Decision

Decision on Kenkoh Footwear Ltd

Published 10 October 2019

Order under the Companies Act 2006

In the matter of application No. 1918

For a change of company name of registration No. 11556729

Decision

The company name KENKOH FOOTWEAR LTD has been registered since 6 September 2018 under number 11556729.

By an application filed on 16 January 2019, KENKOH EUROPE LTD 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 28 January 2019, 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 28 January 2019, the Tribunal wrote to Rola Sullivan and Desmond Sullivan to inform them that the applicant had requested that they be joined to the proceedings. No comments were received from Rola Sullivan and Desmond Sullivan in relation to this request. On 12 March 2019, Rola Sullivan and Desmond Sullivan were joined as co-respondents. On 12 March 2019, 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 these matters, if they so wished. No request for a hearing was made.

On 13 March 2019 the primary respondent filed form CNA7 (Appointment or change of agent or contact address) together with a Form CNA5 (Request for extension of time) seeking a retrospective extension of time of two weeks, from 28 February 2019 until 13 March 2019, in which to file form CNA2 (Notice of Defence). The reasons given for the retrospective extension of time were “The Company and its Directors were unable to receive, take advice on and respond to the application in time.” On 27 March 2019 the primary respondent was notified of the Adjudicator’s preliminary view that the information provided was not sufficient to allow the extension of time. The primary respondent was granted a period of 14 days in which to provide full and detailed reasons for the request. No response was received thereore, on 8 May 2019, the primary respondent was granted a final period of 7 days in which to provide a response. On 20 May 2019, the primary respondent filed further information to support their request for an extension of time.

On 5 June 2019, the primary respondent was notified that it was the Adjudicator’s preliminary view that the request be refused because the reasons provided were not sufficient to justify the granting of the retrospective extension of time. The primary respondent was invited to request a hearing within two weeks of the notification should they disagree with the preliminary view. No request for a hearing was made. On 22 August 2019, the primary respondent was notified that as no response had been received, the preliminary view to refuse the request for a retrospective extension of time was confirmed and the application would now be passed to an Adjudicator to consider making an order under Section 73(1) of the Companies Act 2006.

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) KENKOH FOOTWEAR 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) KENKOH FOOTWEAR LTD, Rola Sullivan and Desmond Sullivan 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.

KENKOH EUROPE LTD, having been successful, is entitled to a contribution towards its costs. I order KENKOH FOOTWEAR LTD, Rola Sullivan and Desmond Sullivan, being jointly and severally liable, to pay KENKOH EUROPE LTD 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 7 October 2019

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. ↩