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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Halifax Plc & Ors v Halifax Repossessions Ltd & Ors [2004] EWCA Civ 331 (02 February 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/331.html Cite as: [2004] EWCA Civ 331 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
MR JUSTICE PATTEN
The Strand London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ARDEN
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Claimants/Respondents | |
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(6) DHARAM PRAKASH GOPEE | Defendants/Appellants |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR R HACON (instructed by DLA, Leeds LS1 4BY) appeared on behalf of the Respondents
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Crown Copyright ©
Monday, 2 February 2004
"1. I order that each of the three defendants and all the subscribers shall take all necessary steps to procure that the registered names of the first three defendants shall be changed to a name not including the word 'Halifax
' or any other word confusingly similar to '
Halifax
'.
2. Secondly, I authorise Mr Edward Chatterton of DLA, Solicitors in the name and on behalf of each of the defendants and each of their subscribers to take all necessary steps to change the registered name of the company in accordance with that order.
3. Thirdly, I grant an injunction restraining Mr Gopee from causing or permitting any steps to be taken calculated to effect the registration of any company at the Companies Registry with a name including the word 'Halifax
' or any or name confusingly similar to '
Halifax
'."
No question arose on this appeal on the order of Lightman J save with respect to his order for costs as we are informed that a certificate of incorporation on change of name has been issued by the Registrar of Companies showing that the names of the three defendant companies have been changed so as to exclude the word "Halifax
" or any word confusingly similar thereto. It appears that the changes of names were not effected by the members of the relevant companies but pursuant to the order of Lightman J. However, Mr Gopee has not taken any point on this.
"... the very gravest doubt whether the Registrar of Companies has power to comply with the order made by the court. Indeed, the claimant has apparently conceded that he did not. If there is no power to comply with the order, the order should not have been made; albeit it is easy to see why the judge made the order having been asked to do so in an apparently unopposed application by the claimant no doubt in the course of a busy list. Also, the order that he was being asked to make was doing no more than achieving what Mr Gopee had already been ordered to do by Blackburne J on 27th February. If the court had no power to make the order, it does not matter whether Mr Gopee was properly served with the application, except possibly as to whom he should apply to have it set aside."
Sir Martin Nourse went further. He said this:
"In my view an appeal against that order [the order of Patten J] is bound to succeed. I am quite satisfied that the Registrar of Companies has no power to change the name of a company in circumstances where there has been no special resolution of the company to that effect."
Those observations were of course made on an ex parte application by Mr Gopee for permission.
"If an order of mandamus, a mandatory order, an injunction or a judgment or order for the specific performance on a contract is not complied with, then, without prejudice to its powers under section 39 of the Act and its powers to punish the disobedient party for contempt, the court may direct that the act required to be done may, so far as practicable, be done by the party by whom the order or judgment was obtained or some other person appointed by the court, at the cost of the disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the court may direct and execution may issue against the disobedient party for the amount so ascertained and for costs."
"(1) A company may by special resolution change its name (but subject to section 31 in the case of a company which has received a direction under subsection (2) of that section from the Secretary of State).
...
(6) Where a company changes its name under this section, the registrar of companies shall (subject to section 26) enter the new name on the register in place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case; and the change of name has effect from the date on which the altered certificate is issued."
As to special resolutions section 378 provides:
"(1) A resolution is an extraordinary resolution when it has been passed by a majority of not less than three-fourths of such members as (being entitled to do so) vote in person or, where proxies are allowed, by proxy, at a general meeting of which notice specifying the intention to propose the resolution as an extraordinary resolution has been duly given."
(2) A resolution is a special resolution when it has been passed by such a majority as is required for the passing of an extraordinary resolution and at a general meeting of which not less than 21 days' notice, specifying the intention to propose the resolution as a special resolution, has been duly given."
The passing of a resolution in accordance with section 378 therefore requires a meeting and a notice of meeting. Section 381A provides a statutory procedure for written resolutions in the case of private companies. In this case no meeting or notice of meeting is required. Section 381A provides:
"(1) Anything which in the case of a private company may be done
(a) by resolution of a company general meeting;
(b) by resolution of a meeting of any class of members of a company
may be done, without a meeting and without any previous notice being required, by resolution in writing signed by or on behalf of all the members of the company with the date of the resolution would be entitled to attend and vote at such meeting."
However, whether section 378 or section 378A applies, the resolution must be passed by the members, so I need to turn to section 22 for the statutory definition of members:
"(1) The subscribers of a company's memorandum are deemed to have agreed to become members of the company, and on its registration shall be entered as such in its register of members.
(2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, is a member of the company."
As to the members of the three companies, there is in evidence the annual return for Halifax Repossessions
Ltd which was filed at the Companies Registry on 10 February 2000. This shows that the two subscribers, who were registration agents, transferred their two ordinary shares on 25 January 1999 to Gopee Minors Trust of 86 Hermon Hill, London E18. Accordingly, as at the date of that annual return the Gopee Minors Trust was the sole member of that company. In the case of
Halifax
Second Mortgages Ltd there is in evidence an extract from its annual return filed at the Companies Registry on 11 September 1999 and this shows that there were four shareholders, including the two children of Mr Gopee named in the order of Blackburne J. We are informed that the other two persons are also children of Mr Gopee. In relation to
Halifax
Business Finance Ltd Mr Hacon has told the court that as at 21 August 2001 there were two shareholders, namely the two children to whom I have referred. So it appears again the subscribers' shares had been transferred to other persons who thereupon became the members. Limited searches of the public files of the companies were carried out in April and may 2002. These revealed that
Halifax Repossessions
Ltd had filed another list of members in 2002 but that is not in evidence. It does not app4ear that there is any other information about the members of the other two respondent companies filed at the Companies Registry apart from that summarised above.
"The registrar or other officer performing under this Act the duty of registration of companies in England and Wales or in Scotland, as the case may require." (See section 744 of the Companies Act 1985).