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Antares International Ltd and Another v Louw Coetzee & Malan Incorporated and Another (11529/11) [2011] ZAWCHC 366; 2014 (1) SA 172 (WCC) (2 September 2011)

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23. LCM also argued that the application should fail with reference to the aspects of balance of convenience, no alternative remedy and the court's discretion. On LCM's version it was owed more than R2.7 million and AlL's opposition to the action was vexatious. The helicopters, according to LCM's evidence, were worth far less than the sum owed to LCM. There would thus be no loss to AIL if they were sold. Even if there was a loss, AIL would have an action for damages which LCM "hereby tenders and undertakes to pay ",

24. In short supplementary heads, tiled the day before the hearing. LCM's counsel submitted that LCM's previously expressed view, to the effect that the trial could not proceed on 29 August 2011 given AIL's dissolution, was erroneous. At the commencement of the hearing before me Mr Joubert argued that LCM was entitled to ask for judgment by default and then to execute against the helicopters. He submitted that this would render the interdict application moot.

25. During the course of oral argument, and when it appeared that the court was unlikely to accede to request to hear the action on a default basis. Mr Joubert submitted that the interdict application should be postponed for about one month so that the attitude of the Receiver-General in regard to the helicopters could be established. I lis client was apparently of the view that the Receiver-General would probably have no interest in asserting ownership of the helicopters and this, so it was suggested, would be relevant to the interdict. In the alternative, he maintained lhat theapplication should be dismissed, given the applicants* failure to dale to issue a restoration application.

The fate of the trial

26. I informed counsel at the outset that the matter had been allocated to me on the basis that only the application was proceeding and that owing to a part-heard trial resuming the next day I was available for only one day. Counsel's practice note, I may add. recorded that the parties were agreed that the trial could not proceed.

27. Mr Joubert at first contested that LCM was bound by that agreement, since it was based, so he submitted, on a misapprehension of the correct legal position. With reference to Hymore Agencies Durban (Pfy) Ltd v Gin Nih Weaving Factory 1959 (1) SA 180 (N). particularly at 182G-183A, and to Silhouette Investments Ltd v Virgin Hotels Group Ltd 2009 (4) SA 617 (SCA) at para 40. he argued that the dcrcgistration of a foreign company does not prevent a plaintiff from taking judgment in a South African court where the plaintiff has an attachment to found or confirm jurisdiction. There is, however, considerable authority here and abroad for the not altogether surprising proposition that no judgment may be entered against a dissolved company.¹ The two cases cited by Mr Joubert do not take him over this hurdle since neither of them was dealing with a situation in which a parry had ceased to exist. In Hymore the foreign company still existed - it was merely under bankruptcy in Hong Kong. Henochsbcrg J said that the bankruptcy in I long Kong did not without more have effect in South Africa or prevent the company from being sued here in the ordinary way. Silhouette Investments is even further removed from the present problem. In the passage cited Farlam JA was simply contrasting the effect of a judgment against a peregrinus based on an attachment with a judgment based on submission.

28. Mr Joubcrt in the event conceded that the only practical thing to be done with the pending action at this stage is to postpone it sine die with all questions of costs to be reserved. I should make it clear that this does not represent a definitive finding that LCM can under no circumstances claim redress in the pending action unless AIL is restored to the register in Guernsey. While I struggle to conceive on what basis LCM could obtain a
judgment against AIL without its restoration or on what basis LCM could claim a right to the helicopters without obtaining a judgment against AIL. it is not necessary to close the door finally. LCM remains free to apply to court for any relief to which it believes it is entitled.

The interdict application

29. I turn now to the interdict application. But for AIL's deregistration. I entertain no doubt lhat AIL would be entitled to an interdict on the facts disclosed in the application. The two helicopters in question were AIL's property and (but for its dcrcgistraiion) would still be. They were attached by the sheriff on the ex parte order of this court for the purpose of founding or confirming jurisdiction in LCM's proposed action against
AIL. No doubt the attachment would also facilitate execution if LCM were ultimately to succeed in the action. After all. an attachment to found or confirm jurisdiction is traditionally viewed as satisfying the jurisdictional requirement of effectiveness of the court's order (Thermo Radiant Oven Sales (Ply) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A) at 307A-3IOC). However, until a final judgment has been obtained in the action and the helicopters have been attached in execution, the helicopters cannot lawfully be sold without AIL's permission.

