Housemaker Services Ltd v Huw Cole and Another
| Jurisdiction | England & Wales |
| Judge | HHJ Paul Matthews |
| Judgment Date | 07 April 2017 |
| Neutral Citation | [2017] EWHC 753 (Ch) |
| Docket Number | Case No: C31BS361 |
| Court | Chancery Division |
| Date | 07 April 2017 |
[2017] EWHC 753 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol BS1 6GR
HHJ Paul Matthews
(Sitting as a Judge of the High Court)
Case No: C31BS361
Joss Knight (instructed by Pitman Blackstock White) for the Claimant
Thomas Steward (instructed by Temple Bright LLP) for the Defendants
Hearing dates: 3 April 2017
Introduction
This is my judgment on a Part 8 Claim commenced by Claim Form issued on 12 December 2016 in the Bristol District Registry. The Claimant is a limited company, acting by its director Wayne Williams. It gives its address as that of its registered office, which is that of its accountants. The claim seeks a direction from the Court under the Companies Act 2006, s 1028(3), (4), to the effect that the period of 608 days from November 2014 to July 2016, during which it was struck off the register and thus ceased to exist, should be discounted for the purposes of limitation in relation to the Claimant's claim against the Defendants in respect of unpaid invoices delivered for building services.
The Companies Act 2006, s 1028 provides as follows:
"(1) The general effect of administrative restoration to the register is that the company is deemed to have continued in existence as if it had not been dissolved or struck off the register.
(2) The company is not liable to a penalty under section 453 or any corresponding earlier provision (civil penalty for failure to deliver accounts) for a financial year in relation to which the period for filing accounts and reports ended—
(a) after the date of dissolution or striking off, and
(b) before the restoration of the company to the register.
(3) The court may give such directions and make such provision as seems just for placing the company and all other persons in the same position (as nearly as may be) as if the company had not been dissolved or struck off the register.
(4) An application to the court for such directions or provision may be made any time within three years after the date of restoration of the company to the register."
This provision is concerned with cases such as the present, where a company having been struck off or dissolved is restored to the register by administrative action, ie without an order of the court. It is in the same terms, mutatis mutandis, as s 1032, which deals with the case where the court makes an order restoring the company to the register. The case law to which I was referred and which I discuss below is all concerned with s 1032, but it was common ground between the parties that it applied just as much to s 1028 as to s 1032. I proceed on that basis.
Facts
The evidence filed on behalf of the Claimant company was a witness statement of Wayne Williams dated 6 December 2016, together with one exhibit. The evidence filed on behalf of the Defendants was a witness statement of Richard Norwood, the Defendants' solicitor, dated 1 February 2017, to which there are several exhibits (called "appendices"). At the hearing on 3 April 2017, Joss Knight of counsel appeared for the Claimant, and Thomas Steward of counsel appeared for the Defendants.
No application was made for cross-examination of any witness. Accordingly, the evidence given in the filed witness statements, at least so far as consistent one with another, is unchallenged. So far as that evidence is inconsistent, the rule is that the court is not entitled to reject any written evidence as being untrue, unless on the basis of all the evidence before the Court the Court considers that that written evidence is simply incredible: see egLong v Farrer & Co [2004] BPIR 1218, [57]–[61], applied in Shierson v Vlieland-Boddy [2005] 1 WLR 3966, CA, [56], Coyne v DRC Distribution Ltd [2008] EWCA Civ 488, [58]. This is a high threshold to reach. I add that in Mr Steward's skeleton argument, at [49], he characterised Mr Williams's account of how the company came to be dissolved as "simply not believable". However, at the hearing, there were no further submissions on this point. In particular, I was not asked to disregard any of the written evidence on that basis.
In these circumstances, I find the following facts. The company was incorporated in April 2006, but until July 2008 had nominee director and secretary. The company's registered address was care of Barry J Oversby and Company, then of First Floor, 4 Lord's Hill, Coleford, Gloucs GL16 8BD. This firm is the company's accountant. On 1 July 2008, Mr Williams was appointed director and his wife Mrs Sarah Williams was appointed secretary.
