Hong Kong Korean Church Ltd. and Others v. Whang Eun-soo and Others

HCA008129/1993

1993, No. A7989 & A8129

SECTION 114B COMPANIES ORDINANCE (Cap.32)

- COURT ORDERED MEETING - MEANING OF THE WORD

PRACTICABLE

1993, No. A7989

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

___________

___________

1993, No. A8129

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

___________

___________

___________

Coram: The Hon. Mr. Justice Rogers in Chambers

Dates of hearing: 29, 30 September, 4, 5 & 6 October 1993

Date of judgment: 6 October 1993

_______________

J U D G M E N T

_______________

1. In this application, I have two summonses before me.

2. The first is from parties I shall call the Plaintiffs namely the Plaintiffs in High Court Action 7989. That is an application firstly for an injunction to restrain the 2nd Defendant from interfering with or obstructing or hindering the proper administration and/or management of the Hong Kong Korean Church. The second injunction was to restrain the 3rd to the 12th Defendants from whether acting by themselves or by their servants or agents or any of them or other wise howsoever from interfering with or obstructing or hindering the proper administration of the affairs and/or management with the 1st Plaintiff, the church, contrary to the Memorandum, the Articles and/or by Bye-laws of the 1st Plaintiff or by asserting or claiming to be a member of the Executive Committee of the 1st Plaintiff whether directly or indirectly or in any manner howsoever save where it is expressly authorized by the Executive Committee of the 1st Plaintiff in writing; and thirdly, an Order that the 1st Defendant do forthwith deliver up to the 2nd to 6th Plaintiffs all books and accounts belonging to the 1st Plaintiff which are under the custody power or control of him, his agent or servant.

3. The cross summons which in effect is by the Defendants in that Action but the Plaintiffs in High Court Action 8129 is first of all for an application under S.114B of the Companies Ordinance that the above named company do convene an extraordinary general meeting of its members on Sunday, October 31st to consider and to approve (with or without modifications proposed at the meeting) the following resolutions: First of all, (a) resolved as a special resolution that in order to resolve any question whether the following individuals, and that is Mr. Whang, Mr. Suh, Mr. Choe, Mr. Yoon and Mr. Lee are valid members of the Executive Committee constituted under the Articles of Association of the Hong Kong Korean Church Limited signed on 21st September 1982 are not valid members of the Executive Committee and to avoid any doubt are hereby removed, and (b) as an ordinary resolution that in order to resolve any question whether the following individuals, namely, Mr. Park, Mr. Kim, Mr. Kim, Mr. Jung, Mr. Kim, Mr. Lim, Mr. Chun, Mr. Hong, Mr. Kim and Mr. Kim are valid members of the Executive Committee, such individuals in accordance with the Companies Ordinance are hereby re-elected as members of the Committee.

4. After that there are consequential directions sought as to the holding of a meeting namely: it should be 21 days before the date has been appointed for the meeting and a notice convening the meeting should be posted to the adult baptized members of the congregation of the Church by the solicitors for the Plaintiffs in High Court Action 8129; a notice be issued in compliance with Article 61 of the articles, that it incorporate the text of the resolutions herein ordered or to be ordered and that the members to be made aware in the notice of their right to appoint a proxy by obtaining and delivering a form of proxy available in the manner to be indicated; then that there should be adequate security arrangements and/or personnel to be provided at the said meeting and that the 2nd to 12th Plaintiffs in Action 8129 and the Defendants should each nominate one person to act as chairman of the said meeting and there should be a vote of members of the 1st Plaintiff selecting one of the two nominees to act as chairman of the said meeting. Lastly, an injunction is sought that until the conclusion of the meeting ordered herein the Defendants be restrained from in any manner whatsoever: first, intervening in the management of the 1st Plaintiff; and secondly, disrupting and/or inhibiting the holding and/or conduct of Church services or Church meetings of the 1st Plaintiff; and thirdly, from assaulting and/or physically verbally and/or in writing threatening or intimidating the 2nd to 12th Plaintiffs, their families and any officers, servants and/or employees and/or agents of the 1st Plaintiff, including without limitation, Reverend Lee Sun and Deputy Reverend Park Jong-Chang and their families.