30. When property is attached to found or confirm jurisdiction in an action, its ownership remains with the defendant but temporary control and custody passes to the sheriff. The plaintiff has no right to the attached property. Where properly is under the sheriff s attachment in these circumstances, a plaintiff who physically removes the attached property and sells it would be acting in violation of the defendant's right of ownership. He would also be guilty of a criminal offence in terms of s40(b) of the Supreme Court Act 59 of 1959. That section provides that any person who, "being aware that goods are under arrest, interdict or attachment by the court makes away with or disposes of those goods in a manner not authorized by law, or knowingly permits those goods, if in his possession or under his control, to be made away with or disposed of in such a manner", shall be guilty of an offence. A person so acting would probably also be guilt)' of theft and contempt of court.

31. If such an act were threatened by a plaintiff and if the defendant sought an interdict it would be no answer for the plaintiff to say that his claim in the pending action is strong, that the attached goods are worth less than the claim, and that even if the defendant should ultimately suffer a loss the plaintiff is willing in advance to tender damages. The whole point of the pending action would be to determine whether or not the plaintiff has a good claim. The plaintiff cannot be permitted to obtain an ex parte attachment over the defendant's properly and then, without awaiting the court's determination in the action, resort to self-help. The unlawful violation of the defendant's property would give the defendant a clear right to relief. Since the defendant would be seeking to protect his ownership, irreparable prejudice would be presumed (see Olympic Passenger Service (Pry) Ltd V Ramlagan 1957 (2) SA 382 (D) at 384G-H).

32. There was some suggestion by Mr Joubert in oral argument that LCM had not really threatened to act unlawfully. He referred in this regard to LCM's letter of 6 June 2006 from which I quoted earlier and pointed out that LCM had said that notwithstanding the sale of the helicopters they would 'not be released from attachment". As Mr Harrington observed in response, this quoted phrase was immediately followed by the words "pending further advices", conveying that LCM would itself decide whether the helicopters would be released or remain under attachment. And the very next paragraph of the letter (quoted earlier) confirms that a "release" from attachment by LCM was a contemplated outcome, because LCM explained how it would react to any application by the applicants to prohibit the sale and release of the helicopters. The applicants twice called for an undertaking that the helicopters would not be removed from SFT's premises (where they were being held under attachment). If LCM had no intention of removing the helicopters it would have given the undertaking. It did not. LCM also did not give any such undertaking in its answering papers. On the contrary, its statement that it intended to sell the helicopters and set off the proceeds against its claim and its tender to pay any resultant damages if proved make sense only on the supposition that the sale and delivery of the helicopters to a third party was intended.

33. However, the straightforward analysis set out above is in the present case bedevilled by the fact that AIL was struck off the register of companies in Guernsey in April 2011. In terms of s369 of the Guernsey Law the effect of the slriking-off and dissolution was that "all property and rights then vested in "AIL vested as bona vacantia in the Crown unless HM's Receiver-General directed otherwise. There is no suggestion that the Receiver-General directed otherwise or that (at least until the last day or two) he even knew of the helicopters" existence. (The consequence of the deregistralion of a company in South Africa under the Companies Act 61 of 1973 was similar to that laid down in s369 - the company's property vested as bona vacantia in the State. It was for this reason that the appropriate minister had to receive notice of an application under s73(6) of the Companies Act for the restoration of the company to the register: see Ex Parte Sengol Investments (Pty) Ltd 1982 (3) SA 474 (T).)

34. In its answering affidavit LCM contended that the "Crown of Guernsey'' did not exercise control over any assets situated "outside of its jurisdiction". The Crown referred to in s369 of the Guernsey Law is, of course, the Crown of Great Britain². 1 am not aware of anything which precludes the Crown from owning assets outside of Great Britain, and s369 contains no such qualification. This was also the expert opinion of Mr Friedlander, a Guernsey lawyer.

