In Yeung Kwok Mung v The Attorney General and the Financial Services Commission, BVIHCM 2011/0002 and Dedyson Enterprises Limited v Registrar of Corporate Affairs, BVIHCM 2011/0008, the BVI High Court Commercial Division addressed the principles applying to restoration applications under section 43 of the BVI Business Companies Act (the “BC Act”). The key principles emerge from the decisions:

  • A company in voluntary liquidation before dissolution will not be restored to liquidation following restoration, but instead will be put back in good standing;  
  • A restoration application is granted only in very limited circumstances:  
    • where an application to restore is made by or in relation to a company whose liquidation has previously been reported to the Registrar as completed, it will generally be difficult to see why the application should be granted, otherwise than for the purpose of (i) enabling newly discovered assets to be distributed by the company or (ii) claims to be made against it which had not previously been made;  
    • other than in the most exceptional circumstances, there could be no good grounds for avoiding the dissolution of a company that has been wound up simply so that its owners could resume carrying on business through it as if nothing had happened;  
  • The proper party to name in a restoration application is the Registrar of Companies. It would be the party bound by any restoration order. However, the FSC is right to attend and appear when the Registrar is served);  
  • The Registrar will be awarded costs due to the public interest requirement for him to be in attendance by his counsel at the hearing;  
  • The Attorney-General should not be named as a party unless a specific issue as to bona vacantia (ownerless goods going to the Crown by default) arises;  
  • Where the Attorney-General is named as a party and attends, there being no issue as between them and the applicant, the Attorney-General will not be awarded his costs.