The High Court ordered New Ad Advertising Company Limited restored to the Register of Companies, allowing Vincent Kelly to pursue separate proceedings concerning the company. The restoration order was made on Kelly’s application as a creditor and member; the court did not decide the merits of those separate proceedings.
In a judgment delivered on 14 November 2005, Miss Justice Laffoy rejected George McNulty’s challenge to Kelly’s standing and to the fairness of restoring the company. The company had been struck off in January 1999 for failing to deliver annual returns. Kelly sought restoration so he could continue an application under section 205 of the Companies Act concerning the company.
The court found Kelly was a creditor because two earlier High Court orders required the company to pay his costs, once taxed and ascertained. The judge also noted that Kelly’s membership was not disputed. She said it would be unjust to prevent him from pursuing the remedies sought in the separate proceedings. She expressly declined to assess the merits of that case, which was not before her.
McNulty argued that restoration would be unjust given his age, health, limited means and retirement in France. He also said the company had ceased trading about 12 years earlier, and that company records stored after a Supreme Court appeal were later destroyed in a fire. These were submissions and affidavit evidence; the judgment did not make findings establishing those matters. The judge said she was not satisfied that Alex Wilson, another named notice party, had been properly served.
The court treated the application as one by a creditor under section 12B(6), rather than as an application by a member under section 12B(5). It directed McNulty to deliver the company’s outstanding annual returns to the Registrar of Companies within three months of the judgment. The restoration order takes effect immediately. The court made no direction for outstanding tax returns, noting the company appeared to have been struck off under section 12 rather than section 12A and that the company’s solicitor said trading had ceased around 1993.
The judgment records that the section 205 proceedings had been listed for hearing on 13 December 2005. The restoration decision did not resolve those proceedings.