35. This does not necessarily conclude the question of ownership of the helicopters, because the question remains whether a South African court should apply the law of Guernsey or the law of South Africa to determine such ownership. The law of Guernsey is the lex domicilii of AIL, the erstwhile owner of the helicopters. The law of South Africa is the lex situs of the helicopters. The lex domicilii in this instance provides that the deregislered company's assets vest in the Crown, apparently without territorial limit. On the other hand, and in accordance with the South African doctrine of bona vacantia as discussed at some length in Rainbow Diamonds (Edms) Bpk & Andere v Snid-Afrikaanse Nasionale Lewensassuransiemaatskappy 1984 (3) SA 1 (A), South African law as the lex situs would probably dictate that the assets vest as bona vacantia in the South African Government. (The helicopters would not under South African law be res nullius capable of being acquired by a private party through occupatio. A corporeal asset can only be classified as res nullius if it was never previously owned or if its owner has voluntarily abandoned his ownership (cf LAWSA First Rc-Issue Vol 27 §§324-326; Silberberg and Schoeman's The Law ofProperty 5th Ed at32-33 and 137-139).)

36. This issue of private international law was not addressed by counsel for either side and is by no means straightforward. Since one is not dealing with the validity of a bilateral transfer of ownership, the lex situs is not necessarily applicable (cf Forsyth Private International Law 4^th Edition at 346-347; LAWSA 2nd Ed Vol 2(2) §324). The problem might be thought to be closer to the types of issues which occur in the field of succession, where the lex domicilii generally holds sway (Forsyth op cit at 365-366; LAWSA op cit §318). But even in the field of succession an interesting question may arise if the lex domicilii results in there being no heir in the ordinary sense. In this latter situation the ownership of non-domiciliary assets may require one to determine whether the rule (which obtains in many countries) that the assets vest in the State is properly to be characterised as a rule of succession (in which case the lex domicilii may apply) or as a rule that the State is simply the owner of things which do not have another owner (in which case the lex situs may apply): See Dicey & Morris The Conflict of Laws 13^th Edition §§27.011-013; Cheshire & Norths Private International Law 13^,h Edition at 43-44 and 985; Corbett et al The Law of Succession in South Africa 2^nd Edition at 614-615; Forsyth op cit al 365-366. In the context of succession, the Crown's ownership of bona vaccantia is regarded by English law not as a rule of succession but as a Crown prerogative (see the cases discussed in the foregoing references). This would appear also to be true of the bona vacantia doctrine in South Africa (see Ex Parte The Government 1914 TPD 596 at 597; Estate Baker & Others v Estate Baker & Others (1908) 25 SC 234 at 242-243). The common-law rule in this country that bona vacantia vest in the Government seems to be strictly territorial - in regard lo assets of deceased persons for whom no heir exists, Voet 38.17.29 is quite explicit to this effect: the State only becomes the owner of those assets found in its territory.

37. However, a South African court would apply Ihe lex domicilii to determine the question whether a company has been incorporated or dissolved (LAWSA 2nd Ed Vol 2(2) §304; cf Dicey & Morris supra at 1105-1106). The devolution of the assets of a dissolved company can be regarded as an incident of the law governing its incorporation and dissolution, and on this basis the lex domicilii appears to me to be the appropriate law to apply. The lex domicilii in this instance is not a residual common law component of the Crown prerogative (which might in Great Britain be purely territorial) but an unqualified statutory rule, namely s369 of the Guernsey Law. For a South African court to give effect to this section seems just and in accordance with the comity of nations. If the South African Government were in the present case to be held by a South African court to be the owner of the helicopters in accordance with the lex situs, this would impair the efficacy of Guernsey's legal regime whereby a Guernsey company can be restored lo the register and be revested with assets temporarily owned by the Crown as bona vacantia. There is nothing repugnant in such a regime. South Africa's own legal system is similar. This country, I venture to suggest, would not expect foreign States to assert ownership over the assets of deregistercd South African companies, thus impairing the latter's right to recover their assets from their domiciliary government. The decision of the Supreme Court of New South Wales in JF Lord as Liquidator of Silverline Technologies Pty Ltd [2005] NSWSC 620 appears to me to support this approach. There an Australian court held that the relevant New Zealand company legislation should be applied in deciding whether a claim which a deregistered New Zealand company held against an Australian company had been extinguished or whether it vested in the Crown (as was found to be the case) by virtue of the New Zealand statute.

