October 12, 2022
Under BVI insolvency law a winding-up application must be determined within six months, a period which can be extended prospectively but not retrospectively. If time expires the winding-up application is by statute deemed dismissed. In a recent judgment, the BVI High Court (Wallbank J) decided what should be done when a winding-up application is deemed dismissed in the period between the hearing and the (purported) making of a winding-up order. In a case where this had happened the company applied to the Judge to set aside or permanently stay the order on the basis that it had been made without jurisdiction. The applicant creditor responded by applying under the “slip rule” in effect for a retrospective extension of time, which is the approach adopted in some Australian jurisdictions with similar legislation. The Judge dismissed both applications, holding that the slip rule could not be used to obtain a retrospective extension of time and that the company’s correct course was to appeal the winding-up order, albeit the appeal was a foregone conclusion. Hermann Boeddinghaus KC and Andrew Rose act for the company, Vidatel Limited. The judgment usefully discusses the circumstances in which a court may set aside its own order and the law on the BVI “slip rule”.
Download the judgment.