That, pursuant to section 88 of the Law, the Company be removed from the Register of Companies in Guernsey for the purpose of becoming registered as a company under the laws of Jersey."

It can be seen, therefore, that the special resolution did not refer to the new name of the company or to its new memorandum and articles of association, neither of which had therefore been approved by the sole shareholder to take effect on migration to Jersey.

6.        On 11^th September, 2018, Ferbrache & Farrell, a firm of advocates in Guernsey, signed an opinion addressed to the Registrar confirming that the representor was in good standing with the Registrar in Guernsey and that it had complied with the requirements of Guernsey law and its constitution to apply for authorisation to effect its removal as a company incorporated under Guernsey law from the Guernsey Registry in order to seek continuance as a company under the Laws of Jersey. 

7.        In its application for continuance within Jersey, the representor filed by way of its Articles of Continuance as required by Article 127(k)(1)(b) of the Companies Law, a new memorandum and articles of association under the name of 2 The Forum Limited, which were certified as having been approved at a meeting of the directors held on 18^th September, 2019.

8.        On 19^th November, 2018, the Registrar issued a Certificate of Continuance, which is in these terms:-

"CERTIFICATE OF CONTINUANCE OF A LIMITED COMPANY

Registered Number 127718

I hereby certify that pursuant to Article 127(0) of the Companies (Jersey) Law 1991, as amended, that all requirements of the said Law in respect of Continuance within the Island of Jersey have been satisfied and that

2 THE FORUM LIMITED registration number 127728

Originally incorporated in the jurisdiction of Guernsey has today been incorporated in Jersey as a private company

 

Dated this 19 November 2018

Julian Lamb

For and on behalf of the Registrar"

9.        As can be seen, the certificate did not state the name and company number under which the representor had been incorporated in Guernsey, so as to tie the two names together.

10.      On 27th November 2018, the Registrar of the Guernsey Registry issued a Certificate of Migration in these terms:-

"CERTIFICATE OF MIGRATION

I hereby certify that pursuant to section 98 of the Companies (Guernsey) Law, 2008 that

Company Name:                       26 Esplanade (Jersey) Limited

Registration Number:                42073

Migrated from Guernsey and its name was removed from the register of Companies on Tuesday, November 27, 2018."

We note that this did not state where the representor had migrated to, which would be of assistance to anyone trying to ascertain from a search of the Guernsey Registry where the representor was now registered.

11.      The upshot was that the representor had left the jurisdiction of Guernsey, with one name and constitution, and emerged in this jurisdiction with an entirely new name and constitution, which had not been approved by the shareholder by way of special resolution.  Furthermore, there was nothing in the certificates issued in the two jurisdictions to connect the two names. 

12.      These issues were addressed in this way:-

(i)        The Registrar issued a new Certificate of Continuance, in which these words have been added:-

"Originally incorporated in the jurisdiction of Guernsey having the name 26 ESPLANADE (JERSEY) LIMITED and registration number 42073 has today been incorporated in Jersey as a private company."

(ii)       The shareholder passed a special resolution on 10^th July 2019, approving and ratifying both the change of name and the new memorandum and articles of association.

13.      None of these defects in the process affected the validity of the continuation of the representor into Jersey and this pursuant to Article 127(P) of the Companies Law, which is in these terms:-

"127P  Effect of issue of certificate of continuance within Jersey

(1)       Upon the issue of the certificate of continuance by the registrar -

(a)        the body corporate becomes a company incorporated under this Law, to which this Law applies accordingly; and

(b)        the memorandum and articles, or the instrument constitution or defining the constitution of the body corporate, as amended in accordance with its articles of continuance, become the memorandum and articles of the continued company.

(2)       When a body corporate is continued as a company incorporated under this Law -

(a)        all property and rights to which the body corporate was entitled immediately before the certificate of continuance is issued are the property and rights of the company;

(b)        the company is subject to all criminal and civil liabilities, and all contracts, debts and other obligations, to which the body corporate was subject immediately before the certificate of continuance is issued; and

(c)       all actions and other legal proceedings which, immediately before the issue of the certificate of continuance, were pending by or against the body corporate may be continued by or against the company.

(3)       A certificate of continuance is conclusive evidence of the following matters -

(a)       that the company is incorporated under this Law;

(b)       that the requirements of this Law have been complied with in respect of -

(i)         the continuance of the company under this Law,

(ii)         all matters precedent to its continuance as such a company, and

(iii)        all matters incidental to its continuance as such a company; and

(c)       If the certificate states that it is a public company or a private company, that it is such a company."

14.      The Court was therefore content to grant the prayer in the representation, namely that the Judicial Greffier be authorised to update the Public Registry pursuant to Article 214 of the Companies Law, which is in these terms:-

"214    Registration in the Public Registry

The Judicial Greffier shall register in the Public Registry all acts and orders affecting property made under this Law"

15.      In the view of the Court, it was not actually necessary to seek an order for the registration of the Certificate of Continuance in the Public Registry because, pursuant to Article 127P(2)(a), the Certificate of Continuance constitutes an order affecting immovable property, and accordingly, the Judicial Greffier does not require the authority of the Court to register it in the Public Registry.

Authorities

Companies (Jersey) Law 1991.