38. Accordingly, and for purposes of the present application only, I accept that the helicopters currently vest in the Crown and that they would he revested in AIL if it were restored lo the register in Guernsey. This also leads lo the conclusion that LCM would be acting unlawfully if it took physical control of the helicopters and disposed of them as it has threatened to do. (LCM's conduct would, of course, also be unlawful if it were found that the helicopters belonged lo the South African Government. LCM's conduct would be unlawful even if the helicopters were res nullius, because Ihe helicopters would still be under attachment by the sheriff. However, a conclusion that the helicopters did not currently vest in the Crown under the Guernsey Law might be relevant to the applicants' locus standi, because the relief they claim is premised on the view that under the Guernsey Law the helicopters will revert from the Crown lo AIL if the latter is restored to the register.) I must emphasise that this judgment docs not determine the question of ownership other than between the present parties for the purposes of the present application. If the ultimate devolution of the helicopters were to require a decision of the court it would probably be necessary to give notice both to the Crown and to the South African Government.

39. It docs not follow-, from the conclusions reached thus far, that either AIL or La Scala has locus standi to obtain relief. As to AJL. there are two separate aspects potentially relevant to its standing. The first is the argument that as a dissolved company it does not exist and therefore cannot litigate at all. The second is that AIL is in any event no longer the owner of the helicopters and therefore does not have a sufficient interest to obtain an interdict to preserve the helicopters. (This second aspect might more accurately be viewed as concerning the existence of the right sought to be protected by the interdict than locus standi - see LA WSA 2nd Ed Vol 11 §393.)

40. Regarding the first of these aspects, there is authority lhat a South African company deregistered under s73 of the Companies Act 61 of 1973 ceased to exist for all purposes and thus could not obtain or be subject to any court order (see the cases cited in fn 1 above; see also Blackman et al Commentary on the Companies Act Vol 1 at 4-173). However, we are dealing here with a Guernsey company, and the question whether a struck-off Guernsey company can feature in litigation must be answered with reference to the law governing AIL's incorporation, i.e. the law of Guernsey. In this respect there are some important differences between South African law and the Guernsey Law. In tenns of s370(l)(a) of the Guernsey Law the struck-off company is one of the "persons " that may bring an application for its restoration. (This would not have been possible under s73 of the 1973 Act in South Africa - see Meskin Henochsberg on the Companies Act Vol 1 P144.³) Moreover, in terms of s368(b) of the Guernsey Law a struck-off company may stiil be the subject of a winding-up order. Such a company in Guernsey thus appears to occupy a twilight existence; it does not cease to exist for all purposes.

41. There is English authority, based on similar provisions to those of the Guernsey Law, that recognises that this shadowy existence may extend beyond the matters expressly mentioned in the legislation. I refer here to Top Creative Ltd & Another v St Albans District Council [20001 2 BCLC 379 (CA). There a company had instituted proceedings in a county court but had been dcregistered before finalisation of the proceedings. The proceedings were in danger of being struck out for want of prosecution. The company applied to the county court for the matter to be removed from the so-called "warned list" and for the matter to be adjourned pending the outcome of an application to restore the company to the register. The county court refused the application on the basis that the company had ceased to exist and was thus not entitled to maintain any cause of action. There were thus no proceedings extant before the court.

42. The Court of Appeal overturned this decision. After reviewing various authorities. Roch IJ (with whom the other two members of the court concurred) said the following (my emphasis):

"Turning to the present case, on 7^,h December 1998, the proceedings between the appellants and the respondents were, not absolutely and irrevocably at an end. They were sufficiently alive to be revived if the appellants were restored to the Companies' Register and to support an exercise by the judge of his inherent jurisdiction to deal with the costs incurred up to and including 7^th December, and to adjourn consideration of the respondent 'a ' applications for their costs against Mr Beuscher and the company's solicitors until the application to restore the company's name to the Register had been decided.

