Re Air-lantic International Freight System Ltd

Case No.HCMP 1165/1984

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP001165/1984

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

NO. 1165 OF 1984

IN THE MATTER of Air-Lantic International Freight System Limited

and

IN THE MATTER of the Companies Ordinance (Cap. 32)

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Coram: The Honourable Mr. Justice Jones in Chambers.

Date of hearing: 9th May 1984

Date of delivery of judgment: 9th May 1984

Mr. C. Sussex (Fung Wong & Co.) for Plaintiffs.

Mr. F. Eddis (Richard Bryson & Co.) for Defendant.

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JUDGMENT

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1. This is an application by way of originating summons in which the plaintiffs Wong Shau Chun and Matthew Yip Kam Kuen seek an order against the defendant Air-Lantic Freight System Limited for an order under S.114(2) of the Companies Ordinance to convene a meeting for the purpose of appointing themselves and 3 other persons to be directors of the company. The plaintiffs are mother and son. The application is supported by an affidavit sworn by Mr. Joseph Chu who is the solicitor acting for the plaintiffs.

2. The defendant company was incorporated in 1979 for the purpose of operating as air freight forwarders. It is alleged that since incorporation Matthew Yip has had a controlling beneficial interest which is now 70%.

3. The plaintiffs contend that Richard Ho, Stephen Wong and Gary Yen who promoted the defendant with Matthew Yip are operating another company Freight Media Limited in competition with the business of the defendant. The present shareholding of the defendant according to the plaintiffs is as follows:-

	Richard Ho	1,000 shares
	Stephen Wong	1,000 shares
	Andrea Wong Yen	1,000 shares
	Wong Shau Chun	3,250 shares
	Matthew Yip	3,750 shares

However there is a dispute of fact as to whether Matthew Yip is in fact a member of the defendant.

4. Paragraphs 24 and 25 of Mr. Chu's affidavit set out the reasons for the present application which are as follows: -

"24. Matthew Yip and his mother recently attempted to requisition an extraordinary general meeting of the Company. .................... The 21 days within which the directors should call a meeting pursuant to such a requisition have almost expired as at the date hereof. Having regard to the recent conduct of the directors. I apprehend that no meeting will be called.

25. In my respectful submission it is impracticable to call a meeting of the Company. The aid and process of this Honourable Court are therefore required to assist the majority shareholders to establish control of the board of the Company, by calling a meeting of the Company for the purpose of appointing additional directors.".

No evidence has been filed on behalf of the defendant.

5. Mr. Eddis who appeared for the defendant has raised objection to certain procedual irregularities. First the originating summons is not in the proper form in that the names of the parties have not been set out, second that no affirmation of service has been filed, and thirdly objection is taken to Matthew Yip bringing the proceedings as one of the plaintiffs on the assumption, when it is strenuously denied that he is a member, and fourthly the affirmation was sworn by a solicitor and not by Matthew Yin himself. Although the originating summons is not in proper form the objection has been waived for the defendant has filed an acknowledgment of service to the effect that they would be contesting the proceedings. An affirmation of service has in fact been filed. I am told that Matthew Yip has not sworn the affirmation because he is in New York. I do not consider the affidavit of Mr. Chu to be objectionable for he was authorised by the plaintiffs, and he has set out the sources of his information.

6. However pursuant to a requisition by Madam Wong Shau Chun a meeting of the company has been fixed to take place on the 21st May 1984. The notice convening the meeting was dated the 16th April 1984 9 days before the originating summons was issued. The agenda for the meeting is as follows:-

	(1)	To discuss the present Composition of the Board of Directors;
	(2)	To discuss the involvement of some members and employees of the Company in Freight Media Limited, Freight Media Incorporated and such other companies (if any) in the same interests as shipping, forwarding or any other form of business as the Company;
	(3)	To discuss the present financial status of the Company;
	(4)	To discuss all matters of concern to the well being of the Company;
	(5)	To demand the members and employees of the Company to give an account of their duties as members or employees of the Company and an account of their involvements in any of the matters referred in paragraph 2 of the objects.

7. In these circumstances, I am not satisfied that the plaintiffs have established that an order should be made at the present time under the originating summons.

8. The originating summons was fixed for hearing to-day with an estimated time of 20 minutes. The time of the hearing took about an hour. In the ordinary course of events the application would have been adjourned to enable the defendant to file evidence in reply, but I was able to hear the argument of the parties as my case at 10.00 a.m. did not proceed. The application was heard as I have said in the absence of evidence from the defendant, and in view of the dispute on the facts I have decided to give the defendant an opportunity to put their case on affidavit, and for the plaintiffs to reply if they think fit to do so.

9. Accordingly the application will be adjourned sine die with liberty to restore. Leave to defendant to file an affidavit in 14 days. Plaintiffs to file affidavit in reply 14 days thereafter. Mutual discovery on oath 14 days after filing affidavits inspection 7 days thereafter. Costs reserved. Liberty to apply.

( B.L. Jones )

Judge of the High Court

Representation:

Mr. C. Sussex (Fung Wong & Co.) for Plaintiffs.

Mr. F. Eddis (Richard Bryson & Co.) for Defendant.