Decision

Decision on Westpac Corporation Limited

Published 24 October 2024

Order under the Companies Act 2006

In the matter of application No. 4933

For a change of company name of registration No. 14706155

Decision

The company name WESTPAC CORPORATION LIMITED has been registered since 5 April 2024 under number 14706155. Prior to this, the company was called 14706155 LTD. from 9 November 2023 to 5 April 2024 and EFG INTERNATIONAL AG LTD incorporated on 6 March 2023.

By an application filed on 17 June 2024, WESTPAC BANKING CORPORATION 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 11 July 2024, 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” service and also by standard mail. On 11 July 2024, the Tribunal wrote to Barbarat Giuseppe to inform them that the applicant had requested that they be joined to the proceedings. No comments were received from Barbarat Giuseppe in relation to this request. On 28 August 2024, Barbarat Giuseppe was joined as a co-respondent. On 28 August 2024, 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. 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) WESTPAC CORPORATION 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) WESTPAC CORPORATION LIMITED and Barbarat Giuseppe 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 on the 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:

Not explicitly. We delivered a letter to both officers of the company at their correspondence address listed on UK Companies House on 28 May 2024, asking that they confirm within 15 days of receipt that the company’s name would be changed to a name not containing or similar to the WESTPC name. We have not had a response.

On 25 September 2024, the adjudicator issued the preliminary view that no award of costs would be made because although the applicant confirmed that it had contacted the respondent prior to filing its application, it did not warn the company that if it did not change its name it would start legal proceedings against it. The adjudicator referred to the wording of question 7 on the Form CNA1 which reads: “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 adjudicator noted that it is therefore implicit, that warning the company that if it did not change its name the applicant would start legal proceedings, is a requirement of notice within the form CNA1. The Tribunal therefore considered that the requirements of 10.4.1 of the Company Names Tribunal: Practice direction 2014 had not been met. The parties were granted a period of 14 days to request a hearing in relation to this matter, if they wished. No request for a hearing was made.

In accordance with 10.4.1 of the Company Names Practice Direction 2014, an award of costs will therefore not be made in this case.

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 17 October 2024

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. ↩