EASTERN CARIBBEAN SUPREME COURT
BRITISH VIRGIN ISLANDS
IN THE HIGH COURT OF JUSTICE
IN THE MATTER OF SECTION 218 OF THE BVI BUSINESS COMPANIES ACT, 2004
AND IN THE MATTER OF FLOWERY DEVELOPMENTS LIMITED
AND IN THE MATTER OF AN APPLICATION FOR THE RESTORATION OF A DISSOLVED
(as former director of FLOWERY DEVELOPMENTS LIMITED)
THE REGISTRAR OF CORPORATE AFFAIRS
Mr. Dave Marshall of Collas Crill LP for the claimant
Ms. Dian D Fahie for the defendant
2020 July 9, 27
 JACK, J [Ag.]: Flowery Developments Ltd (“the
Company”) was incorporated on 8th February 2012. On 4 th December 2018 the Company started the process of voluntary
liquidation. The voluntary liquidation was completed on 21st
January 2019. The same day the Registrar of Corporate Affairs issued a
certificate of dissolution. On 5th June 2020, the claimant
issued a fixed date claim seeking an order from the Court pursuant to
section 218 of the BVI Business Companies Act 2004
restoring the Company to the Register of Companies.
 The facts, which were not in dispute, are set out in Mr. Marshall’s
skeleton argument as follows:
“(a) Pursuant to an Agreement for the Sale and Purchase of Loan dated 20
November 2018 (the ‘Assignment’), the Company assigned its claims against
Kensaliv Consultants Ltd. (‘Kensaliv’) to Black Eagle Litigation Investment
Fund Limited (‘Black Eagle’) on terms that consideration for the Assignment
should be paid to the sole shareholder of the Company, Truetake Limited
(‘Truetake’). The Assignment is governed by UK law.
(b) Pursuant to clause 3.1 of the Assignment, the first instalment of the
consideration in the sum of US$1 million for the Assignment was due to be
paid to Truetake on the expiry of 14 months from the date of the
Assignment, on 20 January 2020.
(c) Under clause 3.2 of the Assignment, in the event that Black Eagle
failed to pay any instalment of the consideration due under clause 3.1, the
Company had the right to give notice to Black Eagle requiring the latter to
immediately execute assignments from Black Eagle back to the Company in
substantially the same form as that which was attached to the Assignment.
The Assignment did not provide for Truetake to assert any similar rights
against Black Eagle.
(d) On 20 January 2020, Black Eagle wrote to Truetake and to the Company
indicating that Black Eagle’s efforts to raise funding to pay the
instalments due under clause 3.1 of the Assignment had failed and that
accordingly, Black Eagle was unable to honour its financial obligations
under the Assignment. Black Eagle further indicated that it was ready to
honour its obligations to execute assignments in favour of the Company
pursuant to clause 3.2 of the Assignment.
(e) The Claimant as former director of the Company therefore seeks an order
restoring the Company to the Register of Companies so as to allow it to
enforce its rights against Black Eagle under clause 3.2 of the Assignment.
 In addition, by clause 2.2 of the Assignment, Black Eagle acknowledged
and agreed that the “Loan [to Kensaliv] is in default and may be
non-performing and pending proceedings may have been filed by or against
one or more of the Borrower Parties.” Since the assignment is governed by
English law, the Contracts (Rights against Third Parties) Act 1999 (UK)
gives Truetake the right to enforce against Black Eagle the term as to
payment of the consideration. The term granting the Company’s right to a
reassignment from Black Eagle of the claim against Kensaliv was not granted
for the benefit of Truetake, so Truetake cannot require Black
Eagle to assign the claim to it: see ibid section 1(1). (No
evidence has been adduced as to Black Eagle’s willingness voluntarily to
assign the claim against Kensaliv to Truetake.)
 The relevant legislation provides:
” 218. Application to restore dissolved company to Register.
(1) Application may be made to the Court to restore a dissolved company to
the Register by
(a) a creditor, former director, former member or former liquidator of the
(b) any person who can establish an interest in having the company restored
to the Register.
(2) An application under subsection (1) may not be made more than ten years
after the date that the company was dissolved.
