Order under the Companies Act 2006
In the matter of application No. 3837
For a change of company name of registration No. 13720629
Decision
The company name TK MAXX MOBILE LTD has been registered since 3 November 2021 under number 13720629.
By an application filed on 29 March 2022, TJX UK applied for a change of name of this registration under the provisions of section 69(1) of the Companies Act 2006 (the Act).
A copy of this application was sent to the primary respondent’s registered office on 22 April 2022, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008. The copy of the application was sent by Royal Mail “Signed For” service and also by standard mail. On 22 April 2022, the Tribunal wrote to Andres Arroyo to inform him that the applicant had requested that he be joined to the proceedings. No comments were received from Andres Arroyo in relation to this request. On 4 July 2022, Andres Arroyo was joined as a co-respondent. On 4 July 2022, the parties were advised that no defense had been received to the application and so the adjudicator may treat the application as not being opposed. The parties were granted a period of 14 days to request a hearing in relation to this matter, if they so wished. No request for a hearing was made.
In response, the applicant in their email dated 14 July 2022, referred to the request made by the Tribunal that it must copy all correspondence to the co-respondent within 14 days of the date of the letter stating:
1. There is no address listed for Mr. Arroyo at Companies House; and 2. As explained in box 16 of the Applicant’s Form CNA1, the Company is falsely adopting the Applicant’s previous registered office address as its registered office (50 Clarendon Road, Watford, England, WD17 1TX). The Applicant is continuing to receive post sent to this address and it has recently received the attached letter the Tribunal sent to the Company on 4 July 2022. If further documents are sent to this address, they will be received by the Applicant, and not the Company or the Co-Respondent.
The primary respondent did not file a defense within the two month period specified by the adjudicator under rule 3(3). Rule 3(4) states:
The primary respondent, before the end of that period, shall file a counter-statement on the appropriate form, otherwise the adjudicator may treat it as not opposing the application and may make an order under section 73(1).
Under the provisions of this rule, the adjudicator may exercise discretion so as to treat the respondent as opposing the application. In this case I can see no reason to exercise such discretion and, therefore, decline to do so.
As the primary respondent has not responded to the allegations made, it is treated as not opposing the application. Therefore, in accordance with section 73(1) of the Act I make the following order;
(a) TK MAXX MOBILE LTD shall change its name within one month of the date of this order to one that is not an offending name; [footnote 1]
(b) TK MAXX MOBILE LTD and Andres Arroyo each shall:
(i) take such steps as are within their power to make, or facilitate the making, of that change;
(ii) not cause or permit any steps to be taken calculated to result in another company being registered with a name that is an offending name.
In accordance with s.73(3) of the Act, this order may be enforced in the same way as an order of the High Court or, in Scotland, the Court of Session.
In any event, if no such change is made within one month of the date of this order, I will determine a new company name as per section 73(4) of the Act and will give notice of that change under section 73(5) of the Act.
All respondents, including individual co-respondents, have a legal duty under Section 73(1)(b)(ii) of the Companies Act 2006 not to cause or permit any steps to be taken calculated to result in another company being registered with an offending name; this includes the current company. Non-compliance may result in an action being brought for contempt of court and may result in a custodial sentence.
The applicant is requesting its costs. In response to question 7. of Form CNA1: “Did you warn the company that if it did not change its name that you would start legal proceedings against it? If ‘yes’, when did you warn the company?” the applicant states:
No, but the Applicant has good reasons for not doing so as detailed at point 16.
In response to question 16 of Form CNA1: “Please provide any other relevant information you may have that you consider relevant to this application”. The applicant states:
Between 8 November 2000 and 8 July 2021, the Applicant’s registered office was at 50 Clarendon Road, Watford, England WD17 1TX….. the Company has falsely adopted this address as its registered office to mislead consumers into believing the applicant and the Company are connected . The Applicant’s current registered office remains on the same road at 73 Clarendon Road, Watford, Hertfordshire United Kingdom WD17 1TX…..On incorporation of the Company, Mr Arroyo listed his correspondence address as 10 Snow Hill, London, England EC1A 2AL. This is the registered office of UK law firm, Travers Smith LLP. The Applicant suspects that Mr. Arroyo is not really present at this address and it notes that this correspondence address has since been removed (it is understood at the request of Travers Smith LLP) but not replaced. In the circumstances where no correspondence address is listed for Mr. Arroyo and the registered address of the company is likely to be false, the Applicant is not able to contact the company in advance of issuing the complaint. The Applicant submits that it should not be penalized on costs as a result of these facts.
Given the circumstances regarding the respondent’s registered address and the lack of a correspondence address for Mr Arroyo, the applicant’s decision not to contact the primary respondent before filing its application was not, in my view, unreasonable and ought not to prevent it from being awarded costs
I order TK MAXX MOBILE LTD and Andres Arroyo, being jointly and severally liable, to pay TJX UK costs on the following basis:
Application fee: £400
Statement of case: £400
Total: £800
This sum is to be paid within seven days of the expiry of the appeal period or within seven days of the final determination of this case if any appeal against this decision is unsuccessful.
Any notice of appeal against this decision to order a change of name must be given within one month of the date of this order. Appeal is to the High Court in England, Wales and Northern Ireland and to the Court of Session in Scotland.
The company adjudicator must be advised if an appeal is lodged, so that implementation of the order is suspended.
Date 19 August 2022
Susan Eaves
Company Names Adjudicator