Ko Tak Wing v. The Secretary for Justice and Another

HCMP004053/2003

HCMP 4053/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4053 OF 2003

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Coram: Hon Barma J in Court

Date of Hearing: 9 October 2003

Date of Decision: 9 October 2003

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D E C I S I O N

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1.This is an application by Motion dated 16 September 2003 by the former liquidator of Chan Brothers Investment Company Limited ("the Liquidator") seeking an order that the dissolution of the Company on 18 June 2000 be declared void pursuant to s. 290(1) of the Companies Ordinance (Cap. 32).

2.As the application is brought more than 2 years after the date on which the Company was dissolved, the Notice of Motion also seeks an extension of the period of 2 years within which such an application should ordinarily be brought.

3.The evidence showed that the Company was placed into members voluntary liquidation on 22 December 1999 with net assets of some $5,800.01. The final meeting of members was held on 13 March 2000 and a return of such meeting was filed by the Liquidator with the Companies Registry on 18 March 2000. The Company was therefore dissolved 3 months later on 18 June 2000 in accordance with s. 239(4) of the Ordinance.

4.More than 2 years after the dissolution of the Company, the Liquidator was approached in July last year by solicitors who informed him that they had a client who wanted to purchase from the Company a property known as Motor Vehicle Parking Space No. 3 on the ground floor of Ngai Sheung Factory Building, No. 13 Elm Street, Kowloon, Hong Kong.

5.As a result of the approach, it came to light that the Company was still the registered owner of the property. Steps were then taken by the Liquidator, with the assistance for one of the former directors of the Company, to ascertained the wishes of the shareholders in relation to the property, and to try to reach agreement with the prospective purchasers in relation to terms of sale. This turned out to be a time consuming process as 2 former shareholders had died and another is now living aboard.

6.The Liquidator has said that he was not aware that the Company owned the property in question at the time of liquidation. This was because it was not referred to in the Company's latest audited accounts prior to the liquidation, and the shareholders had also informed him that the Company had no real property assets.

7.His enquiries of the shareholders revealed that the directors of the Company were apparently unaware that the property was still owned by the Company, which was, in fact, the developer of the Ngai Sheung Factory Building, because they believed the Company had in fact sold and disposed of all of its interest in the building many years ago.

8.If the declaration sought is not made, the property will be bona vacantia and will vest in the Government, and the Company and its members will be deprived of it.

9.Given the Government's interest in the matter, the Secretary for Justice and the Registrar of Companies have been joined as Respondent to these proceedings. Neither has appeared before me today, as they have both indicated in correspondence that they have no objection to the relief sought being granted, subject to provision being made for their costs.

10.As a matter of merits, it seems to me that the application is clearly justified as it will enable the Company to realize the property, which belongs to it, for the benefit of its members.

11.So far as an extension of time is concerned, having regard to the fact that the existence of the property did not come to light until after the expiry of the 2-year period, the difficulty in ascertaining the members' wishes as to whether and how to proceed, and the fact that the application is not opposed, I am satisfied that exceptional circumstances exist justifying an extension of the period of 2 years mentioned in s. 290(1) of the Ordinance. I therefore extend that period to enable this application to be made and will make a declaration in the terms sought.

12.Minutes of order have been helpfully prepared by counsel appearing for the Company, and I therefore make an order in terms of those minutes subject to minor amendment.

Representation:

Mr Simon Ho, instructed by Messrs Lam, Lee & Lai, for the Applicant

No appearance for the 1st and 2nd Respondents