Re Mitchell Keil & Associates [1998] FJHC 46; Hbj0003.1998s (8 April 1998)

Fiji Islands - Re: Mitchell Keil & Associates - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW HBJ 3 OF 1998S

RE: MITCHELL KEIL AND ASSOCIATES

F.G. Keil for thlicaplicants
L. Agbejute for the Respondent

t>DECISION

This is an application for leave to move for Judicial Review of a decision of the Registrar of Companies dated 16 February 1998.

The Applicants are a firm of Solicitors who wished to incorporate a number of "shelf companies". In accordance with the requirements of the Companies Act (Cap. 247) the necessary papers were lodged with the Registrar on 3rd February 1998. The papers included duly executed and stamped copies of the Memorandum and Articles of each of the new Companies.

On 16 February 1998 the Registrar wrote to the Applicants in effect refusing to accept the papers in the form which they had been lodged with him. He pointed out that paragraphs 5 of the Memoranda and paragraphs 4 of the Articles both omitted the word "share" and should have read:

"The share capital of the Company is $10,000 (ten thousand Dollars) divided into 10,000 shares of one Dollar each". (emphasis added)

In support of the Application for leave Mr Keil pointed out that his firm had been registering companies for over 20 years without the Registrar having ever raised this objection before. He also stressed that it was not merely a question of amending the documents which were already stamped.

The forms of Memoranda and Articles of Association are set out in tables B, C, D and E of the Companies Act and Sections 16 and 17 of the Act provide that Memoranda and Articles delivered to the Registrar for registration:

"shall be in accordance with the forms set out in tables B, C, D, and E .... or as near thereto as circumstances admit".

In table B, Memorandum of Association, paragraph 5 reads:

"the share capital of the company is $2,000 divided into 1,000 shares of $2 each" (emphasis added).

Tables D and E contain similarly worded paragraphs.

In these circumstances I am of the opinion that the Act requires that wherever possible the word "share" appear where it appears in the tables and I am not satisfied that the High Court has any power to sanction a derogation from this requirement. It must follow that in my opinion the Applicants have no prospects of successfully challenging the Registrar's decision by way of Judicial Review and accordingly leave must be refused.

During the course of legal submissions I formed the impression that there might be scope for the encouragement of a slightly more cooperative attitude on the part of some of the Registrar's staff. A spirit of constructive goodwill is generally a most effective antidote to litigation.

M. D. Scott
JUDGE

8 April 1998