THE REGISTERED OFFICE OF A COMPANY: OH WHERE, OH WHERE CAN IT BE?
| Citation | (1992) 4 SAcLJ 193 |
| Published date | 01 December 1992 |
| Date | 01 December 1992 |
Oh where, oh where has my little dog gone?
Oh where, oh where can it be?
With its hair cut short and its tail quite long,
Oh where, oh where can it be?
Some of us may vaguely remember a doggerel like the one above being read or sung to us when we were yet children and oblivious to anything remotely relevant to the law. While this writer will not accept any bets on the accuracy of the words to the doggerel however favourable the odds may be, this writer is certain that many a lawyer seeking to serve a statutory demand on an evasive corporate debtor’s registered office must have felt, at one time or another, like the owner of the lost dog. Any lawyer with a decent amount of experience would know that one of the quickest ways to determine the registered office of a company is to obtain a Registry of Companies and Businesses Instant Information (Business Profile) print-out from the telex machine in the office. This is often simply referred to as an “instant information search” or a “telex search”. Unfortunately, as far as the law is concerned, the location of the registered office may not be as clear as it would appear on the print-out from the search. The obvious question then that springs to mind, is to what extent may one rely on the address revealed in such a search to be the registered office of a company? This would depend on when the registered office of a company is deemed to be changed in the eyes of the law. The answer to this question will in turn determine the location of the company’s effective registered office. As this article will show, there is still some scope for argument as far as this is concerned. Even assuming that there is no controversy as to the location of a company’s registered office, the next question that would have to be considered is what the legal consequences would be if a document is served on a company at a place which is mistakenly believed to be the registered office of the company.
This article seeks to examine these legal issues by considering the existing common law and statutory pronouncements as well as the policy considerations involved. The recent Singapore High Court decision of Re Shangri-la Cruise Pte. Ltd.1 will first be examined and analysed. Thereafter, a wider perspective of these problems will be taken and related issues not raised by the facts of Re Shangri-la Cruise Pte. Ltd. will be discussed.
The first of the questions raised above was brought before the Singapore High Court in the case of Re Shangri-la Cruise Pte. Ltd.2 where it arose in the context of a statutory demand served under section 254(2)(a) of the Companies Act. In that case, a petition to wind up Shangri-la Cruise Pte. Ltd., a Singapore-incorporated company (“the Company”), was presented in the Singapore High Court by a Hong Kong-incorporated company by the name of Joy Win Development Ltd. (“the Petitioner”). The winding up petition was founded upon section 254(l)(e) of the Companies Act, in other words, on the ground that the Company was unable to pay its debts. For the purpose of proving that the Company was unable to pay its debts, the Petitioner sought to call in aid of their cause, the “deeming” provision in section 254(2)(a) of the Companies Act. This provides that a company is to be deemed to be unable to pay its debts if the company’s creditor to whom it is indebted in a sum exceeding $2000 then due, has served on the company, by leaving at its registered office, a demand (commonly referred to as the “statutory demand”) under his hand or under the hand of his duly authorised agent requiring the company to pay the sum so due, and the company has for 3 weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor.
The Petitioner in this case had on 13 February 1990, attempted to serve the statutory demand on the premises reflected as the registered office of the Company according to an instant information search conducted by the Petitioner’s solicitors. However, when the solicitors’ service clerk arrived at the premises, he was told by the occupiers that the Company was no longer situated there. The next day, the Petitioner’s solicitors wrote to the Registrar of Companies to seek her confirmation of the Company’s registered office. On 22 February, the Registrar in reply, confirmed by letter that the Company’s registered office was according to her records, as reflected in the instant information search carried out by the Petitioner’s solicitors. With this confirmation from the Registrar, the service clerk of the Petitioner’s solicitors called again at the same address on 1 March 1990 and managed to persuade the existing occupants to allow him to leave the statutory demand at the premises for the sake of compliance with section 254(2)(a) of the Companies Act 1990sequently, on 5 March 1990, the Company lodged with the Registrar a notice of change of its registered office.
When the petition came before the High Court, the Official Receiver
objected to a winding up order being made against the Company on the ground that the papers were not in order, arguing that the statutory demand had not been served at the registered office of the Company. In the light of this revelation, the Petitioner managed to obtain the leave of the court to amend the petition to reflect the new registered office of the Company. The petition was then served on the Company at its new registered office on 31 July 1990. The court was then called upon to rule on the question whether the statutory demand had been properly served for the purposes of section 254(2)(a) of the Companies Act.
His Honour, Yong Pung How J. (as he then was), held that until a notice of change of registered office was lodged with the Registrar of Companies, there could be no doubt that the registered office of a company remained unchanged for the purposes of the Companies Act, even though the company may in fact have moved it to another address. His decision was based on both an analysis of the Companies Act and case law from other jurisdictions. He first pointed out that under the Companies Act, “a registered office means an office which has been registered with the registrar” under section 4 of the Act. (To be sure, this was correct although somewhat misleading in the way it was phrased as the Companies Act provides no definition for the term “registered office” but defines “registered” to mean “registered under the Act or any corresponding previous enactment”.) In addition Yong J. pointed out that section 143(1) of the Companies Act required a company to lodge a notice with the Registrar in respect of any change in the particulars of its registered office (which under section 143(1A) would include the address of the registered office) within 14 days of the change. He therefore reasoned that before a notice of such change had been lodged with the Registrar, any purported change of a company’s registered office would not be effective. Precedent for this proposition was found in the following statement of Lord President Clyde in the case of Ross v. Invergordon Distillers Ltd.3:
“In my view, there is not a registered office within the meaning of the Companies Act until, not merely have the directors resolved where the office is to be, but the statutory notice to the registrar has been given. It is then, and then only, that the company’s registered office is “registered” or, if a change has been made, is changed. Till intimation of the change, the creditors and others dealing with the company are entitled to assume that the registered office remains where it originally was and it is only when the necessary steps have been taken to inform the registrar of the change, so that he may record the same in terms of section 107, that the original registered office ceases to be the registered office of the company.”
Also cited in Yong J.’s judgment was the case of Peter Kurts (Developments) Pty. Ltd. v. Glenbar Homes Pte. Ltd.4, a decision of the Supreme Court of Queensland, Australia which had applied Ross v. Invergordon Distillers Ltd. Yong J. therefore held the service of the statutory demand to be valid.
This ruling certainly accords with our gut instinct for justice. On first impression, of the two parties involved in the case, the Company would appear to be more blameworthy. While the judgment does not disclose the actual date the Company’s registered office was changed by the Company, the facts indicate that it was probably before the date the first attempt to serve the statutory demand was made. If so, when the Company lodged the notice of change of its registered office with the. Registrar on 5 March 1990, it would have been outside the 14-day period prescribed by the Companies Act for the lodgement of such notice.
The decision also makes it administratively convenient for those who wish to serve notices or other documents on Singapore-incorporated companies. Yong J. aptly pointed out that under section 142(1) of the Companies Act, every such company is required from the date of its incorporation to have a registered office within Singapore to which all communications and notices may be addressed. section 387 of the Companies Act further provides as follows:
“A document may be served on a company by leaving it at or sending it by registered post to the registered office of the company.”
It would therefore appear from the decision in Re Shangri-la Cruise Pte. Ltd. that if no notice has been lodged by a company with the Registrar of Companies to notify the Registrar of any change of the company’s registered office within the 14-day period prescribed by section 143 of the Act, any third party serving a document on a company before any such notice is lodged may safely assume that it has been served on the registered office of the company...
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