(3) Notice of the application shall be served on [various officials].
218A. Court’s powers on hearing.
(1) Subject to subsection (2), on an application under section 218, the
(a) restore the company to the Register subject to such conditions as it
considers appropriate; and
(b) give such directions or make such orders as it considers necessary or
desirable for the purpose of placing the company and any other persons as
nearly as possible in the same position as if the company had not been
dissolved or struck off the Register.
(2) Where the company was dissolved following the completion or termination
of its voluntary liquidation under this Act or its liquidation under the Insolvency Act, 2003
, the Court shall not restore the company to the Register unless
(a) the applicant nominates a person to be liquidator of the company, if it
is restored to the Register;
(b) the person nominated as liquidator consents to act, and is eligible to
act, as liquidator of the company on its restoration; and
(c) satisfactory provision has been made or will be made for the expenses
and remuneration of the liquidator, if appointed.
(3) For the purposes of subsection (2)(b), a person is eligible to act as
the liquidator of a company,
(a) in the case of a company that was dissolved following the completion or
termination of its voluntary liquidation, if he would be eligible to be
appointed voluntary liquidator of the company under this Act;
(b) in the case of a company that was dissolved following the completion or
termination of its liquidation under the Insolvency Act, if he is a
licensed insolvency practitioner who would be eligible to act in relation
to the company in accordance with section 482 of that Act.
(4) Where the Court makes an order restoring a company to which subsection
(2) applies, it shall appoint as liquidator of the company
(a) the person nominated by the applicant; or
(b) some other person who is eligible to act as liquidator of the company.
218B. Effect of restoration.
(1) Where the Court makes an order restoring a company to the Register, a
sealed copy of the Order shall be filed with the Registrar…
(2) On receiving a filed copy of a sealed order under subsection (1), the
Registrar shall restore the company to the Register with effect from the
date and time that the copy of the sealed order was filed and issue a
certificate of restoration to the Register.
(3) Where the company was dissolved following the completion or termination
of its voluntary liquidation under this Act or its liquidation under the Insolvency Act, 2003,
(a) the company is restored as a company in liquidation under this Act or
the Insolvency Act; and
(b) the person appointed by the Court as liquidator is constituted
liquidator of the company with effect from the time that the company is
restored to the Register.
(4) Subject to subsection (5), a company is restored to the Register with
the name that it had immediately before it was dissolved.
(5) If the name of a company has been reused in accordance with Regulations
made under section 24(c), the company is restored to the Register with its
company number name.
(6) A company that is restored to the Register is deemed to have continued
in existence as if it had not been dissolved or struck off the Register.”
 It is not in dispute that the claimant, as a former director of the
Company, has standing to bring the current application. The former
liquidator, Ms. Cassandra Glasgow-Penn, is willing to continue to act as
liquidator, if the Company is restored. The various other necessary
formalities have been or will be honoured, if restoration is ordered.
 There is a difference in the Court’s approach to applications for
restoration where a company has been dissolved purely administratively
(usually for non-payment of fees) and where a company has been liquidated.
Restoring a company after a liquidation has been concluded, is a much more
serious matter. Liquidation is intended to be terminal. All rights and
obligations of the company will have been settled.
 It is now well established in this Territory that the English
authorities on restoration of companies are inapplicable, because the
legislation here is different to that in the United Kingdom:
Dedyson Enterprises Limited v Registrar of Corporate Affairs
In Yeung Kwok Mung v Attorney-General and another
Bannister J said:
 I held in Dedyson… that other than in the most
exceptional circumstances (which I found to have arisen in that case),
there could be no grounds for restoring a company which had been wound up
and dissolved under the provisions of Part XII of the BCA for the purpose
of enabling it to resume business or commence some new business.
Ordinarily, a company which has been dissolved pursuant to section 208 of
the BCA after declaring that its liquidation has been completed should be
restored only when necessary for the purpose either of dealing with matters
which should have been dealt with in the winding up but were inadvertently
overlooked or which have unexpectedly arisen subsequently.