Before being appointed director in July 2008, Mr Williams had orally agreed with the defendants to provide building services at two of their properties. He rendered invoices for these services, dated 31 July 2008, 28 August 2008, 22 September 2008 and 14 October 2008. Each of these invoices was stated to be rendered by Mr Williams himself, who was described as "Wayne Williams Bricklayer and General Builder", of 28a Trinity Way, Cinderford, Gloucestershire. This was his home address, where he lived with his wife. The first three of the four invoices gave Mr Williams's VAT number. The fourth did not.
Further invoices were rendered to the defendants in respect of the building services. They were not in evidence themselves, but it was common ground that three such invoices, rendered by the company rather than Mr Williams, remain unpaid. These are an invoice dated 19 July 2010 in the sum of £17,736 odd, an invoice dated 3 May 2011 for about £3287, and an invoice also dated 3 May 2011 in the sum of £1980, a total of about £23,000. The defendants refused to pay the first of these invoices as unjustified in the light of the work completed to date and the quality of that work, which they said required rectification. Mr Williams declined to return to work and issued the two further invoices in May 2011. The defendants did not pay them either.
These three invoices were the subject of further discussions in the following years. The defendants' complaints about the quality of the work done by Mr Williams led them to instruct an expert to report on the quality of the work, and even to issue a claim form in the County Court on 16 June 2014 (as I understand it, to preserve limitation pending an attempt to resolve the dispute between the parties). The defendant solicitors also wrote a long letter dated 22 August 2014, setting out their complaints in detail. The matter was not, however, resolved.
Meanwhile, unhappily, in 2010 Mr and Mrs Williams separated, and Mrs Williams resigned as secretary of the company on 30 April 2010. Mr Williams moved out of the family home at Trinity Way, Cinderford, to a new address in Bream, also in Gloucestershire, in about January 2012.
In 2013 Mr Williams and his accountant Mr Daniel Oversby discussed the affairs of the company and concluded that there was no real justification for the business to continue through a limited company. However, Mr Williams was concerned not to liquidate the company, as it was the company that had issued the unpaid invoices. They therefore agreed that the company would file dormant accounts, and this was done in December 2013 for the year ending March 2013.
There was some evidence that this had happened earlier as well. Entries in the company's filing history state that accounts were filed on 21 January 2008 and 1 October 2008 as "Accounts with account type dormant". This is repeated for 19 December 2013 and then for 18 July 2016. By contrast the entries for 20 August 2009, 28 October 2010, 22 December 2011 and 28 February 2013 read "Accounts with accounts type total exemption small". But these entries were not further elucidated in the evidence before me.
In the papers there was also evidence of an unsatisfied judgment against the company of the Northampton County Court in the small sum of £477, dated August 2013. It is not clear whether this also bore on the decision to become a "dormant" company. The "dormant type" accounts of the company in 2013 showed assets of just £1. There was no mention of the claim for about £23,000.
On 5 August 2014, the Registrar of Companies issued a notice pursuant to section 1000 of the Companies Act 2006 stating that, unless cause was shown to the contrary, the company would be struck off. It was not in evidence what was the cause of the notice's being sent out, but from the Companies House document at page 89 of the bundle, printed on 15 June 2016, showing that the company had been dissolved, but that the last annual return was made up to 3 April 2013, I infer that no annual return up to April 2014 had been received.
This notice was properly served on the company at its registered address, namely the offices of its accountants. It would appear that they did not open the letter, but simply sent it straight on to Mr Williams at what they thought was his home address. However, as already mentioned, Mr Williams had moved out of the home he shared with Mrs Williams in early 2012, and he did not receive the notice. In his evidence, Mr Williams sought to blame his former wife for not forwarding the letter to him. At the same time he gave no evidence of any communications he had with his wife on the subject of items delivered to her home but addressed to the company.
I have heard no evidence from Mrs Williams, and decline to make a finding as to why it was that the notice was not sent on to Mr Williams. But there can be no doubt that the notice was properly served at the company's registered address, and that it was up to Mr Williams to ensure that a system was in place to receive any communications from third parties (including the Registrar of Companies) that were...
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Housemaker Services Ltd and Another v Huw Cole and Another
...Approved HHJ Paul Matthews Introduction 1 On 7 April 2017 I handed down my judgment in this claim, under neutral citation number [2017] EWHC 753 (Ch). The claim was brought under CPR Part 8 for a limitation direction under section 1028 of the Companies Act 2006, in relation to an underlyin......