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BVI Business Companies Act, 2004

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Division 3 – Striking Off and Dissolution

212. In this Division, “Register” means the Register of Companies.

213. (1) The Registrar may strike the name of a company off the Register if

(a) the company

(i) fails to appoint a registered agent under section 93(4) or 94(4),

or

(ii) fails to file any return, notice or document required to be filed under this Act;

(b) he is satisfied that

(i) the company has ceased to carry on business, or

(ii) the company is carrying on business for which a licence, permit or authority is required under the laws of the Virgin Islands without having such licence, permit or authority; or

(c) the company fails to pay its annual fee or any late payment penalty by the due date.

(2) If the Registrar is of the opinion that the company is trading or has property or that there is some other reason why the company should not be struck off the Register, he may, instead of striking the company from the Register, refer the company to the Commission for investigation.

(3) Before striking a company off the Register on the grounds specified in subsection (1)(a) or (1)(b), the Registrar shall

(a) send the company a notice stating that, unless the company shows cause to the contrary, it will be struck from the Register on a date specified in the notice which shall be no less than thirty days after the date of the notice; and

(b) publish a notice of his intention to strike the company off the Register in the Gazette.

(4) After the expiration of the time specified in the notice, unless the company has shown cause to the contrary, the Registrar may strike the name of the company off the Register.

(5) The Registrar shall publish a notice of the striking of a company from the Register in the Gazette.

(6) The striking of a company off the Register is effective from the date of the notice published in the Gazette.

(7) The striking off of a company shall not be affected by any failure on the part of the Registrar to serve a notice on the registered agent or to publish a notice in the Gazette under subsection (3).

214. (1) Any person who is aggrieved by the striking of a company off the Register under section 213 may, within ninety days of the date of the notice published in the Gazette, appeal to the Court.

(2) Notice of an appeal to the Court under subsection (1) shall be served on the Registrar who shall be entitled to appear and be heard at the hearing of the appeal.

(3) The Registrar may, pending an appeal under subsection (1) of any person aggrieved by the striking of a company off the Register, suspend the operation of the striking off upon such terms as he considers appropriate, pending the determination of the appeal.

215. (1) Where a company has been struck off the Register, the company and the directors, members and any liquidator or receiver thereof, may not

(a) commence legal proceedings, carry on any business or in any way deal with the assets of the company;

(b) defend any legal proceedings, make any claim or claim any right for, or in the name of, the company; or

(c) act in any way with respect to the affairs of the company.

(2) Notwithstanding subsection (1), where a company has been struck off the Register, the company, or a director, member, liquidator or receiver thereof, may

(a) make application for restoration of the company to the Register;

(b) continue to defend proceedings that were commenced against the company prior to the date of the striking-off; and

(c) continue to carry on legal proceedings that were instituted on behalf of the company prior to the date of striking-off.

(3) The fact that a company is struck off the Register does not prevent

(a) the company from incurring liabilities; or

(b) any creditor from making a claim against the company and pursuing the claim through to judgement or execution; and does not affect the liability of any of its members, directors, officers or agents.

(4) In this section and section 217, “liquidator” means a voluntary liquidator and an Insolvency Act liquidator.

216. Where a company that has been struck off the Register under section 213 remains struck off continuously for a period of ten years, it is dissolved with effect from the last day of that period.

217. (1) Where a company has been struck off the Register, but not dissolved, the Registrar may, upon receipt of an application in the approved form and upon payment of the restoration fee and all outstanding fees and penalties, restore the company to the Register and issue a certificate of restoration to the Register.

(2) Where the company has been struck off the Register under section 213(1)(a)(i), the Registrar shall not restore the company to the Register unless (a) he is satisfied that a licensed person has agreed to act as registered agent of the company; and

(b) he is satisfied that it would be fair and reasonable for the name of the company to be restored to the Register;

(3) An application to restore a company to the Register under subsection (1) may be made by the company, or a creditor, member or liquidator of the company and shall be made within ten years of the date of the notice published in the Gazette under section 213(5).