 In my judgment, even in these circumstances restoration should be the
course of last resort where companies have been dissolved following
liquidation. If a difficulty can be resolved without restoration, then that
alternative method is to be preferred. It is undesirable that the owners of
companies which they have decided to put into liquidation should be able to
revive them otherwise than when restoration is necessary in the interests
 In Elite Source Ltd v Registrar of Corporate Affairs
Ellis J held:
 In circumstances where it has already been advanced that liquidation
of the Companies was completed and there are no undistributed assets to be
administered or claims to be made by or against them which had not been
previously made, there is a clear onus on the Claimant to satisfy the Court
that there are circumstances which warrant restoration. Such a claimant
would have to go further to satisfy the court with cogent evidence that
there are good grounds for avoiding the dissolution of a company which has
been effectively and completely wound up and to address the potential for
prejudice to third parties.”
 Mr. Marshall submits:
“that this is a fit and proper case for the Company to be restored to the
Register of Companies for the following reasons:
(a) The restoration is necessary in order for the Company to enforce its
right to a reassignment under clause 3.2 of the Assignment;
(b) The right which is sought to be enforced under clause 3.2 was a
contingent right held by the Company prior to its voluntary liquidation;
(c) The re-assignment contemplated by clause 3.2 is permissible under
English law which governs the Assignment;
(d) There is no alternative to the Company being restored in order to
enforce its rights under the Assignment because:
(i) the Assignment accords the right of re-assignment to the Company solely
and to no other natural or legal person; and
(ii) it is true that as a matter of English law, Truetake may enforce its
right to the payment by Black Eagle of the consideration due to it under
clause 3.1 of the Assignment pursuant to the provisions of the UK Contracts (Rights of Third Parties) Act 1999.
However, this would be a wholly futile and uncommercial solution given
Black Eagle’s unequivocal indication that it is not in a position to honour
its financial obligations under the Assignment. In all the circumstances
therefore, the Court ought to exercise its discretion to restore the
Company to the Register of Companies.”
 Ms. Fahie submits that:
“restoration of the Company would serve no beneficial purpose consistent
with justice or its liquidation because:
(a) There is no evidence that the Company has any newly discovered assets
to distribute, and in fact the court is entitled to presume in the absence
of evidence to the contrary that all assets of the Company were distributed
during its liquidation. [The applicant’s evidence] confirmed that the
Company has no assets.
(b) There is no evidence of any creditors of the Company wishing to make a
claim against the Company, or that the Company wishes to make a claim that
was not previously made.
(c) Prior to its voluntary liquidation and dissolution, the Company
executed the [Assignment], thereby assigning its rights to claim against
Kensaliv to Black Eagle ‘for good and valuable consideration’. Therefore,
even before its dissolution, the Company had no legal rights or obligations
with respect to the Original Loan. The Company’s restoration is therefore
unnecessary, and may prejudice the former shareholder of the Company
(discussed at (f) below)…
(d) Clause 3.24 of the [Assignment] which is relied on by the Claimant as
the basis for restoring the Company, merely gives the Company the
discretion of giving notice to Black Eagle to re-assign the claim. Once the
Company decided to voluntarily liquidate and dissolve, clause 3.2 (which in
any event is not obligatory), became invalid and unenforceable as a
dissolved company does not have the discretion to give notice. However, by
Clause 6.2… the validity of the other provisions of the [Assignment]
remain unaffected with the effect that Black Eagle can pursue the alleged
(e) Even if the Company was restored, the Company has no means to pursue a
claim against Kensaliv as it has no assets according to [the applicant’s
evidence]. The Company would either have to borrow money or require the
shareholder to inject funds.
(f) There is no evidence of prejudice to third parties if the Company is
left dissolved. …Kensaliv is in default of its obligations (i.e. its
obligations to Black Eagle). The Company now seeks to be restored to
execute the right under the assignment to ‘take back the claims from Black
Eagle and enforce its rights against Kensaliv.’ Although the claimant would
prefer the Company to pursue Kensaliv for its purported breach, there is no
cogent evidence to suggest that anyone would be prejudiced if Black Eagle
(as opposed to the Company) enforced its rights against Kensaliv. On the
contrary, restoring the Company and assigning the now defaulted Original
Loan back to the Company does not appear to be in the best interest of the
former shareholder. Restoration may be prejudicial to the former
shareholder of the Company.
