134. Register of charges to be kept by Registrar Flashcards
- Register of charges to be kept by Registrar
General overview
[134.01] The certificate of registration of a charge is conclusive evidence that the requirements as to registration have been complied with. The company has to provide the particulars of the charge that has been created by the company over the property identified therein, the amount secured by the charge and the name of the person entitled to the charge. If it concerns a charge existing on property acquired by the company, then the date of acquisition of the property shall be conclusive evidence as such.
Conclusive evidence
[134.02] The notice of registration is conclusive evidence that the requirements of registration had been complied with even though the particulars were delivered out of time ( R v Registrar of Companies, Ex p Central Bank of India [1986] 1 All ER 105, CA ; National Provincial and Union Bank of England v Charnley [1924] 1 KB 431, CA ); or even if the documents creating the charge have been falsely dated ( Re Eric Holmes (Property) Ltd [1965] Ch 1052, HC ); or where the date had been changed to induce the registrar to register the charge ( Re CL Nye Ltd [1971] Ch 442, CA ). The certificate of the Registrar of Joint Stock Companies under s 14 of the Companies Act 1900 (UK), is conclusive evidence that all the requirements of the section as to the registration of debentures have been complied with, and where such a certificate has been granted the court will refuse to go into the question whether such requirements have in fact been complied with:Re Yolland, Husson & Birkett Ltd, Leicester v Yolland, Husson & Birkett, Ltd [1908] 1 Ch 152, CA . The certificate is not conclusive evidence of the particulars stated therein. Evidence may be adduced to show the actual property the charge covers: National Provincial and Union Bank of England v Charnley (above); Cunard Steamship Co Ltd v Hopwood [1908] 2 Ch 564, Ch D . The charge may be enforced for the true amount owing even though the amount secured was misstated in the particulars: Re Mechanisations (Eaglecliffe) Ltd [1966] Ch 20, HC . Where the charge created over the fixed deposit that was given as security was not stated in the particulars submitted for registration, it was held that the charge was void: Ricky Thong Yew Fook v OCBC Bank (M) Bhd [2003] 5 MLJ 385, HC. The certificate is conclusive evidence as to the fact that the charge is duly registered, and not conclusive as to its validity, its extent and the property it covers
Court’s supervisory powers
[134.03] Section 134(2) and (3) precluded the court, notwithstanding that the proceedings were proceedings for judicial review, from considering evidence adduced to show that the requirements as to registration had not been complied with. Evidence on non-compliance as to the documents lodged for registration is inadmissible in court
Prescribed form
[134.04] The use of the statutory form to set out the particulars of a charge prescribed to be delivered pursuant to s 95(1) of the Companies Act 1948 (UK), while desirable, is not mandatory: R v Registrar of Companies, Ex p Central Bank of India [1986] 1 QB 1114, CA. Further, it held that the Attorney General could probably apply for judicial review to quash a certificate of registration since the Companies Act 1948 (UK) is not so expressed as to bind the Crown. Per Slade LJ: s 98(2) of the Companies Act 1948 (UK) confers on the Registrar of Companies jurisdiction finally and conclusively to determine whether the requirements of s 95(1) have been complied with and he cannot be said to be acting beyond his powers even if he makes an error of fact or law in doing so. Per Dillon LJ: it is difficult to see why, in modern conditions, a certified or photographic copy of an instrument should not suffice for the purposes of s 95(1) of the Companies Act 1948 (UK). See s 65 of the Evidence Act (Cap 97).
