The Registrar of Companies v Simultech (Jamaica) Ltd

 
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[2018] JMSC. Civ 76

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

Coram:

A. Nembhard, J (AG.)

CLAIM NO. 2016 HCV 00357

In the Matter of the Registrar of Companies

and

In the Matter of an Application under section 353 (1) of the Companies Act for an Order directing Simultech (Jamaica) Limited to file returns

and

In the Matter of the Companies Act

Between
The Registrar of Companies
Claimant
and
Simultech (Jamaica) Limited
Defendant

Ms. Heather May Sutherland instructed by Ferguson & Sutherland for the Claimant

Mr. Gordon Robinson instructed by Mrs. Winsome Marsh & Co. for the Defendant

Cases referred:

Waldron v. Liege Investments PTY Ltd. [1997] V.R 492 .

Legislation:

Sections 121 and 337 of the Companies Act

Company Law — Duty of company to file annual returns — Whether non-operational company obligated to file annual returns — Section 121 of the Companies Act

IN CHAMBERS
BACKGROUND
1

By way of a Fixed Date Claim Form filed on 28 January 2016, the Claimant, the Registrar of Companies, claims against the Defendant, Simultech (Jamaica) Limited, (Simultech), for an Order that:-

  • (i) The Defendant, Simultech (Jamaica) Limited and its Directors file with the Registrar of Companies within thirty (30) days of the date of the service of the Order herein, Annual Returns, the Company having a share capital, for the years 2006–2013;

  • (ii) Costs to the Claimant to be taxed or agreed.

2

The Fixed Date Claim Form is supported by the Affidavit of Toni-Ann Stewart, which was also filed on 28 January 2016.

3

In her Affidavit, Miss Stewart states, at paragraph three (3), that Simultech was incorporated on 23 September 2005, under the Companies Act, as a company limited by shares. The Certificate of Incorporation in respect of Simultech is exhibited to the said Affidavit as exhibit TS1.

4

The registered office of Simultech is indicated as 7 Waterloo Avenue, Kingston 10, Half Way Tree P.O., in the parish of St. Andrew.

5

Simultech's Director is named as Mr. Christopher J. Armond. Exhibited to Miss Stewart's Affidavit, as exhibit TS3, is the Particulars of Directors/Managers.

6

Miss Stewart testified that, to the best of her knowledge, information and belief, after its incorporation, Simultech commenced carrying on business and that based on her own investigations and observations Simultech is still doing so.

7

In or around August 2014 Miss Stewart indicates that she conducted a search at the Companies Office of Jamaica, which said search revealed that Simultech had failed to file its Annual Returns for the years 2006–2013.

8

On 28 August 2014 Miss Stewart indicates that she served a notice at Simultech's registered office requiring that it files its annual returns for the years 2006–2013.

9

Notwithstanding the service of that notice, the annual returns for the years 2006 – 2013 have not been filed.

THE DEFENDANT'S POSITION
10

Mr. Christopher Armond has filed an affidavit in response. That affidavit was filed on 9 November 2016.

11

In that affidavit Mr. Armond states, at paragraph three (3), that the purpose of incorporating Simultech, with other beneficial shareholders who reside abroad, was to pursue the business of lottery games but that, due to the inability to attract investors, Simultech never commenced business.

12

Mr. Armond further states in his said Affidavit that Simultech has never done any business and that he has never received any notices from the Companies registry regarding Simultech.

ISSUES
13

The issues for resolution by the Court are:-

  • (i) Is Simultech obligated to file annual returns for the period 2006–2013?

  • (ii) Has Simultech been non-operational since its incorporation and was it non-operational during the period 2006–2013?

  • (iii) Is a company obligated to file annual returns despite being non-operational?

THE LAW
14

Section 121 of the Companies Act (the Act) provides:-

“Every company shall deliver to the Registrar successive annual returns each of which is made up to a date not later than the date which is from time to time the return date…”

15

The Act defines a company, at section 2, as meaning:-

“…a company formed and registered under this Act or an existing company.”

16

Section 337 (1) of the Act reads as follows:-

“Where the Registrar has reasonable cause to believe that a company is not carrying on business or in operation, he may send to the company by post a letter inquiring whether the company is carrying on business or in operation.”

(2) If the Registrar does not within one month of sending the letter receive any answer thereto, he shall within fourteen days after the expiration of the month send to the company by post a registered letter referring to the first letter and stating that no answer thereto has been received and that if an answer is not received to the second letter within one month from the date thereof, a notice will be...

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