HSBC Bank PLC v The Registrar of Companies for Northern Ireland, The Crown Solicitor, The Crown Estates Commissioners
| Jurisdiction | Northern Ireland |
| Judge | McBride J |
| Judgment Date | 19 September 2018 |
| Neutral Citation | [2018] NICh 18 |
| Court | Chancery Division (Northern Ireland) |
| Date | 19 September 2018 |
1
Neutral Citation No: [2018] NICh 18
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McB10705
Delivered: 19/09/2018
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
CHANCERY DIVISION
________
2018 No. 47490
IN MATTER OF CARROWREAGH MANAGEMENT COMPANY LIMITED
(COMPANY NO. N1606237)
-and-
IN THE MATTER OF THE COMPANIES ACT 2006
BETWEEN:
HSBC BANK PLC
Applicant;
-and-
THE REGISTRAR OF COMPANIES FOR NORTHERN IRELAND
THE CROWN SOLICITOR
THE CROWN ESTATES COMMISSIONERS
Respondents.
________
McBRIDE J
Introduction
[1] This case involves a consideration of the effect of the arcane and complex
doctrines of escheat and bona vacantia on the property of a company which is
dissolved and then subsequently restored to the company register.
[2] This issue has been considered in two cases in the English High Court,
namely Allied Dunbar Assurance Plc v Fowle [1994] 2 BCLC 197 and Re Five Star
Properties Limited [2015] EWHC 2782 (Ch), [2016] 1 WLR 1104 and in one case in the
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Scottish Court of Session (Inner House) – ELB Securities Limited v Alan Love and
Prestwick Homes Limited [2015] CSIH 67, [2016] SC 77. Although each case considered
essentially the same issue, the Scottish court reached a completely different
conclusion to that reached by the courts in England and Wales. A recent article by
Burgess Salmon LLP, dated 21 January 2016 and entitled, “Bona Vacantia, Escheat
and Company Restoration – A Grand Mess” is an apt title to describe the difficulties
which now exist in this area.
[3] In light of the diversity of approach it is now necessary for this court to
determine which line of authority should be followed in this jurisdiction.
Background facts
[4] Carrowreagh Management Company Limited (“the company”) was
incorporated on 18 February 2011. On 11 November 2011 the company was
registered as the freehold owner of the lands comprised in Folio DN183771
County Down (“the lands”). The lands comprise Carrowreagh Business Park,
Carrowreagh, Dundonald, Belfast, County Down. The lands were burdened with a
number of leases and in particular part of the lands were burdened by a lease
entered into on 22 November 2004 between Glenfern Investments Limited and
Richard Agnew and Stephen Crowe, (“the lease”). The lease contains a number of
onerous covenants in respect of decorating, forfeiture and non-assignment. The
lands held under the lease are now comprised in Folio DN134233L County Down
and are otherwise known as Unit 2B/3, Carrowreagh Business Park.
[5] The company was dissolved following voluntary striking from the register on
15 June 2012. On 21 April 2016 the lands came to the notice of the Treasury Solicitor
and on 1 August 2016 he disclaimed the lands.
[6] The applicant is a chargee of the lands held under the lease dated
22 November 2004.
[7] The applicant intends to bring proceedings before the Lands Tribunal under
Article 5 of the Property (Northern Ireland) Order 1978 to vary the onerous
covenants contained in the lease. To bring these proceedings the applicant requires
the company to be restored to the register.
[8] By summons dated 11 May 2018 the applicant sought an order pursuant to
Section 1029 of the Companies Act 2006 restoring the company to the register. By
letter dated 16 May 2018 the Registrar of Companies for Northern Ireland indicated
that he had no objection to this application. By Order dated 25 May 2018 I ordered
that the company be restored to the Register of Companies.
[9] Solicitors acting for the applicant entered into correspondence with the
solicitors for The Crown Estates Commissioners (“the third respondent”) to inquire
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