This Alert highlights provisions in force as of 1 January 2023 under the BVI Business Companies (Amendment) Act, 2022 (the “Act”) concerning struck off and dissolved companies and the process for restoration of these companies to the Register.
Striking Company off the Register
The Registrar remains entitled to strike the name of a company off the Register on the same grounds provided under the previous section 213 (1) of the Act, the most common grounds being that the company has failed to pay its annual fees or penalties by the due date or the company not having a registered agent.
There is however a change in the prior notice to be given by the Registrar before the company is struck off the Register (the “Notice”). The Registrar now has the discretion to give the company no longer than 90 days, previously 30 days, to show good cause as to why it should not be struck off on receipt of the Notice. Note that if an intent to resign was filed by a registered agent prior to 1 January 2023, the Registrar is still expected to give a 30 day notice period for the company to rectify the situation.
Dissolution of Company Struck off the Register
A major change brought by the new legislation is the date by which the struck off company is deemed dissolved. Previously, where a company remained struck off the Register continuously for a period of 7 years, it was deemed dissolved with effect from the last day of that 7 year period. Now where a company is struck off the Register, the Company is deemed dissolved on the date the Registrar publishes the notice of the striking off in the Gazette.
Application to Registrar for Restoration to the Register
Under the new provisions, an application to restore a company to the Register must be made within 5 years. The application may be made by the company, creditor, member or a liquidator of the Company and must be in the approved form.
Upon receipt of such an application, the Registrar may restore the Company to the Register if satisfied that conditions specified under the Act have been met.
Application to Court for Restoration to the Register
An application to the Court for restoration of a dissolved company must also be made within 5 years previously 10 years.
Following what is usually a brief court hearing in circumstances where the Registrar has confirmed that she will not be objecting to the application for restoration, the applicant must ensure that a sealed copy of the court order granting the restoration is filed with the Registrar within 30 days or risk the order ceasing to have effect.
It should be noted that the restoration filing fee payable to the Registrar on receipt of the court order has increased to as much as US$4,600 if the application for restoration was made more than 12 months after the date of dissolution of the company. This figure includes the fee for filing a sealed copy of the order and is in addition to the outstanding annual licence fees and penalties.
Restoration of Existing Struck Off Company to the Register
Where a company was already struck off as of 1 January 2023 and had 7 years from the struck off date within which to apply to be restored to the Register ( the “Existing Period”) that company now has up to 6 months or by June 30th 2023 to apply to be restored to the Register.
If the Existing Period for the struck off company comes to an end on any date between 1 January and 30 June 2023, the company has up to the earlier date to apply to be restored to the Register. Therefore, if the Existing Period comes to an end on 21 May 2023, the company must apply to be restored to the Register by 21 May 2023. If the Existing Period for the struck off company falls on a date after 30 June 2023 the company is still required to make its application by 30 June 2023.
Restoration of Existing Dissolved Company to the Register
Where a company was already dissolved as of 1 January 2023 and had 10 years from the date of dissolution by which to apply to be restored to the Register (the “Existing Period”) that company now has up to 5 years or by 31 December 2027 to apply to the Court to be restored to the Register.
If the Existing Period for a dissolved company comes to an end on any date between 1 January 2023 and 31 December 2027, the company must apply to be restored by the earlier date. Accordingly, if the Existing Period comes to an end on 9 April 2026, the company must apply to be restored to the Register by 9 April 2025. If the Existing Period for a dissolved company comes to an end on a date after 31 December 2027, that dissolved company must apply to be restored to the Register by 31 December 2027.
For further information regarding these new provisions, please contact the author or your usual Conyers adviser.