The judge, therefore, had a discretion to grant or refuse the applications before him on 7^lh December. In exercising his discretion, he misdirected himself in my judgment, in two ways. First, that the action between the appellants and the respondents was automatically and irrevocably at an end, when the company s name was removed from the Register and that, as a consequence, he had no jurisdiction to grant the application. Second, that the company had no existence of any kind during the period when its name was removed from the Register. Parliament, by providing that the company can be one of those who may apply for its name to be restored to the Register, clearly indicated a company in that situation has an existence at least for that purpose. Once restored to the Register, then steps taken by the officers of the dormant company on the company's behalf become the acts of the company by virtue of the resuscitating properties of section 653. "

43. Mr Friedlander opined in his affidavit that the Guernsey courts would probably follow this judgment in dealing with the similar provisions of the Guernsey law.

44. There thus appears to be a basis for the view that at least in relation to pending litigation to which a struck-off Guernsey company is a party, the company may feature in interlocutory' proceedings with a view to protecting its interests in the litigation pending its restoration to the register. In the present case LCM obtained an ex parte order against AIL for the attachment of its property and then issued summons against it on the strength of such attachment. This occurred at a time when AIL was a duly registered company. Pleadings had closed and a trial dale had been allocated before AIL was struck off the Guernsey register. In the window of opportunity which this dissolution has afforded, LCM is threatening to do away with AIL's helicopters that were attached for the sole purpose of founding or confirming jurisdiction in the pending action. AIL ought, by analogy with Ihe Top Creative case, to be entitled to ask the court lo preserve ihe status quo, at least pending its restoration.

45. The second argument - namely that the helicopters currently vest in the Crown would not in my view stand in the way of affording relief to All.. Ordinarily an interdict for the preservation of property would require the applicant lo allege some extant right in the property. However, the majority judgments in Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban. & Others [1986] ZASCA 6; 1986 (2) SA 663 (A) show, albeit in a different context, that the court has the power lo come to the aid of a litigant who cannot yet assert the existence of an extant right but who can show a prima facie case for obtaining relief in the future in consequence whereof the right will vest in him. In that case the applicant did not yet have the right to render road transportation services because (so it was alleged) the local road transportation board had improperly refused to grant the necessary permits. The applicant established a strong prima facie case that it would succeed in a statutory appeal to the National Transport Commission ("NTC"). Kotze" JA (with whom Joubert JA concurred) referred to the court's inherent jurisdiction to grant pendente lite relief lo avoid injustice and hardship where a prima facie case for the prospective relief was established (676A-D).

46. Grosskopf JA in a concurring judgment traced the court's jurisdiction in such u case back to the mandamentum poenaal of the Roman-Dutch law, which were temporary orders granted in a wide variety of circumstances where an applicant was threatened with irreparable loss (677G-678D). He pointed out thai at common law such orders could be granted even though the interdict was to operate pending relief to be adjudicated in some other court. He concluded that the court's power to prevent injustice by theissue of orders of mandament poenaal was extensive and enabled the court to come to the applicant's aid on the facts of that case.

47. The majority thus upheld the granting of a mandatory⁴ interdict pending the outcome of the appeal to the NTC.⁴ (In his dissenting judgment Van Hecrden JA said that such relief could only be granted pending a future decision of a court not an administrative body such as the NTC. He observed that in these cases the requirement for an interdict pendente lite is not so much a prima facie right but the existence of a prima facie case for obtaining the prospective right - see at 680H-681B.)

48. A somewhat different way of reaching a similar result would be to regard the interdict as protecting AH.'s right to apply for its restoration, in the sense that such a right might be rendered nugatory if in the meanwhile strangers were to make oil with the company's assets. This was the approach, although again in a very different context in Masuku v Minister van Justisie & Andere 1990 (1) SA 832 (A) where the court exercised its inherent civil jurisdiction to interdict the carrying out of a death sentence pending the consideration by the Stale President of a clemency application under s327 of the Criminal Procedure Act. The interdict was regarded as protecting the applicant's' right to submit and have his clemency application decided upon (840C-G).

49. The circumstances of the present case are unusual but I consider that on similar principles a South African court has the power to come to AIL's aid (assuming it retains the requisite corporate existence) in order to protect its prospective ownership of its erstwhile assets where such assets temporarily vest in the Crown hut would upon restoration be revested in the company. Such protection could be granted pending the determination of restoration by the court in Guernsey. (Upon such restoration the company, now as owner, would he entitled to obtain a final interdict if the unlawful conduct were still threatened, though from a practical perspective that might well no longer be necessary.)