5. I wish to say at the outset that it is sad that these proceedings have had to be brought. It is sad because this involves the conduct of a Church. It seems particularly sad to me that although of course the Church has been incorporated, as to which I shall come in a moment, as a company and therefore falls to be dealt with under the Company Law, it really is a Church and it is sad that differences have arisen that necessitate the assistance of the Court, but I hope that such assistance as the Court will give today will go some way to resolving those differences and I hope that eventually the parties will come together and will still live and work and pray together as they originally intended.

6. It might have been better for me to have reserved my judgment after the case which has lasted some 4¼ days or more in argument, however, reserving my judgment would not have enabled me to have come to any different decision and in many respects it is better that I might give my decision in this case as quickly as I can.

7. I have to go a little bit into the history of this matter. The history of the Church seems to have started in 1969 when it was called the Korean Union Church. It was not a company under the Companies Ordinance at that stage. It was organized simply as an association. In 1973 it became the Hong Kong Korean Church. In 1982 apparently under legal advice, it seems probably because Church premises were to be purchased at that stage, the Church was incorporated as a Limited Company "The Hong Kong Korean Church Limited". It was a charitable company and it was a company limited by guarantee. I understand that on 12th October of that year, Articles of Association were filed. There were 7 subscribers to the Articles and Memorandum and all became Members of the Executive Committee; they were, therefore, the first directors. Of those, 3 remain active in the Church affairs; 2 are Plaintiffs in High Court Action 7989 and one is a Plaintiff in High Court Action 8129.

8. In 1984, it seems that there were 'Bye-laws' that were adopted. This is the first matter with which I must deal. I say at this stage that it troubles me slightly to come to conclusions, but I think in the circumstances of this case, it will help the parties if I give my views as to how I see the position of the case as it is before me now on the evidence which is before me. Of course, it will not bind any judge who may at some future date have to try this action, or indeed hear further proceedings in this case. It has been indicated to me, I think by both sides, that it would be useful if I gave my views as to how I see the situation at the moment.

9. Under the Articles of Association of the Church which were adopted in 1982, there is power under Article 30(g) for the Executive Committee "from time to time to make, vary and repeal regulations and 'Bye- laws' for the regulation of the affairs of the Church, its officers and servants". Before I go on, it is common ground that Articles of Association under the Companies Ordinance have to be in English. In 1984, there was put before the general meeting of the Church a document which is in Korean, of which there is exhibited one translation and another translation was at one time shown to me. I follow the one that has been exhibited. The translation exhibited is entitled "Articles of Association" but the affirmation says that is inaccurate. The document, as I say, headed Articles of Association does not purport to be By-laws.

10. When one reads the document, it in fact reads like a Memorandum and Articles of Association. It has many of the clauses that one would expect in a Memorandum and Articles of Association. It cannot of course be Articles of Association for these reasons: It was in Korean and there does not seem to have been a special resolution adopting it and so one cannot take it to be Articles of Association. I cannot read it to be Bye-laws under Article 30(g) of the Articles of Association either. It does not purport to be Bye- laws. It was passed and has been amended twice, according to the final page of the document, in general meeting. It was, of course, the function of the Executive Committee and not the general meeting to pass any Bye-laws. It is true that under Article 52(e) of the Articles of Association, the general meeting can consider any matter which has been referred to it by the Executive Committee. But I doubt whether the Executive Committee can delegate its own power to make Bye-laws.

11. More important than that there seem to me to be important conflicts between the Korean document, which I am now considering could be Bye-laws, and the Articles of Association. The first one is under Article 13 of the Articles of Association, the members of the Executive Committee hold office for a term of 3 years and at the expiry of that term they have to retire from office but are eligible for re-election at the next following general meeting.

