Cheong Ka Hei v. Chan Maria Olimpia Oi Ling and Another

HCCW 38/2018

[2019] HKCFI 1142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING‑UP) PROCEEDINGS NO 38 OF 2018

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D E C I S I O N

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1.This is an application by the petitioner for permission to join Kada International Investment Limited (“Kada”) as the 3^rd respondent in these proceedings and to re‑amend the petition consequentially.

2.The matter seems to me to be entirely straightforward, for Kada is the holder of 50.01% of the issued share capital of Bloom Property Development and Investment Limited, the company in question.  Kada is said to be under the control of the 1^st respondent who was a director of the company with whom the petitioner was allegedly in quasi‑partnership and against whom various allegations are made in the petition.

3.Kada’s shares in the company are the subject matter of one of the prayers for relief, namely, the order that those shares be purchased by the petitioner at a fair price to be determined.  In the circumstances, Kada is clearly a proper and necessary party and may properly have been named as a party from the outset.

4.The 1^st respondent, however, opposes the application at least in the affirmation and in Mr Wong’s skeleton.  Her affirmation appears to suggest that with the addition of Kada, she herself should be removed as a respondent.  And at the end of the affirmation, she asks the court to refuse the application in full or grant the amendments with modifications. 

5.This seems to me to be misconceived.  This is not an application by the 1^st respondent to strike out parts of the petition.  In any event, the addition of Kada does not render the 1^st respondent not a proper party to the petition given the central role she has played in the conduct of the affairs of the company; see Re Kandara Limited (HCMP 1619/2004, 17 October 2005), paragraph 7.

6.As to the specific proposed amendments objected to by Mr Wong on behalf of the 1^st respondent, it seems to me the addition of the phrases referring to the 3^rd respondent in prayer (1) and prayer (2) is appropriate:in the case of prayer (1), because the shares are indeed held in the name of Kada; and in the case of prayer (2), the amendment is actually necessary on Mr Wong’s case because he submitted that an order requiring a person to purchase the petitioner’s shares in the company can only be made against a member of the company.

7.Mr Wong on behalf of the 1^st respondent even objected to the application for an order that the advertisement of the re‑amended petition be dispensed with, querying whether the court has any power to do so under rule 24 of the Companies (Winding‑up) Rules.  But the petition has already been advertised.  What is being sought is simply dispensation with any need for a re‑advertisement upon the relatively minor amendment, which seems to me not only within the power of the court but also entirely sensible to grant. The same applies to Mr Wong’s objection to an order dispensing with the need for a further verifying affidavit of the re‑amended petition.

8.For these reasons, I will make an order that:

(1)  leave be granted to join Kada International Investment Limited as the 3^rd respondent in these proceedings;

(2)  leave be granted to the petitioner to re‑amend the amended petition refiled herein on 26 April 2018 as per the draft annexed to the petitioner’s summons dated 21 May 2018 with the further deletion of the words “by the 1^st respondent” in prayer (1);

(3)  service of the re‑amended petition on the 1^st and 2^nd respondents be dispensed with;

(4)  advertisement of the re‑amended petition be dispensed with; and

(5)  filing of a further verifying affidavit for the re‑amended petition be dispensed with. 

9.I will order that the 1^st respondent do pay to the petitioner the costs of and relating to the application for joinder and amendment incurred after 23 May 2018.

Mr Richard Leung and Mr Tommy Cheung, instructed by Kwok, Ng & Chan, for the Petitioner

Mr Wong Chao‑wai Brian, instructed by Simon Si & Co, for the 1^st Respondent