Decision

Decision on BMW Essex Ltd

Updated 13 March 2024

Order under the Companies Act 2006

In the matter of application No. 4230

For a change of company name of registration No. 09030097

Decision

The company name BMW ESSEX LTD has been registered since 10 October 2022 under number 09030097. Prior to this, the company was called AMT AUTOS LTD incorporated on 8 May 2014.

By an application filed on 3 March 2023, BAYERISCHE MOTOREN WERKE AG (‘BMW’) 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 16 March 2023, 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. It was returned. On 16 March 2023, the Tribunal wrote to Balys Virsutis to inform him that the applicant had requested that he be joined to the proceedings. The letter sent to Balys Virsutis by Royal Mail “Signed For” service was returned “addressee gone away”. No comments were received from Balys Virsutis in relation to this request. On 4 May 2023, Balys Virsutis was joined as a co-respondent. On 4 May 2023, the parties were advised that no defence 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. The letters sent to the primary respondent and co-respondent by Royal Mail “Special Delivery” were returned “refused”. The letter sent to the co-respondent by standard mail was also returned. No request for a hearing was made.

On 8 June 2023, the Tribunal advised the parties that a court order to wind up company no. 09030097 had been issued and as the status of the company on the Companies House register was recorded as “liquidation”, the Tribunal intended to suspend the proceedings for a period of three months. The parties were asked to state whether they agreed to the suspension and, if they objected to the suspension, they were asked to provide reasons for their objection. The letters sent to the primary respondent and co-respondent by Royal Mail “Special Delivery” were returned “addressee gone away”. The letter sent to the primary respondent by standard mail was also returned. In the absence of any responses on 13 July 2023, the parties were advised that the proceedings were suspended for a period of three months. The letters sent to the primary respondent were returned and the letter sent to the co-respondent by Royal Mail “Special Delivery” was also returned.

On 7 November 2023, following a review of the case, the parties were advised that given the amount of time that had elapsed since the proceedings were suspended and the fact that the status of the company had remained unchanged, it was the adjudicator’s preliminary view to proceed to issue a decision containing an order to change the name of the company. The parties were reminded that as stated in official letter dated 4 May 2023, as no CNA 2 had been filed within the time period set, in accordance with Rule 3(4) the adjudicator may treat the application as not being opposed and may make an order under section 73(1) of the Companies Act 2006. 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.

It was subsequently noted that the letter sent to the primary respondent dated 7 November 2023 had been addressed in error and as such, on 9 November 2023 the letter was re-issued and the parties were given a further period of 14 days to request a hearing in relation to this matter, if they so wished. No request for a hearing was made.

The primary respondent did not file a defence within the one 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) BMW ESSEX 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) BMW ESSEX LTD and Balys Virsutis 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.

BAYERISCHE MOTOREN WERKE AG (‘BMW’), having been successful, is entitled to a contribution towards its costs. I order BMW ESSEX LTD and Balys Virsutis, being jointly and severally liable, to pay BAYERISCHE MOTOREN WERKE AG (‘BMW’) costs on the following basis:

Fee for application: £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.

Dated 5 December 2023

Susan Eaves
Company Names Adjudicator

1. An “offending name” means a name that, by reason of its similarity to the name associated with the applicant in which he claims goodwill, would be likely to be the subject of a direction under section 67 (power of Secretary of State to direct change of name), or to give rise to a further application under section 69. ↩