50. If, contrary lo this view¹, AlL's dissolution were regarded as absolutely precluding the bringing of any proceedings in its own name, I would then conclude that a person with a sufficient interest in the erstwhile company and in its restoration would have locus standi to protect the status quo pending restoration. Our law recognises derivative or representative standing in various contexts. For example, a shareholder can under certain circumstances bring litigation in the interests and for the benefil of a company. Where executors or trustees are unable to litigate for the estate or trust (for example because they are personally conflicted) a beneficiary may be entitled to seek relief for the benefit of the estate or trust (see Gross & Others v Pentz [1996] ZASCA 78; 1996 (4) SA 617 (A) at 626G-628I). Admittedly these are cases where the person in whose interest another sues derivatively arc in existence. They illustrate, however, that in determining the entitlement to claim particular relief our law does not ignore the need lo do practical justice. In Jacobs & Ander v Waks & Andere [1991] ZASCA 152; 1992 (1) SA 521 (A) ihe court said that locus standi was not " 'n tegniese begrip met vas omlynde grense nie " and that the assessment of the sufficiency of a litigant's interest depended on the particular circumstances of the each case (534A-D). In a situation of the present kind, the dissolved company may be restored and revested with its assets. If a third party is threatening in the meanwhile to deal unlawfully with those assets, the erstwhile directors or shareholders are in justice the natural candidates to bring proceedings to preserve the dissolved company's interest in the assets pending its restoration.

51. Theoretically the Crown as temporary owner could also seek protection but to confine locus standi to the Crown would seem to me to be an affront to practical justice. The Crown is unlikely to know that it is the owner of the bona vacantia assets. Even if the Crown were notified of this fact, common sense suggests that the Crown would be unlikely to launch proceedings regarding the assets (particularly in a foreign countrj ). at least while there is a prospect of the company being restored to the register and being revested with its assets. In the present case, furthermore, urgent intervention was called for. In the unreported case of Weichelt & Others v Triponza Trading 276 CC & Another [2008] ZAGPHC 201. where a similar problem arose in relation to a dcrcgislered South African close corporation, the court granted interim relief on an application brought by the deregistered corporation and its sole member.

52. However, while this may lead to the conclusion that there is no insuperable difficulty in the way of recognising the entitlement of one or both of the applicants to claim interim relief, the question remains whether a case for relief has been made out. The analysis which I have undertaken rests entirely on the interest that AIL and La Scala have in the claimed relief by virtue of the potential restoration of AIL to the Guernsey register. In a sense, their standing, their right and their apprehended harm are all bound up in the prospective restoration of AIL to the register. If. for example, they were to have said that they had no intention of seeking AIL's restoration, they would plainly not be entitled to relief. It seems to me lhat they need to make out a prima facie case that they will obtain the prospective relief in Guernsey on which the revesting of the helicopters in AIL wholly depends. This means that they must satisfy the court that they genuinely intend to seek restoration and that prima facie the restoration will be granted.

53. The applicants knew by 6 June 2011 at the latest that AIL had been struck from the register. They claimed in their founding papers of 8 June 2011 that they intended to bring a restoration application as a matter of urgency. This court's order of 22 June 2011, with its provision for supplementary affidavits to be filed on the question of the progress of the restoration application, was a reminder of the importance of this aspect. Yet more than two and a half months later a restoration application has still not been issued. It appears from the affidavits of La Scala and his South African attorney dated 24 August 2011 that the applicants have had cash flow difficulties and have thus struggled to put their South African attorneys in funds to enable them properly lo represent AIL and La Scala in the pending action, the security application and the interdict application. La Scala has also allegedly battled to find the money for the restoration application in Guernsey. He has not said when he learnt that the anticipated costs would exceed £30 000 and for how long he has been trying lo raise the money. He has also not disclosed what reasons he was given by his lawyers for the increased cost nor is there any further affidavit from Mr Fricdlandcr in that regard.

