Kokiva, In re [2018] PGNC 100; N7179 (14 February 2018)

N7179

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 45 and 46 of 2017

IN THE MATTER OF THE
COMPANIES ACT 1997

AND:

IN THE MATTER OF TWO APPLICATIONS
PURSUANT TO SECTION 379 OF THE
COMPANIES ACT 1997 BY:

HARRIET KOKIVA
in her capacity as the
REGISTRAR OF COMPANIES
Applicant

Waigani: Hartshorn J
2017: December 20^th

2018: February 14^th

Applications by the Registrar of Companies for declarations that two companies be restored to the register of companies – s. 379(1) Companies Act.

Counsel:

Mr. M. Miningi, for the Applicant

ORAL DECISION DELIVERED ON

14^th February, 2018

1. HARTSHORN J: The applicant, the Registrar of Companies, makes applications by way of summons, for declarations that:

a) Mabela No. 88 Limited and Blue Chip No. 15 Limited (two companies) be restored to the register of registered companies pursuant to s. 379 (1) Companies Act 1997 forthwith;

b) The Office of the Registrar of Companies shall cause an investigation into the affairs of the two companies pursuant to and in accordance with Part XXI, Division 2 of the Companies Act 1997 forthwith.

2. I allowed the hearing to proceed in the absence of representation of the former directors and shareholders of the two companies as I was satisfied that this court’s directions issued on 7^th December 2017 had been complied with. Those directions were that the applicant shall give notice to the former directors and shareholders of the two companies by leaving a copy of the summons and letter informing of the time and hearing date of the applications, at the respective registered offices of the two companies of which the Registrar of Companies had notice at the time of their deregistration.

3. The grounds upon which the applicant seeks the declarations are that:

a) A written complaint has been made to the Registrar concerning an alleged fraudulent transfer of shares in the two companies;

b) As a regulating organisation, the companies’ office has an interest to further investigate matters raised in the letter of complaint;

c) It is necessary to reinstate the two companies to initiate an investigating process.

4. Section 379(1) Companies Act 1997, pursuant to which application is made, provides for this court to order that a company that has been removed from the register be restored. What is sought here though are declarations to that effect. I will consider these applications on the basis that an order is sought for the two companies to be restored.

5. Pursuant to s. 379(2)(b) the Registrar of Companies, may make an application under s. 379(1) Companies Act 1997.

6. This Court has a discretion under s. 379(1) Companies Act 1997 to restore a company to the register where it is satisfied as to one or more of six criteria that are listed in s. 379(1).

7. The applicant has not made submissions as to any of these criteria and the evidence relied upon, the affidavit of Malis Mininga, merely mentions the three grounds previously referred to and annexes a copy of a complaint letter, a previous application for reinstatement and print outs from company extracts.

8. It is of note that Mr. Mininga deposes amongst others that, the complainant to the Registrar of Companies is not a prescribed person entitled to apply for restoration of either of the two companies pursuant to s. 379(2) Companies Act 1997.

9. The applicant has not given evidence of any of the six criteria listed in s.379(1)(a) and (b) Companies Act 1997. One of those criteria set out in s.379(1)(b) is that it is just and equitable to restore the company to the register. No submissions were made in that regard and there is insufficient material before the court for it to be able to properly determine how it should exercise its discretion under s. 379(1) Companies Act 1997.

10. Consequently, the relief sought in paragraphs 1 of both summons are refused.

11. As to the relief sought in paragraphs 2 of both summons that the office of the Registrar of Companies shall cause an investigation into the affairs of the two companies pursuant to and in accordance with Part XXI Division 2 Companies Act 1997, as the two companies have not been restored to the register, they remain deregistered.

12. Further, no specific provision is relied upon by the applicant for this court to grant the relief sought in paragraphs 2.

13. Also, a perusal of Part XXI Division 2 Companies Act 1997, does not contain any provision pursuant to which this court may grant the relief that the applicant seeks. Consequently, for the above reasons, the relief sought in paragraphs 2 of both summons are refused.

14. Given the above, both summons issued in MP 45 and 46 of 2017 are dismissed. As there was no representation on behalf of either of the two companies there will be no order as to costs.
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Office of the Registrar of Companies : Lawyers for the Applicant