It is becoming more and more common that Companies are being dissolved and then, some time later, we get a call from a former shareholder having suddenly remembered that in fact the company owned a fairly significant asset and could they please have the asset transferred to them. Unfortunately it’s not that simple.
If the asset was genuinely held by the company in question then at the point that the company was dissolved the asset will revert to the crown (bona vacantia).
How to restore a company to the register?
The first step is to consider the value of the asset and whether or not it is worth the time and expense of negotiating with the Treasury Solicitor (who acts on behalf of the crown, in London anyway) and / or restoring the company to the Register of Companies.
The Registrar will only restore a company if he receives a court order. One thing to consider if you do intend to go down this route is that once a company is restored its as if it has never been struck off, so any documents that are late in being filed such as accounts must now be filed and there is a risk of being penalised for any late filings.
Who can apply to restore a company to the register?
Only certain parties are eligible to apply to the court for a restoration, however this class of persons is fairly wide, these include any former director, member, creditor or liquidator. In addition any party who had a contractual relationship with the company or who had a potential legal claim against the company, a manager or trustee of the Company’s former employee’s pension fund and any person that the court believes has an interest in the matter.
Time limits for restoration application
Unless you are applying to restore the Company as a result of a personal injury, then, If the Company was struck off under the provisions of the Companies Act 2006 you have six years from the date of dissolution to make your application. However if a company was struck off under section 652 or 652A of the Companies Act 1985 an application may be made at any time before:
a) 1 October 2015 (six years after commencement of these provisions of the Companies Act 2006); or b) the expiration of the period of 20 years from publication in the London Gazette of notice under the relevant section
whichever occurs first.
When you file your claim form (part 8) with the court you need to provide specific evidence to enable the court to make their decision as to whether or not to grant the order. The person making the application must also submit a witness statement and a copy of this together with the claim form must be served on the Registrar of Companies.
The witness statement should give full particulars of the person giving the statement, the date of incorporation of the Company and under what act, a copy of its articles of association and certificate of incorporation, registered office address, and a number of other documents. You will also need to explain why it was struck off in the first place and why it should be restored.
Cost of restoring a company
As well as the court costs you must also cover your solicitors fees and those of the Treasury Solicitor and comply with specific undertakings which the Registrar will require (such as applying to have the company struck off within a specified period of time for example once the asset has been transferred out).
It can be a fairly lengthy process but if you have no other way to recover an asset, it may be your only option.
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