Decision

Decision on Colas Asphalt Limited

Updated 19 October 2018

Order under the Companies Act 2006

In the matter of application No. 1601

For a change of company name of registration No. 10902685

Decision

The company name COLAS ASPHALT LTD has been registered since 7 August 2017 under number 10902685.

By an application filed on 16 November 2017, Colas Limited 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 1 December 2017, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008. The copy of the application was sent by Royal Mail special delivery. It was returned “not called for”. A copy of the application was then sent by ordinary post. On the same date, the Tribunal wrote to Mr Elliott Crawford Brown to inform him that the applicant had requested that he be joined to the proceedings. No comments were received from Mr Brown in relation to the request that he is joined as co-respeondent. Therefore, on 12 March 2018 he was joined as a co-respondent.

It was also noted that the respondent changed its address with Companies House and so a copy of the application was sent to the new address on 11 January 2018. This was returned “not called for”.

On 15 May 2018 the tribunal wrote to the respective parties (as well as Mr Brown) stating that it is noted that the respeondent had filed Form NM01 for a change of name to ROOFLINE UK SYSTEMS LIMITED. The applicant was invited to make comments on this new non-offending name. On 21 May 2018, the applicant responded. It stated that having enquired with Companies House it became apparent that whilst the request of change of name was filed, the respondent had not filed a copy of he resolution which is necessary for the name change to be actioned. In view of this, the applicant requested that the application proceeds as ‘un-defended’ and an order to this effect is issued.

On 28 June 2018 the tribunal wrote to the respondent requesting confirmation that the necessary steps were taken to complete the change of name process. The respondent was advised that if no response is received then it is the preliminary view that, 1) an order (as requested by the applicant) would be issued, and 2) a cost award of £800 would be issued against the respondent and Mr Brown. No response was received.

In view of the above and due to the primary respondent not filing a defence within the period specified by the adjudicator under rule 3(3) an order is appropriate. 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) COLAS ASPHALT LIMITED shall change its name within one month of the date of this order to one that is not an offending name^{[footnote 1]};

(b) COLAS ASPHALT LIMITED and Elliott Crawford Brown each shall:

(i) take such steps as are within their power to make, or facilitate the making, of that change;

(ii) not to 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.

Colas Limited, having been successful, is entitled to a contribution towards its costs. I order COLAS ASPHALT LTD and Elliott Crawford Brown, being jointly and severally liable, to pay £800 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 6 August 2018

Mark King
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. ↩