BVI Company Restoration: Court process and requirements

An application to restore a dissolved company to the Register may be made where:

1. The company was struck off the Register and dissolved following the completion or termination of its liquidation (whether voluntary or involuntary);
2. On the date of dissolution, the company was not carrying on business, or in operation;
3. The purpose of restoration is to:
   1. 1. initiate, continue or discontinue legal proceedings in the name of or against the company; or
      2. make an application for the company’s property that has vested in the Crown bona vacantia to be returned to the company; or

In any other case, or where an application cannot be made to the Registrar of Corporate Affairs (Registrar), the court considers that it is just and fair to restore the company to the Register.

An application has to be made within five years of the date of the company’s dissolution.

The application is made by way of a fixed date claim form together with an affidavit (by the claimant), exhibit and a draft order. The affidavit should set out, inter alia, the purpose of the restoration, and the claimant’s standing to restore the company.

Examples of those who have standing to make an application include:

1. A creditor, former director, former member or former liquidator;
2. A person who, but for the company’s dissolution, would have been in a contractual relationship with the company;
3. A person with a potential legal claim against the company, or its former directors or former members, or in respect of any assets of the company or issued shares; and
4. Any other person who can establish an interest in having the company restored to the Register.

Where the purpose of the restoration is to make an application for the company’s property that has been vested in the Crown bona vacantia to be returned to the company, such application shall not be made unless it is accompanied by, in writing:

1. Consent of the Crown, signified by the Financial Secretary, that the Crown has no objection to the company’s restoration;
2. Response of the Financial Secretary objecting to the company’s restoration; or
3. A declaration of the applicant that the Financial Secretary has not responded to a request for consent to the company’s restoration within seven days after receipt of the request.

Notice of the application must be served on the Registrar, the Financial Secretary and, where the company was a regulated person, the Financial Services Commission.

Upon an application, the court may exercise its discretion and restore the company. The court may:

1. Make an order to restore the company to the Register subject to:
   1. being satisfied that a licensed person has agreed to act as a registered agent (RA) of the company;
   2. the proposed RA making a declaration that the company’s records have been updated or an undertaking that the company’s records will be updated or procured and maintained within 14 days from the date of restoration of the company;
   3. the company filing, or undertaking to file, within 14 days from the date of restoration, copies of its register of members and register of directors; and
   4. the company paying the restoration fee and any outstanding penalties; and
2. Give such directions or make such orders as it considers necessary.

Evidence from the RA should be included in the exhibit to the affidavit.

The restoration will usually not take effect immediately when the court orders the restoration of the company to the Register (subject to the wording of the order in question). There are usually several steps that need to be taken before this can happen, including:

1. Filing a sealed copy of the order with the Registrar; and
2. Paying all outstanding fees and penalties due and payable to the Registrar.

To avoid any delays or complications in the restoration of a company, it is therefore prudent for the claimant to comply with the terms of the order once it has been made by the court.

This article was first published in Asia Business Law Journal. https://law.asia/bvi-company-restoration-court-process-requirements/.

This publication is not intended to be a substitute for specific legal advice or a legal opinion. If you require further advice relating to the matters discussed in this Insight, please contact us.  We would be delighted to assist.

E: Edmond.fund@loebsmith.com