Fu Zhihui Alvin & Anor v Accounting And Corporate Regulatory Authority

Facts

Mr Fu Zhihui Alvin was the sole director and shareholder of Authorities Services Pte Ltd, a company he incorporated on 16 October 2015 to provide consultancy services. He also ran a real estate agency business through another company. In or around December 2018 he decided to concentrate on the real estate business, and as director he applied to the Accounting and Corporate Regulatory Authority under s 344A of the Companies Act for the consultancy company to be struck off. It was struck off on 7 March 2019, with no assets or liabilities.

On 29 December 2022 he filed Originating Application No 891 of 2022 under s 344(5) of the Companies Act 1967 to restore the company to the register. He wanted to use it as a vehicle for investments, and said restoration would be quicker and cheaper than incorporating a new company. He said the company had no disputes, debts or pending claims, and offered undertakings including bringing its annual returns up to date. Because the company was struck off, it could not itself be an applicant, so Mr Fu was the sole applicant. The Authority was informed of the application but did not take part.

Issues

1. Whether Mr Fu had standing as an aggrieved person even though he had applied to strike the company off.
2. Whether it was just to restore the company where the benefit claimed was saving time and cost on future investments.
3. Whether restoration would cause prejudice to any third party.

Holding

Lee Seiu Kin J granted the application and ordered the company restored to the register, finding that Mr Fu had standing and that it was just to restore it, with no exceptional countervailing circumstances.

Reasoning

The judge noted that s 344(5) may be used to restore a company struck off on its own application under s 344A, as held in Re Asia Petan. An applicant must be aggrieved, apply within six years, and show either that the company was operating when struck off or that restoration is just.

On standing, the judge relied on Ganesh, where the applicant had agreed to the striking off and was still allowed to restore the company. He saw no material difference between approving a striking off and applying for it on the company's behalf. The authorities read the test broadly: a director loses some right of value or potential value when the company is struck off, and Ganesh held that a director's position alone can give standing. Policy also supported a wide view, since there may be good reasons for the same director to restore a company, for instance to sue an errant co-director.

On whether restoration was just, the judge said the case crossed the line, if only barely. Unlike Ganesh and Re Blenheim, no existing value would be preserved. But nothing required the benefit to accrue to the company itself, and saving Mr Fu the time and cost of a new incorporation was a tangible benefit, with possible wider economic benefit. The threshold was only that the interest not be merely shadowy. Safeguards against careless strike-offs followed by restorations remained: the shorter six-year window introduced by the 2014 amendments, and the cost of a court application. There was no prejudice to anyone, the Authority did not object, and Mr Fu undertook to bear its restoration costs.

From the judgment