There is an alternative to restoration – …Black Eagle has the legal
right to pursue Kensaliv as opposed to restoring the Company to pursue
Kensaliv. In other words, there is an alternative to the restoration of the
company, which according to Dedyson and Elite Source… should be preferred. There is nothing
in evidence to suggest that Black Eagle cannot pursue the alleged breach
There is no evidence of exceptional circumstances in this case – the
Original Loan along with all its rights and obligations were assigned to
Black Eagle. The Company does not (cannot) have any legal obligations in
respect of the Original Loan.”
 In my judgment, Ms. Fahie’s submissions are convincing. Truetake can
sue Black Eagle for the sums assigned to it. Truetake can then enforce
against Black Eagle, by, for example, obtaining a charging order over Black
Eagle’s claim against Kensaliv. There is therefore no need for the
Company to be restored. If the Company were restored, it has no money to
enforce the right to a reassignment from Black Eagle. It would have to
borrow funds, presumably from Truetake. The Assignment to Truetake was
intended to be final. The benefit of the right to reassignment of the claim
against Kensaliv was not assigned to Truetake. Truetake took the Assignment
in the knowledge that it had no right either to take the reassignment
itself or to force the Company to enforce against Black Eagle the right to
 There are in my judgment no exceptional circumstances which would
justify the restoration of the Company. The liquidation was fully
completed. Truetake had (and on any restoration of the Company, would have)
no right to insist that the Company exercise the right to reassignment
against Black Eagle. There is no benefit to the Company in being restored.
 Accordingly, I refuse the application to restore the Company.
 I should add a word about the expert report of Mr. Josh Lewison, which
Mr. Marshall sought to introduce. Mr. Lewison is English counsel. He gives
expert evidence of English law in relation firstly to the Contracts (Rights against Third Parties) Act 1999 and
secondly of his “opinion on English law in relation to a point governed by
BVI law [i.e. section 218ff], in case that the Court finds that BVI law is
applicable in the same way.”
 As I held in Reniston Ltd v Nedlands Overseas Inc:
“ As [for] the need for the expert report, Barrow JA held in
Alfa Telecom Turkey Ltd v Cukurova Finance International Ltd
that ‘courts in this jurisdiction normally determine for themselves, in
normal domestic law litigation, the content and meaning of English law
without any thought of receiving expert evidence…’ This is because
all judges of the Eastern Caribbean Supreme Court are trained in English
law and all states and territories within the jurisdiction (with the
limited exception of St Lucia) have imported English common law and often
much English statute law. In the Commercial Division, moreover, most of the
judges have practiced in England, including Bannister and Wallbank JJ.
Many have judicial experience in England. Eder J was a retired justice of
the High Court of England and Wales. Kaye, Davis-White, Green JJ and myself
were or are authorized to sit in the English High Court. Obtaining expert
evidence of English law is particularly otiose in the Commercial Division.”
 There was no need to adduce any expert evidence about the 1999 Act.
The Court is perfectly well capable of interpreting it. So far as the
second point is concerned, as Dedyson, Yeung Kwok Mung and Elite Source show,
BVI law is not the same as English law. This part of counsel’s expert
report on English company law was therefore so much wasted ink. If an
application to adduce expert evidence had been made, I would have refused
 I shall hear counsel on what consequential orders I should make.
Commercial Court Judge [Ag.]
By the Court
No 16 of 2004, Laws of the Virgin Islands.
1999 c. 31.
No 5 of 2003, Laws of the Virgin Islands.
BVIHC (COM) 2011/0008 (delivered 17th February 2011).
BVIHC (COM) 2011/0002 (delivered 23rd February 2011).
BVIHCV2013/0077 (delivered on a date unknown in 2015).
BVIHC (COM) 2020/0047 (determined 31st July 2020).
HCVAP 2007/027 (determined 22nd April 2008, unreported)
at para .
To which number I should add Chivers J.