12. Under the Korean document Article 10(e), the service term of the Elders, which it is suggested is the equivalent of members of the Executive Committee, is put as being permanent. It says "The service term of an Elder is permanent and an Elder will be retired at the age of 70 years old. An Elder who might serve for the Church over 10 years and retired by the age limit, the Church may nominate him as a retired Elder". I cannot see how such a Bye-law, as a Bye-law can live with the Article, namely, Article 13.

13. Another factor, to which I drew Counsel's attention this morning, is the relative functions of the Committees. Under the Articles of Association, the functions of the Executive Committee are set out under Article 30. They include not only paying the original costs and expenses but include such things as acquiring property, rights and privileges and so forth. (No doubt the premises in which the Church operates). To bring and prosecute and defend any legal actions; to invest on a long term basis moneys not immediately required by the Church; to appoint and remove the Pastors and the preachers and the deacons, to delegate matters to sub-committees; from time to time to make the Bye-laws and to make fulfill, rescind, modify, or vary any contract, and to pay all costs, charges and expenses incidental to carrying out the objects of the Church which is established.

14. The Deacon's Committee which has not been referred to very much in this case, is dealt with in Article 48 and its powers include what might be generally categorized as running the finances of the Church, but also to execute and carry out the general activities of the Church.

15. Now if we look at the Korean document that function of executing and carrying out the general activities for the Church does not appear amongst the duties of the Deacons' Committee. Article 16(B) seems to be almost wholly confined to financial matters, although it does have in 16(B)(3) the words managing various kinds of events and keeping documents of the Church etc. But the function of managing the general activities of the Church seems to have been transferred to the Executive Committee or the Elders' Committee, because under Article 15(B)(14) we find that the Executive of the Elders' Committee has to manage the general affairs. So for those two reasons, at least, I consider that the Bye-laws cannot be read in conjunction with the Articles.

16. I appreciate that the 1st Plaintiff, the Hong Kong Korean Church Limited, has operated as if the Korean document were its operating manual since 1984 and it is a serious step for me to have to say that I think this has been an incorrect. Unfortunately, since this case falls to be decided on a legal basis, I consider that the Korean document, as at present, is not operative. It has not been brought into effect either as Articles of Association or the Bye-laws and therefore for the most part of the case, I regret I have to cast it aside. I do bear in mind that people have considered that to be the operating document and therefore any actions which they have taken as a result of impliedly following it seem to me to be totally understandable.

17. In 1985, the Pastor was appointed and the Pastor was the Reverend Lee Sun, who is of course the 1st Defendant in High Court Action 7989. It seems to me that the Pastor is a very important, in fact the key, figure in the Church. Of course, for anybody going to a Church, the first person that he comes into contact with, or the major person that he comes into contact with in any Church service will be the Pastor. For many people going to Church, a Pastor and the Church are almost inseparable. It is not surprising therefore when one glances through the Articles of Association, that one sees the importance of the Pastor of this Church in the Articles of Association. For example, in Article 12(b), the Pastor for the time being of the Church shall be an ex-officio member of the Executive Committee and shall be the Chairman of that Committee; then we see in Article 14, that no salary, remuneration or allowance shall be paid to the Chairman, Secretary or other honourary officers of the members of the Executive Committee but in relation to the Pastor it is provided that the Pastor can be paid. The Chairman of the Executive Committee has important functions and that can be seen for example from Articles 22 and 24. The Pastor is also the person who must sign every instrument to which the Seal of the Church has to be applied: see Article 31 and all cheques, drafts and orders for the payment of money have to be signed either by the Pastor under Article 32, or by some person who has been authorized by him. The Pastor is also the Chairman of the Deacons' Committee which I have referred to before. So we see that the Pastor does indeed, both as a matter of practice in the Church and as a matter of the Articles of Association, play a very important part.