(4) The company, or a creditor, a member or a liquidator thereof, may, within ninety days, appeal to the Court from a refusal of the Registrar to restore the company to the Register and, if the Court is satisfied that it would be just for the company to be restored to the register, the Court may direct the Registrar to do so upon such terms and conditions as it may consider appropriate.

(5) Notice of an appeal to the Judge in chambers under subsection (4) shall be served on the Registrar who shall be entitled to appear and be heard at the hearing of the appeal.

(6) Where a company is restored to the Register under this section, the company is deemed never to have been struck off the Register.

218. (1) Where a company has been dissolved, application may be made to the Court in accordance with subsection (1A) to declare the dissolution of the company void and restore the company to the Register.

(1A) An application under subsection (1)

(a) may be made by the company or by a creditor, member or liquidator of the company; and

(b) shall be made within ten years of the date that the company was dissolved.

(2) On an application under subsection (1), the Court may declare the dissolution of the company void and restore the company to the Register subject to such conditions as it considers just.

(3) Where a company is restored to the Register under this section, the company is deemed never to have been dissolved or struck off the Register.

219. (1) Where a company has been struck off the Register, the Registrar may apply to the Court for the appointment of the Official Receiver or an eligible insolvency practitioner as liquidator of the company.

(2) Where the Court makes an order under subsection (1),

(a) the company is restored to the Register; and

(b) the liquidator is deemed to have been appointed under section 159 of the Insolvency Act.

220. (1) Subject to subsection (2), any property of a company that has not been disposed of at the date of the company’s dissolution vests in the Crown.

(2) When a company is restored to the Register, any property, other than money, that was vested in the Crown under subsection (1) on the dissolution of the company and that has not been disposed of must be returned to the company upon its restoration to the Register.

(3) The company is entitled to be paid out of the Consolidated Fund,

(a) any money received by the Crown under subsection (1) in respect of the company; and

(b) if property, other than money, vested in the Crown under subsection

(1) in respect of the company and that property has been disposed of, an amount equal to the lesser of

(i) the value of any such property at the date it vested in the Crown, and

(ii) the amount realized by the Crown by the disposition of that property.

221. (1) In this section, “onerous property” means

(a) an unprofitable contract; or

(b) property of the company that is unsaleable, or not readily saleable, or that may give rise to a liability to pay money or perform an onerous act.

(2) Subject to subsection (3), the Minister may, by notice in writing published in the Gazette, disclaim the Crown’s title to onerous property which vests in the Crown under section 220.

(3) A statement in a notice disclaiming property under this section that the vesting of the property in the Crown first came to the notice of the Minister on a specified date shall, in the absence of proof to the contrary, be evidence of the fact stated.

(4) Unless the Court, on the application of the Minister, orders otherwise, the Minister is not entitled to disclaim property unless the property is disclaimed

(a) within twelve months of the date upon which the vesting of the property under section 220 came to the notice of the Minister; or

(b) if any person interested in the property gives notice in writing to the Minister requiring him to decide whether he will or will not disclaim the property, within three months of the date upon which he received the notice; whichever occurs first.

(5) Property disclaimed by the Minister under this section is deemed not to have vested in the Crown under section 220.

(6) A disclaimer under this section

(a) operates so as to determine, with effect from immediately prior to the dissolution of the company, the rights, interests and liabilities of the company in or in respect of the property disclaimed; and

(b) does not, except so far as is necessary to release the company from liability, affect the rights or liabilities of any other person.

(7) A person suffering loss or damage as a result of a disclaimer under this section

(a) shall be treated as a creditor of the company for the amount of the loss or damage, taking into account the effect of any order made by the Court under subsection (8); and

(b) may apply to the Court for an order that the disclaimed property be delivered to or vested in that person.

(8) The Court may, on an application made under subsection (7)(b), make an order under that paragraph if it is satisfied that it is just for the disclaimed property to be delivered to or vested in the applicant.