54. Although La Scala now claims to have secured the finance, he says he is still waiting for it lo be credited to him. He has provided no details of the source of the funding or why it has not yet been received. I would have expected him to do so, particularly given the serious allegations levelled at him by LCM regarding his alleged deception and unreliability in connection with their fees. Those allegations have not yet been tested at trial, but in the light of the distrust and acrimony between the parties La Scala could have been expected to provide corroborative evidence that his latest version is truthful and that he is not merely playing for lime. And even on La Scala's own version there is no undertaking that the restoration application will be instituted in the very near future. He seems to envisage that it might take a few months before the application is launched.

55. In short, the applicants have not provided satisfactory evidence of a genuine and concerted intention to pursue a restoration application for which they have the requisite funds. Then there is the further consideration that restoration is not simply there ibr the asking. Notice of the application has to be given to the Registrar of Companies in Guernsey, HM's Procureur and HM's Receiver-General. The Guernsey court will be entitled to give other persons, including creditors, an opportunity lo make representations. In terms of s371(3) of the Guernsey Law the court, in deciding whether to restore a company, is enjoined to have regard lo whether the restored company would satisfy the solvency test; the circumstances in which it was struck off; whether there were persistent or gross violations of the Guernsey Law in respect of the company; whether the company was used for fraudulent purposes; whether restoration would jeopardise Guernsey's reputation as a financial centre; and whether in general it would be just and equitable to restore the company to the register.

56. Mr Friedlander, whose firm is apparently to be engaged in the restoration application, said in his affidavit of 20 June 2011 that he had not yet consulted with La Scala. Such a consultation was planned for the very-near future but there is no evidence as to whether in the event it took place. Mr Friedlandcr stated that until he consulted he could not give a firm indication of the merits of the proposed restoration application or the time it would take. lie said thai full disclosure of all relevant facts would have to be made to the Guernsey court. It appears from the papers in the present matter that in March 2010 La Scala was arrested or at least questioned in Italy in regard to the suspected use of AIL's aircraft in arms trafficking. LCM has intimated its intention to make adverse representations in any restoration application lhat All. might bring, llie restoration application, if it is brought, would thus seem to be far from run-of-the-mill. The papers in the present case do not provide a proper basis for assessing the strength of the proposed application.

57. In the circumstances, the applicants' case for an interdict, resting as it docs on their interest flowing from the prospective restoration of AIL to the register of companies in Guernsey, asserts a case which in my view is open to more merely than "some doubt" (cf LA WSA op cit §404).

58. Even if the applicants passed the prima facie case hurdle, I would refuse an interim interdict in the exercise of my discretion (sec LAWSA op cit §408). The applicants' case, as noted, is open to doubt. They did not comply with the directions of this court in regard to their supplementary' affidavit. I do not think that by refusing relief the applicants' prospective interest in the helicopters, such as it is. is likely to be greatly harmed. The refusal of the interdict al Ihe applicants' instance by no means implies that LCM has any right to deal with the helicopters. On the contrary, this judgment contains a clear expression of my opinion that LCM would be acting unlawfully in several respects by so doing. This unlawfulness is independent of any interest the applicants may or may not have in the preservation of the helicopters. In the light of this judgment I have no reason to suppose that LCM, as a firm of attorneys who are officers of the court, would be so foolhardy as to persist in their threatened self-help. In any event, the sheriff is an officer of this court and currently has the helicopters under attachment by virtue of an order of this court. I intend to direct the registrar to bring this judgment to the sheriffs attention so that he may take whatever steps he considers appropriate to ensure that the helicopters remain under his effective attachment. (This docs not mean that the helicopters have to remain at their current location in Gordon's Bay. The attachment order does not impose such a requirement. The sheriff may make other arrangements for the storage of the helicopters if he is so minded.)

59. As noted earlier, the applicants' attitude in La Scala's latest affidavit and through counsel at the hearing was that the interdict application should be postponed so that HM's Receiver-General could he joined. Mr I larrington did not press this point at the hearing. If the applicants considered that the Receiver-General should have been joined they should long-since have taken steps to effect the joinder. They and not LCM arc the applicants. Mr Friedlander's affidavit of 20 June 2011, which they themselves filed, stated that the helicopters vested in the Crown represented by the Receiver-General. The refusal of the applicants* application does not impair the Crown's rights in any way. The Crown through the Receiver-General is at liberty lo initiate whatever proceedings it might think necessary to protect its ownership of the helicopters. (Since I have in any event decided to refuse the application, it is unnecessary to decide whether the Crown's joinder would have been necessary for the granting of the interdict, though I doubt that such joinder would have been necessary: the mere preservation of the helicopters under an existing attachment authorized by the court would not appear to have any potential to prejudice the Crown's rights.)