18. In 1986, the 2nd Plaintiff was elected an Elder of the General Meeting of the Church and on 21st October 1990 the 3rd to 6th Plaintiffs were also elected Elders of the Church. As I have been indicated it has been argued before me that as regards Elders one should treat them as equivalent to members of the Executive Committee. Clearly on the evidence before me, and I am thinking specifically of paragraph 36 of Mr. Whang's affidavit, there was no valid election. The reason for that seems to me to be quite simple. Mr. Whang in his affidavit of 8th July says:

"It is fair to point out that notice of general meeting or extraordinary general meeting had never been served on the members of the 2nd Defendant in accordance with the Articles. However, the Plaintiffs have been advised that such failure does not validate the irregularity in question."

He is there talking about whether an EGM called by the Defendants was valid. The simple point seems to me that if there has not been valid notices to call the General Meeting, as is said in paragraph 9.2 Pennington, the company is not in General Meeting and therefore, the directors cannot be validly elected. Although obviously there were a large number of then current members of the Church, who were present at those meetings, the circumstances where all the members of a company can ratify a meeting and circumvent the necessity for giving proper notice were clearly not there and so, as a matter of fact, not dealing with subsequent arguments which I will in a moment, it seems to me there were no valid elections of the 2nd to 6th Plaintiffs in 1986 or 1990.

19. The present difficulties appear to have started in about 1992 and 1993. The reasons behind the present difficulties have not been fully ventilated in front of me and probably very wisely too, but it stems in part from the sacking of the Deputy Pastor. One of the complaints against him seems to have been that he was too compliant with the wishes of the Pastor. I say no more about it at this stage, although it is not always a bad thing for a Deputy to be in synchronization with the superior. But the sacking of the Deputy Pastor led the Pastor to call the meeting of the Church and whether he did that rightly or wrongly is not for me to decide today. But I proceed today on the basis that he did it wrongly. In other words, he did not do it in compliance with the Companies Ordinance and the Articles of Association as they existed. I do not, as I have indicated before, given the state of the company documents hold that the Pastor went about it otherwise than in what he thought was in the right way and indeed what has to be borne in mind is that the Pastor came to this Church in 1985, after the Korean document was adopted and being followed. Probably it did not occur to anybody to challenge the Korean document as being the guidelines on which to act. I do not draw any adverse inferences against the Pastor or his conduct because he called that meeting or the manner in which he called it. The fact remains that I proceed upon the basis that it was not a valid meeting.

20. Nevertheless, that meeting was attended by a large number of members of the Church and without going into the numbers in any detail, it is fair to say that there was a strong support for the Deputy Pastor and thereby of course the Pastor as well. There was a very substantial measure of disapproval of these acts by the incumbent members of the Executive Committee of the Elders culminating in attempts to remove the Pastor. The first attempt was on 19th April. There was a meeting of the Elders, or the Executive Committee as it was thought at the time, at the beginning of which the Pastor attended but he left. After he left the Executive Committee then carried on and they purported in their words to "fire" the Pastor for a number of reasons. First of all for presiding over an unlawful Extraordinary General Meeting, secondly, for making decisions to "inaugurate" his service to another Church without notice to the Elders Committee or Executive Committee and not informing them, and thirdly, by performing this double service. It seems to me that I do not consider I know sufficient about it to draw any final conclusions because obviously the background facts need to be gone into. It seems to me quite possible that the Pastor was not given sufficient notice of the accusations which would have been made against him on 19th April, nor sufficient opportunity to defend himself. There may well be a valid explanation as to why he took on, if he did, his position in another Church in Korea and it has to be borne in mind that I was informed in the course of argument that he was having a sabbatical this year which was divided into two parts. So it seems to me that this decision to sack the Pastor, or fire him as it is said in the minutes, may have been a valid decision but it could well be open to challenge. It could be set aside even perhaps in proceedings for a prerogative order.

