Eastbrook BV and Eastbrook AG v Cooper, Lines, Butterfield and Madeiros 1994 Civil Appeal No. 11
| Jurisdiction | Bermuda |
| Judgment Date | 01 July 1994 |
| Date | 01 July 1994 |
| Docket Number | Civil Appeal No. 11 of 1994 |
| Court | Court of Appeal (Bermuda) |
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
Roberts, P.
Huggins, J.A.
Georges, J.A.
Roberts, P.
Huggins, J.A.
Georges, J.A.
Civil Appeal No. 11 of 1994
Appeal No. 11 of 1994
and
and
Mark Diel for the appellants.
Geoffrey Bell Q.C. for the respondents.
Sabatier v Trading Co.ELR [1927] 1 Ch 495
Companies Act 1981, s. 147
Application to set aside service within the jurisdiction — Overseas companies — Permit company — Cancellation of permit — Representative to accept service — Place of business — Statutory construction
Roberts. P.
On 5th April, 1994, the judge gave his reasons for dismissing the applications of Eastbrook B.V. (‘D2’) and Eastbrook A.G. (‘D3’) for an order, under 0. 11 r. 8 of the Rules of the Supreme Court, that the service of a writ issued by the Respondents (‘Cooper’) and all subsequent proceedings be set aside.
Cooper's summons was dated 8th. March 1994, and sought relief on the following grounds—
(a) Eastbrook A.G. and Eastbrook B.V. are companies which have withdrawn their activities from Bermuda and had cancelled their permits under section 134 of the Companies Act with effect from 31st December, 1993 and so were not, at the time of the purported service of the writs of summons, permit companies within the definition of the Companies Act and accordingly they did not have a place of business within the jurisdiction of the Supreme Court of Bermuda.
(b) The purported service of the writ on Eastbrook A.G. and Eastbrook B.V. was bad and contrary to the provisions for service on a company under s.62A of the Companies Act, 1981 and contrary to the provisions for service on an overseas company under s.147 of the Companies Act 1981 in that the writ was not served in accordance with the rules for service set out in s.147(2).
(c) In the alternative, the purported personal service of the writ on Eastbrook A.G. and Eastbrook B.V. was bad and contrary to Order 65 of the Rules of the Supreme Court of Bermuda, in that the writs were handed to a legal secretary and not to any officer of either company.
(d) In the alternative, the writs when purportedly served, were enclosed in an envelope when neither Eastbrook B.V. nor Eastbrook A.G. nor their attorney had any knowledge that an action had been commenced against all or any of them.
(e) Accordingly the Court has no jurisdiction to entertain an action against either Eastbrook A.G. or Eastbrook B.V. since they have not been duly served with the writ and leave has not been obtained by the plaintiff pursuant to Order 11 to serve either of the Defendants Eastbrook B.V. and Eastbrook A.G. out of the jurisdiction.
The first defendant, Eastbrook Limited (‘D1’), is a company registered in Bermuda. It is agreed that it is amenable to service. It has entered a memorandum of appearance.
On 3rd May, 1994. the judge granted leave to appeal against his decision of 5th April. He refused to grant a stay pending appeal. The appeal against the first decision comes before us.
These were set out by D2 and D3 in a Notice of Motion for Leave to Appeal, dated 18th April, 1994.
‘(1) The judge erred in construing S.147(2) of the Companies Act 1981 to apply to permit companies and/or overseas companies registered after 1st August, 1983.
(2) (i) The judge failed to read s.147(2) literally.
(ii) The judge failed to interpret the wording of the legislation ‘on its face’.
(iii) The judge ‘tinkered’ with the legislation.
(3) The judge failed to take into account, properly or at all, the effect of the revocation of a permit. based on the company ceasing to engage in or carry on any trade or business in Bermuda, on those listed as authorized to accept service pursuant to S.142(4) as read with S. 142(3)(iv).
(4) The judge erred in relying on Rome v. Puniab and Sabatier v. Trading Company, while failing to take account of the distinction between the Bermuda and English statutory schemes.
(5) The judge erred in stating that the service provisions of section 147(2) were expressly intended to apply to departed companies.
There...
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