DG Resources Ltd v The Commissioners for HMRC

Service of a winding-up petition at a company’s registered office may comply with Schedule 4 to the Insolvency (England and Wales) Rules 2016 where the petition is handed to a person who acknowledges authority to accept service. Actual authority is not required. Alternatively, depositing the petition so that it is likely to come to the attention of a person attending the office may suffice. The petitioner need not prove that it knew the petition would come to the company’s attention. A claimed tax rebate will not constitute a genuine and substantial cross-claim without evidence establishing the losses, relevant taxable profits or tax previously paid. Non-compliance with service or advertisement requirements does not automatically require dismissal where the petition was properly served, the company had adequate notice and suffered no material prejudice.

HMRC presented a petition to wind up DG Resources Ltd for a debt of £1,104,015.14. The petition was served at the company’s registered office, which had been changed by Companies House to a default address after the company failed to respond to a Regulation 6 notice concerning the appropriateness of its former address.

The company sought an injunction restraining advertisement and applied to strike out the petition. It argued that service was invalid because the petition had been handed to a receptionist rather than a director, officer or employee. It also relied on an alleged corporation-tax rebate and assigned claims as a cross-claim exceeding the petition debt. The central issues were whether service complied with the statutory service regime and whether the asserted cross-claim was genuine and substantial.

1. Service. The petition was validly served at the registered office shown on the Companies House register. Paragraph 2(1)(c) of Schedule 4 to the Insolvency (England and Wales) Rules 2016 permits service by handing the petition to a person who acknowledges authority to accept service on the company’s behalf. The Rules do not require proof of actual authority. Hannah’s acknowledgement was sufficient. Alternatively, paragraph 2(2) was satisfied because she was a person attending the office and had been handed the petition in a way capable of bringing it to notice.
2. The Companies Act 2006, the Registered Office Address (Rectification of Register) Regulations 2024 and Schedule 4 to the Rules created no relevant tension. A default address reduced the available methods of service, but did not prevent service at that address under paragraph 2(1)(c) or paragraph 2(2). The petitioner was not required to show that it knew the petition would actually come to the company’s attention. Section 86 supplied certainty by treating the registered address as the company’s official address for service.
3. The court distinguished the circumstances considered in Re Signland Ltd [1982] 2 All ER 609. Even if there had been non-compliance, the company had repeatedly been warned of the debt and threatened petition, had an agent communicating with HMRC, and had sufficient information to seek an injunction. The court would not exercise its case-management powers to dismiss the petition.
4. Cross-claim. The company produced no evidence substantiating the alleged losses, the calculation of the claimed rebate, relevant profits against which losses could be deducted under section 37 of the Corporation Tax Act 2010, or corporation tax previously paid. A partly completed CT600 was insufficient. There was no genuine and substantial cross-claim.
5. The injunction was discharged. The petition remained effective, and the parties were invited to agree an order.