21. The next thing that happened was it was reported that the Pastor had offered his resignation; but on 9th May, in the Bulletin 93-19, it was reported that the Executive Committee persuaded the Pastor to withdraw his resignation. I have been told were that could not have been the Executive Committee which is the Elders Committee who are the Plaintiffs in High Court Action 7989, so be it. But here was the Church Bulletin announcing clearly that the Pastor had withdrawn his resignation. So rightly or wrongly, anybody who wanted to act on his purported resignation should, it seems to me, at the very least check with the Pastor. On 25th May there was another Executive Committee Meeting. On this occasion, it is reported as follows that "The concerned persons are absent" referring to the Pastor and the Deputy Pastor. "Therefore, we cannot listen the reasons. However, we better accept Lee Sun's resignation and reconfirm Park's dismissal even though he got the reconfirmation of his service from the illegal EGM on 21st March 1993".

22. It seems very possible from that that those concerned were alive at least to the possibility that they ought to hear what Pastor Lee Sun had to say about the dismissal for cause and, therefore, they took what they thought was the convenient course which was to accept his resignation. But, of course, as I have indicated it was well-known to all the members of the Church who read the Bulletin, it seems that everybody does read the Bulletin in this Church, that he had withdrawn his resignation and therefore, I cannot see that that is a valid acceptance of his resignation. It also puts into doubt what happened on 19th April or at least whether what had happened on 19th April had been expressly or impliedly rescinded. But things become rather curious. This decision of the Executive or Elders Committee was never communicated formally to Pastor Lee Sun for a very long time. But I have to say that I find this extraordinary. In paragraph 24 of Mr. Whang's affirmation of the 3rd September, he says this:

"The reason being that the relationship prevailing did not allow the 2nd to 6th Plaintiffs much opportunity to communicate with the Defendant and the 2nd to 6th Plaintiffs were somewhat at a loss as to how to handle the situation. However, the said minutes were formally inspected by the Defendant's solicitors on the 22nd July 1993"

It seems to me if the persons calling themselves the Executive Committee cannot inform the Pastor of their decision to sack him, which is one of their functions under the articles under 30(E), they are either incompetent or the organisation of the Church is in such disarray that it is high time the Church sat down in General Meeting and decided who was in charge. It seems to me that there should have been no difficulty in somebody politely and quietly stopping the Pastor either on his way to the Church or on his way from the Church and informing him or giving him an envelope, or even post an envelope to him.

23. The final attempt to sack the Pastor occurred on the 31st August and I will deal with that perhaps later, but rather to anticipate myself perhaps I should say at this stage that I regard that attempt has been ineffective, because by then the persons who were purporting to act as Elders, or the Executive Committee, clearly had notice of the defects of their appointment. Therefore, it seems to me they could not validly purport to sack the Pastor. The question remains as to whether the Pastor was sacked on 19th April. The answer is probably he was yes, but prima facie there was breach of the rules of natural justice and therefore that decision was liable to be set aside in subsequent proceedings if there were any were to be brought.

24. Now, I go on to deal with the question of the directors, or the Elders, and it is said on their behalf that they are still the Directors of the Plaintiff Church, the Hong Kong Korean Church Limited, because they are de facto Directors by reason of the operation of the Articles and possibly the Ordinance as well. It is said that they are the people who are operating as Directors and therefore they remain Directors until removed under the Articles. The first question I have to ask myself is, are they actually in de facto control of the Church and in that respect there is it seems to me room to doubt. They purported to do one of the most important functions over which Directors are given power, namely, control of who was going to be Pastor of the Church. They purported to sack him nearly six months ago. For some reason, they found themselves unable to communicate their decision to him. The Pastor on the evidence before me has remained in total control of all the things that the Pastor should do on a Pastoral basis. He has been conducting services on a regular and almost daily basis and has been doing all the other parishional works that would be expected of the Pastor. It does not seem to me that those persons were in control of the finances either. I have difficulty in finding out really what they are in control of. But more importantly, the argument seems to me to lead to the proposition that once the usurper has come in and remained in purported office for a substantial period, he would be a Director until removed under the Articles. I cannot accept this as a valid proposition. I can well see that the validity of his past acts, done bona fide, may not be questioned, but to say that he becomes a Director for all the purposes, seems to me to be wrong. It seems to me that once the defect of the appointment is made known, he can no longer operate as a Director.

