Two parties to a charterparty fell into dispute. The defendant company had its registered office in the BVI. Two months after being served with proceedings in the BVI, the defendant company moved its registered office to Malta.
The claimant obtained judgment in default against the defendant company and petitioned in England to wind up the defendant company. The winding up order was granted but the defendant company successfully appealed the winding up order on the basis that its centre of main interests (“COMI”) remained in Malta and therefore the English Court had no jurisdiction to wind up the defendant company.
A company's COMI is where it conducts the administration of its interests on a regular basis and which is ascertainable by third parties. The rebuttable presumption is that a company's COMI is where the company's registered office is located.
On appeal, the Court found that the defendant company was entitled to move its registered office for self-serving reasons. However, the court would scrutinise such a move to establish if it was real or illusionary.
The court held that the focus of COMI is on where the defendant company's interests are administered, not where their business operations are conducted.
The court stressed the weight given to the presumption that the location of the registered office will be a company's COMI. This is because it is ascertainable to your typical third party creditor (through, for example, a public register) opposed to the claimant who in this case had access to further information by virtue of the previous litigation.
Melars Group Ltd v East-West Logistics LLP [2021] EWHC 1523 (Ch)
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