Lucky Success Capitalinvestment Ltd v. Next Power Ltd and Others

HCMP 2246/2018

[2019] HKCFI 663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2246 OF 2018

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D E C I S I O N

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1.This is an application by originating summons for an order under sections 373 to 375 of the Companies Ordinance (Cap 622) for an order to allow the applicant, a director of the company, to inspect the company’s books and records.

2.It is undeniable and not denied that the originating summons and the applicant’s affirmation were served on the 2^nd and 3^rd respondents on 12 and 9 January 2019 respectively despite a typographical error in the action number stated in the covering letter to the 3^rd respondent.  No acknowledgement of service was filed by either the 2^nd or the 3^rd respondent until 25 February, and no opposing affirmation was filed until 26 February, that is, two days ago, by the 3^rd respondent on behalf of himself and the 2^nd respondent.

3.There is no explanation of the failure to respond to the proceedings until this very late stage in the affirmation.  Nor is Mr Kwong who appears for the two respondents this morning able to provide any valid excuse.  In these circumstances, I do not see why the hearing should be adjourned or the late affirmation of the 3rd respondent should be allowed to come in notwithstanding the failure to comply with Order 28, rule 1A(4).

4.In any event, despite that it is being said by the respondents now that the applicant has all along had access to the company’s books of accounts, the correspondence, which Ms Liu has taken me through, amply shows that there was no real response by the respondents to the applicant’s request for access to and inspection of the company’s documents.  It is not disputed that the applicant is a director of the company.  There is, in my view, no real ground shown for opposition to her access to the company’s documents.  In these circumstances, I will grant an order in terms of the originating summons. 

(Discussion re costs)

5.I will make an order for costs in terms of paragraph 3 of the originating summons.  It will be on the party‑and‑party basis if not agreed.

6.Liberty to apply.

Ms Michelle Liu, instructed by Johnnie Yam, Jacky Lee & Co, for the applicant

The 1^st respondent was not represented and did not appear

Mr Daniel Kwong, of Johnny K K Leung & Co, for the 2^nd and 3^rd respondents