25. It is also said that estoppel arises in this case. It is said that the Defendants and for these purposes everybody else who might have an interest in this matter is in the same position are estopped from denying the validity of the notices of the General Meetings held years ago, particularly those at which the Plaintiffs were elected. The way it is put is that clearly where the members have acted over the past 11 years on the assumption that the General Meetings had been properly called and held, the Court will not allow a party to challenge this assumption of fact after such a long period of time.

26. The law of estoppel has been clarified in the last 10 years or so and has come down, it seems to me, to a very simple proposition: "Would it be unconscionable for a party to be permitted to deny that which knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment" and what I have got to decide in this case is whether in the circumstances of this case, it would be unconscionable for the world, [I regard any member of the Church as the world; in other words, I am not limiting this to the Defendants] to deny that the General Meetings had been properly called and held. I cannot see that it would be unconscionable. I have pressed Counsel right up to the end as to the facts upon which the Plaintiffs can rely as supporting their argument for estoppel and as showing that it would be unconscionable. What has been put forward is that no member has ever queried the mode of giving the notices and that it would be unconscionable now for anybody to come along and challenge those notices.

It also said that numerous things which have been done in the meetings in the past would be put into uncertainty and that it would have a tremendous impact on the members: everything done pursuant to those meetings would be invalid or contrary to the wishes of the meeting. I do not think that necessarily follows. Each particular fact and matter would have to be looked at: it is true. But I do not think that anything that was done pursuant to the meeting would necessarily be wrong, because the view that I take would be similar to the view that I take with regard to the Directors: that having been voted in by such a meeting or purported meeting, in so far as the acts were bona fide, those acts until the defect is made known are perfectly valid.

27. The last matter which I have to consider is whether the Defendants D3 to D12 in the Action 7989 and the Plaintiffs in High Court Action 8219, have been validly made appointed Directors of the Church. That seems to me to turn firstly on this question, Article 18 of the Articles of the Association provides that:

"No person, shall, unless recommended by the Executive Committee for election, be eligible for election to the office of the Committee Member at any general meeting."

And so, the first question I have to decide is, were these people validly recommended by the Executive Committee prior to the meeting. So one has to decide what or who was the Executive Committee. I have already held that in my view I consider that as at the time that notice was given to the Plaintiffs, they could no longer consider themselves to be Directors of the Church. When was that notice given? It seems to me that there is a valid argument that they should have been at least put on notice in May of this year on 11th May, when their solicitors wrote a letter in which they outlined what would seem to be defects in calling the meeting in March. Those defects applied equally to all the meetings of the Church and that was known to them. If nowhere else one has to look at paragraph 36 of Mr. Whang's affidavit which was sworn in July and he says that "all the meetings suffered the same defects." If it was not plain to them in May and in July when they set it out in the draft affidavit, it was certainly known to them on 19th August when the notice was put up in the Church when everything was spelt out in black and white with the advice from the Defendants' solicitors.

28. So who else was on the Executive Committee? There was the Deputy Pastor who had already been sacked. There is, it seems to me a substantial doubt as to whether as I say the Pastor was validly sacked on April the 19th. As I have indicated there is a little bit of doubt about it, although it is true to say that when formal notice of the sacking was given to the Pastor on 31st August, the April 19th meeting decision does not seem to have featured. The question is what should happen now. I remain of the view which I expressed during the course of the hearing last Friday, that I think that the sooner this matter is cleared up by General Meeting of the Church the better. I think that there is a sufficient doubt as to who is and who is not a member of the Executive Committee, to warrant the intervention of the Court at this stage because I do not think that this matter should be allowed to drag on possibly for 3 or 4 years whilst this matter is dragged out in Court proceedings going to the Court of Appeal, perhaps going to the Privy Council, which was mentioned in argument. I think that the time has come to take a stand.

