Tang Kam Yip and Otners v. Yau Kung School and Others

HCMP000292/1983

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

BETWEEN

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Coram: Hon. Mantell J.

Date of Hearing: 21st November, 1983.

Date of Judgment: 21st November, 1983.

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JUDGMENT

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1. The 1st defendant is a school in the New Territories. The plaintiffs are each members of the school which is limited by guarantee and I have been referred to the Articles of Association. On 27th August 1982, there was a directors meeting at the school at which by resolution, the meeting purported to remove from the Register of Members all four of the plaintiffs and to replace them by four other individuals, each of whom is a defendant in this action. The other defendants are various village representatives who have only played a part in this hearing insofar as it was they who put forward the names of the replacements to the four plaintiffs. The plaintiffs object to their removal and this action comes about as a result of the plaintiffs' efforts in the first place to have the names restored to the Register of Members and secondly to obtain certain other relief.

2. The manner in which a member can be removed from the Register of Members is governed by the Articles of Association and it is sufficient for me to say in this short judgment at the end of what has been a relatively short hearing, that one of the means by which members can be removed is not by resolution as was purported to be done here. That was realistically acknowledged by Mr. Neo who appears for all, the defendants when at the beginning of the hearing, he made certain concessions which have been reduced to writing. Indeed, the action was all but disposed of by consent because Mr. Neoh indicated at the outset that he was prepared to submit to a number of declarations and orders which I shall, in due course, be making by consent. And later, during the hearing, Mr. Neoh expressed himself willing to give an undertaking as to a matter which has, I think, caused Mr. Cheung some concern. All that really remains for me to decide is whether or not I have jurisdiction to declare that the four replacements, whose names I shall not attempt to list, are not members by virtue of the resolution to which I have referred. It was necessary for me to see the resolution, although Mr. Neoh at one time submitted that it was either not necessary or desirable or right that I should see it because the question of principle was capable of resolution without reference to the terms of the resolution, but in fact, I have been assisted by seeing the terms of the resolution and as things have turned out not to Mr. Neoh's disadvantage. The resolution in English translation or the relevant parts of it are these:

I am told that in a further resolution to which I have not been referred because it is not in the bundle in translation, the fourth so far unmentioned plaintiff was similarly replaced by another individual. Well, I do not find that it is within my jurisdiction to make any pronouncement other than that which directly affects the rights of the plaintiffs themselves and I would be going outside my jurisdiction, on authority to which I have been referred by Mr. Neoh if I purported to make any declaration affecting the position of the four defendants whose names presently appear on the Register of Members. But having seen the. Articles of Association and having heard argument, I am satisfied as is, indeed, conceded that the purported removal of the plaintiffs by the two respective resolutions, the one of 27th August 1982 and the other. Of 31st January 1983 was ultra vireos the Articles of Association and further than that, I do not need to go. So if I am asked to make it in addition to those declarations and orders which have been agreed, my declaration would be that the resolutions respectively are null and void and of no effect insofar as they purport to remove from the membership of the 1st defendant, the names of the plaintiffs to whom they refer. I make it plain that there is no implication to be made from what I have said one way or the other as to the lawfulness or otherwise of the appointment of the four, defendants concerned as members in addition to the plaintiffs. Indeed, I am told and I accept that a resolution was passed yesterday purporting to appoint those four individual members of the school and once again I deliberately express no view as the lawfulness or otherwise of that resolution although I understand that it may give rise to litigation in the future. Even had I accepted jurisdiction, it is unlikely that I would have made any declaration in the terms requested because it seems to me that any such declaration would have had very little practical effect.

3. I propose, therefore, by consent to make the declarations and orders which have been reduced to writing and if asked, the further declaration which I have mentioned in my judgment. All will depend upon the undertaking given by Mr. Neoh during the hearing. Therefore, by consent and upon the 1st defendant undertaking through counsel that for so long as the Articles of Association of, the 1st defendant remain unchanged, the 1st defendant will not seek to use resolution 11(c) of 27th August 1982 to remove the plaintiffs or any of them from the Register of Members of the 1st defendant. And without prejudice to the plaintiffs' rights, if any, to contest the lawfulness of the addition to the Register of Members of Tang Yuk Kei, Tang Tin Yen, Tang Shui Tim and Tang Wai Hung and any other person and further without prejudice to the plaintiffs' rights, if any, to contest the lawfulness of the resolutions dated 27th August 1982 and 31st January 1983 of the 1st defendant and on any other matter, I hereby order and declare:

4. For the avoidance of doubt, the plaintiffs' costs are to be met by the 1st defendant.

Representation:

Peter Cheung (Philip K.H. Wong & Co.) for Plaintiffs.

Anthony Neoh (M.K. Lam & Co.) for Defendants.