Conti v Aip Private Bank Ltd
| Jurisdiction | Scotland |
| Judgment Date | 14 January 2000 |
| Docket Number | No 27 |
| Date | 14 January 2000 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Lord Osborne
CompanyRegistrationRestoration of company to registerMember and director of limited company, with authority of company's board, applying for company to be struck off register in 1991Member later seeking restoration of company to register in order to avoid potential personal liability to third party arising out of company's dissolutionWhether member aggrieved by the company having been struck offWhether grievance must arise at time of striking offCompanies Act 1985 (cap 6), sec 653(1) and (2)1
In 1989 Management Strategy Limited became entitled, subject to certain suspensive conditions, to payment of a substantial sum of money by a bank and in terms of a letter to the bank, the company transferred its right to payment to another company. The suspensive conditions were satisfied only after Management Strategy Ltd were struck off the register in July 1991 on the application of the petitioner, who was then a member and director of the company. The application for striking off was made with the approval of the board of directors of Management Strategy Ltd at a meeting which was chaired by the petitioner. The petitioner was subsequently advised by the company to whom Management Strategy Ltd had transferred its right to payment, that if their right to payment were invalid by reason of the dissolution of Management Strategy Ltd (a matter which was then subject to foreign arbitration), they would seek damages from him for their loss of that right. The petitioner thereafter applied to the court for an order in terms of sec 653 restoring Management Strategy Ltd to the register of companies. At a first hearing the Lord Ordinary (Lord Osborne) dismissed the petition on the ground that the petitioner was not a person who was at the time of the striking off, aggrieved by the company's being struck off the register since he had been instrumental in bringing about the striking off. The petitioner reclaimed.
Held (1) that the date when the grievance had to exist under sec 653(1) was the date of the application for restoration of the company to the register and, in determining whether there was a grievance, the court was not necessarily limited to a consideration of the situation as it was when the company was struck off (pp 244I245A, 248F, G); (2) that while it was always a matter of circumstances, a member or creditor could be aggrieved by the company's having been struck off the register even where he had been instrumental in achieving that result (pp 246EF, 248F, G); and (3) that a threat of legal action against the petitioner could in principle constitute the type of grievance with which sec 653(1) was concerned (pp 247HI, 248F, G); and reclaiming motion allowed.
Fabrizio Conti presented a petition to the Court of Session praying for an order in terms of sec 653(2) of the Companies Act 1985 for the restoration of Management Strategy Limited to the register of companies in Scotland. The petition was opposed by AIP Private Bank Limited (formerly Ueberseebank AG) who lodged answers.
The petition called before the Lord Ordinary (Osborne) for a first hearing on the respondents' preliminary plea.
At advising, on 2 October 1998, the Lord Ordinary dismissed the petition [seeConti v Ueberseebank AG 1999 SLT 580].
The petitioner reclaimed.
Cases referred to:
AGA Estate Agencies Ltd (In re) [1986] PCC 358
Court Lodge Development Co Ltd (In re) [1973] 1 WLR 1097
Harrop v Bayley (1856) 25 LJ (MC) (CA) 107
New Timbiqui Gold Mines Ltd (In re) [1961] 1 Ch 319
The cause called before an Extra Division, comprising Lord Prosser, Lord Marnoch and Lord Weir for a hearing in the summar roll.
At advising, on 14 January 2000
LORD PROSSERThis is a petition brought in terms of sec 653 of the Companies Act 1985. The petitioner seeks an order under that section, restoring the name of a company to the Register of Companies in Scotland. The company in question, Management Strategy Limited, was incorporated in Scotland, in 1984, and was struck off the Register, in terms of sec 652(5) of the 1985 Act, in July 1991. By interlocutor of 2 October 1998, the Lord Ordinary sustained two preliminary pleas in law for the respondents and dismissed the petition. The petitioner reclaims.
The circumstances surrounding the striking off of the company, and those giving rise to the request for restoration, are somewhat complicated, and indeed obscure. But the Lord Ordinary's dismissal of the petition, and this reclaiming motion, turn upon a single issue, of limited scope.
Section 653(2) of the 1985 Act empowers the court in certain circumstances to order that a company's name be restored to the Register. In terms of subsec (1), subsec (2) applies if a company or any member or creditor of it feels aggrieved by the company having been struck off the Register. In the present case, the petitioner claims to be a person who is aggrieved by the company having been struck off the Register. The respondents aver that he is not, and their first two pleas in law are pleas seeking dismissal, on the basis of want of title and interest and irrelevancy. It is upon this basis that the Lord Ordinary has dismissed the petition.
Despite the complexities and obscurity which I have mentioned, which are reflected in the petitioner's pleadings, I think that the historical background relied upon by the petitioner can be expressed fairly baldly. In 1989, the company became entitled to payment of a substantial sum of money by a bank, Banque Leu Genve SA, subject to certain suspensive conditions. In terms of a letter to the bank, the company transferred its right to payment, to another company, Kimble International SA. The suspensive conditions were satisfied only after the company had been struck off and dissolved. The company having been dissolved, the bank refuses to make payment to the transferee Kimble, but would apparently make payment if the company were restored to the Register. Restoration is sought in order that this may come about.
The petitioner is an individual, Fabrizio Conti. The respondents are a Swiss company, the name of which was Ueberseebank AG until 15 December 1998, but is now AIP Private Bank Limited. The respondents' interest in this matter, put shortly, is that if the bank can avoid paying the sum of money owed by them to either the company or Kimble, the respondents would have a claim in respect of that sum against the bank. If the bank's debt to the company has not been validly transferred to Kimble, the respondents thus have interest in the original creditor, the company, remaining dead, so that payment cannot be made to it.
The petitioner's involvement is also at one remove. If the transfer of the company's right to Kimble is invalid by reason of the company's dissolution (a matter currently subject to arbitration) then Kimble will have lost the benefit of that transfer, and it is averred that they have intimated to the petitioner that in that...
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