29. The provisions of Section 114(B) are that if for any reason it is impracticable to call a meeting of a company in any manner in which meetings of that company may be called, or to conduct the meeting of the company in the manner prescribed by the articles or this Ordinance, the Court may, either of its own motion or on the application of any director of the company or any member of the company who would have been entitled to vote, order a meeting.

30. The first thing I have got to decide is whether it would be impracticable to call a meeting of the company and whether it would be impracticable to hold the meeting. What I have to decide, I think, is whether it would be impracticable to call the meeting now or in the immediate future not in 3 or 4 years time. I also bear in mind that the word impracticable is not a commonly used word in English. It certainly not does not mean impossible. What I have in mind is that there is doubt still remaining as to who is and who is not on the Executive Committee. There is clearly the possibility that my decision could be wrong. To allow one person or another to hold the meeting only builds up difficulties for the future. I presume that because they wish to have belt and braces the Defendants have served a requisition on the company to hold a meeting. Now, the Plaintiffs in High Court Action 7989 have picked that up and said 'Yes, we will hold the meeting'. I might say that this matter is not I think in evidence but it is a matter that was not in dispute and has been unfolded before me as this case has been argued over the successive days.

31. I have now come to the preliminary view at any rate that the Plaintiffs are not Directors so they should not be the ones to hold the meeting. Mr. Tong for the Plaintiffs said, "Well, if the Directors do not hold the meeting, then the requisitionists can hold the meeting and therefore, there is no impracticability." I consider that is, in the circumstances of this case, a very unsatisfactory and impracticable solution for this reason. One only has to look to see what happens where there are disputes as to who and who is not in control. One does not have to look far in this case because one only has to look at the meeting that happened in early September of this year. I do not intend to go through the allegations and counter allegations as to who is right and who is wrong about what happened at that meeting. What is clear is that unfortunately, and it is inevitable as I say where there is a dispute as to who is in control, there were strong disagreements and perhaps violence is not the right word, but there were more than words being bandied about, the microphone was being snatched, there were people being shouted down and so on.

32. That is no way to conduct a meeting. That is not a practicable way to conduct the meeting. The practicable way to conduct a meeting in this case is for the Court to order a meeting, to say how that meeting should be conducted and then at any rate, there is a working format which is practicable which can be followed. So having answered the first part of the test, can I make an order under Section 114(B), has a threshold been passed so that I can order the meeting, the next question is, should I order a meeting? And the answer I have already given is clearly "Yes". The sooner the position of the Directors is clarified the better. The Plaintiffs in High Court 8129 in their summons have indicated, first of all the mode in which the meeting should be conducted to the extent of who should chair the meeting. One would hope that the parties could perhaps agree, perhaps, on a person independent of either side, but in default of that, the suggestion which has been put forward in paragraph 4 of the summons seems to me to be a practicable one. Clearly, of course, the Pastor should be the chairman of the meeting, but in the circumstances that we have arrived at and in aid of being fair to everyone, perhaps it is better, and the Defendants have clearly recognised this that it is better, that the Pastor not the Chairman on this particular occasion. So they suggested that each party should nominate one person and the meeting should vote on it. That seems to me be sensible.

33. The resolutions which had been put forward, first of all a special resolution to remove the individuals namely the 2nd to 6th Plaintiffs in High Court Action 7989 and secondly, to resolve as an ordinary resolution that the named individuals be brings one to Article 18 which I mentioned before. Those persons may or may not have been nominated by the Executive Committee. But it seems to me that I do under Article 114(B) actually have power notwithstanding Article 18 to order it and for avoidance of doubt, I would include in my order a provision that Article 18 notwithstanding the individuals that are to be elected, be elected.