Conclusion

60. On 30 August 2011. i.e. the day following argument, there was delivered to my chambers an affidavit by a Mr Fox on behalf of the SFT (the second respondent) regarding proceedings in which SFT is being sued tor rental and eviction from the Gordon's Bay property where the helicopters arc being stored. This affidavit appears to have been designed to persuade me that it would be unjust to grant an interdict in the terms sought by the applicants. In the light of the order I intend to make it is not necessary to say more than that I do not sec any justification for the late submission of Mr Fox's affidavit.

61. If in due course the applicants believe they can establish a prima facie case that a restoration application will succeed, and if LCM is at that time still threatening to deal unlawfully with the helicopters, this judgment will not preclude the applicants from approaching the court again for relief.

62. LCM has intimated its intention to oppose AIL's restoration in Guernsey. LCM is free to act as it thinks best. I should observe, though, that if AIL is not restored to the register the consequence would appear to me to be that LCM will not be able to obtain a judgment against AIL in the action or levy execution on the helicopters (though as noted earlier I do not finally decide that question). The attached helicopters would have to be returned to their lawful owner (whether the Crown or the South African Government). From LCM's perspective this strikes me as somewhat counter-productive.

63. If in due course il becomes apparent for any reason thai ihe action cannot be pursued to finality and that the reason for the attachment has fallen away, the sheriff will, if there is uncertainty as to who is entitled to be placed in possession of the helicopters, be free to issue an interpleader summons or approach the court for directions.

64. Although 1 intend to refuse the application, 1 do not think in the peculiar circumstances of this case that LCM should be granted costs against the applicants. Although in the event the applicants have failed to establish their own right to obtain relief, their application has brought to the court's attention a threatened violation of an attachment authorised by an earlier order of this court. LCM had no right to sell or threaten to sell the aircraft. Given that LCM's unlawful conduct precipitated the application and that this judgment is likely to have a salutary effect in reminding LCM and the sheriff of their respective rights and duties, I think it would be just that the parlies bear their own costs.

65. I thus make the following order:

(a) The application is dismissed.

(b) The parties are lo bear their own costs, including all costs reserved in the earlier orders made in this application.

(c) The registrar is directed to bring this judgment to the attention of the sheriff so that the latter may take such steps as he considers appropriate to ensure that the helicopters attached under this court's order of 10 June 2010 remain under his effective attachment.

ROGERS AJ

2 SEPTEMBER 2011

1In South Africa see, e.g.. Silver Sands Transport (Ply) ltd v SA Linde (Ply) Ltd 1973 (3) SA 548 (W): Broughtvn v Manicaland Air Services (Pvt) ltd 1972 (4) SA 458 (R); G Walker Engineering CC tla Atlantic Steam Services v First Garment Rental (Ply) ltd (Cape) f20II) ZAWCHC 261. This would be in accordance with the statement in Barclays National Bank ltd v Iraub; Barclays National Bank ltd v Kail 1981 (4) SA 291 (WJ thai the liabilities of a company arc not extinguished by deregistration bul are rendered unenforceable while it is derecistered (295D). For the similar position in England, sec Hukbury's laws of England4th Fd (Reissue) Vol 7(4) §932.

2On the constitutional status of Guernsey as a Crown dependancy. see Halsbury's Lawn of England 5th CdVol 13 §§790ff.

3I refer here to the position that pertained as from 1978. Prior thereto our company legislation, as in tngland. permitted the deregistered company itself lo apply for restoration - see Blackman op cii p4-175 fn 11.

4See also Mobile Telephone Networks Holding (Pry) Ltd v Knoetze (2006) 27 ILJ 986 (LAC) paras 27-31. In National Gambling Board v Premier of Kwazulu Natal Others [2001] ZACC 8; 2002 (2) SA 715 (CC) the court held with reference lo Airoadexpress that interim relief could he granted even though the final relief could only be determined by another forum (para 49).