34. It has been proposed by the Defendants that the Plaintiffs should be at liberty also to nominate persons for election as directors and I think in the circumstances of this case that is correct. So any order I should make should enable that to be done. In view of Article 52B of the Articles of Association, I consider that at any rate at this stage, the number of persons elected to the Executive Committee should be limited to 7. That is the number of the original Executive Committee members and also the number, as I understand it, of elected Executive Committee members up until this year. If and in so far as the Church wishes to change the articles or to change Article 18 or to alter it in any way, or to clarify the number of people who can be elected to be Executive Committee, then I consider that is better done after the initial sorting out has been done. That can be done at another EGM or the AGM or whatever.

35. I am allowing the first resolution for this reason that I consider that my findings in relation to the Plaintiffs in High Court Action 7989 can only be provisional, as I have been indicated at the beginning of this judgment. Therefore, it is not binding on any subsequent Court and it seems to me to be far better that if the matter can be resolved by a resolution of the sort which is proposed, the sooner that is done the better and it would save any subsequent proceedings following on this.

36. Going on to the other relief which is sought by the two summonses. I bear in mind what has been urged upon me that one of the guiding factors must be to preserve the status quo. The Garden Cottage Case 1984 AC 130 has been cited to me as to the meaning of status quo and what Lord Diplock said there. He emphasized that status quo as used under the previously existing law relating to interlocutory injunctions used to be the status quo at the time of the wrongful act. That was because previously interlocutory injunctions would be granted only where a Plaintiff had established a strong prima facie case. The Court therefore presumably would be in a position where it would assume that the Plaintiff would win the case and therefore it would put the Plaintiff back in the position it was prior to the wrongful act. Now, status quo is the status quo as at the date of the writ, so what one has to consider is what were the circumstances prevailing at the time of the writ.

37. The first thing I bear in mind is that the Pastor was the person who was in day-to-day charge of, at any rate, the Pastoral dealings in the Church. The finances were in the control of Deacons' Committee. The Plaintiffs were certainly not in the control of the day-to-day finances. Any order that I make today in view of the order under Section 114B, it seems to me should alter the situation as little as possible.

38. The Plaintiffs' summons is general in terms of paragraph 1 to prevent the Defendants interfering or obstructing or hindering the proper administration of the affairs and/or management of the 1st Plaintiff company, contrary to the Memorandum, the Article and/or the Bye-laws. The Bye- laws clearly in my view has to go, but I do not see at the moment on the basis of what has been made out and in particular in relation to the duties of the Executive Committee under the Articles the need for any injunction at the moment under paragraph 1, nor do I see the need for any injunction under paragraph 2 at the moment. I do not see that there is any urgent need for an injunction under those headings. When it comes to the accounts, that again has been a matter which has been changing in the course of the hearing, but provided the Defendants give an undertaking that they will use their best endeavours to provide the Plaintiffs and all other members of the Church with regular accounts and accounting records as soon as possible, I do not see any need to make any order under paragraph 3. I have been told that the internally audited accounts for May and June have already been supplied and the accounts for July and August have been supplied and provided matters go on in like manner, it seems to me that is sufficient.

39. As regards the Defendants' summons or the summons in High Court Action 8129 under paragraph 5, Mr. Tong indicated at the beginning of the hearing that he is quite prepared to give an undertaking under sub paragraphs 2 and 3, and again I consider that is quite sufficient for the purposes of this case and I do not propose to make any further order under that.

40. There may be consequential tidying up of dates and so forth and of the Order and I will hear Counsel on that and as to costs.

Representation:

Mr. Ronny Tong, Q.C. Leading Anthony Chan (Lo & Lo) for Plaintiffs in A7989/93 and for Defendants in A8129/93.

Mr. Martin Lee, Q.C. Leading R. Sujanani (Fred Kan & Co.) for Defendants in A7989/93 and for Plaintiffs in A8129/93.