Re Gold Wo International Holdings Ltd

HCCW 33/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 33 OF 2003

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Before: Hon KwanJ in Court

Date of Hearing: 23 September 2004

Date of Decision: 23 September 2004

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D E C I S I O N

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1.There are two Notices of Motion issued by the petitioner, HSBC, seeking to amend a winding-up order made on 14 June 2004 against Gold Wo International Holdings Limited (“the Company”) and a winding-up petition issued against the Company on 8 January 2003.

2.The errors sought to be amended are twofold.

3.Firstly, the title of the proceedings in the order and the petition contained the name in Chinese of the Company.  According to the records of the Companies Registry, the Company did not register a Chinese name, although the Chinese name of the Company had appeared in public documents issued as a result of its status as a listed company.

4.Secondly, although the Company was correctly stated in the order as incorporated in Bermuda, the address given in the order, being an address in Hong Kong, was stated to be its registered office, and that is clearly incorrect.  The address in Hong Kong stated in the order was in fact the principal place of business of the Company in Hong Kong.

5.The Notice of Motion to amend the winding-up order was made under Order 20 rule 11 of the Rules of the High Court, which provides for amendment of orders to correct errors from accidental slip or omission.

6.The Notice of Motion to amend the winding-up petition was made under Order 20 rules 5 and 7 of the Rules of the High Court, which provide for amendment of the writ or pleading and other originating process.

7.These provisions in Order 20 of the Rules of High Court would apply to the winding-up proceedings by virtue of rule 210 of the Companies (Winding-up) Rules which provides as follows:

“In all proceedings in or before the court, or any Registrar or officer thereof, or over which the court has jurisdiction under the Ordinance and rules, where no other provision is made by the Ordinance or rules, the practice, procedure and regulations shall, unless the court otherwise in any special case directs, be in accordance with the rules and practice of the court.”

8.The court in rule 210 is the Court of First Instance.  I have also cited to me by Mr Harris, who appeared for the petitioner, two decisions in which the court granted leave to amend the winding-up order as well as the petition upon which the winding-up order was made, to correct an error in the name of the company, In re Samuel Birch Company Ltd, (1907) WN 31 and In re Army and Navy Hotel (1886) 31 Ch D644.

9.Further, rule 209 (1) of the Companies (Winding-up) Rules provides that:

“No proceedings under the Ordinance or the rules shall be invalidated by any form of defect or by any irregularity, unless the court is of opinion that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of the court.”

10.I am satisfied that it is clearly within my power to make an order to amend the title of the proceedings and the body of the winding-up order under Order 20 rule 11, alternatively, under the inherent jurisdiction of the court (see Pearlman (Veneers) SA (Pty) Ltd v Bartels [1954] 3 All ER 659 at 660 F-G).

11.In the letter of the Official Receiver to the petitioner dated 23 August 2004, the Official Receiver informed the petitioner that there is a company incorporated in Hong Kong and registered in the Companies Registry by the same name in English and by the name in Chinese of 金禾國際控股有限公司 between 15 November 2000 to 23 March 2001, when this company changed its name to Rich Jet Investment Limited.  This company has no place of business in Bermuda and is not listed on the Stock Exchange of Hong Kong Limited.

12.The Company was allowed to be registered as an oversea company under Part XI of the Companies Ordinance, Cap. 32 on 23 February 2001, notwithstanding at that time there was a company by the same name in English registered in the Companies Registry.

13.The Official Receiver does not oppose the present applications.

14.The amendment sought to be made to the title of the proceedings in the winding-up order and the petition, by deleting the name of the Company given in Chinese, is merely to correct a misnomer.  It does not alter the substance of the judgment or substitute another party.

15.I am satisfied there should be no confusion as to the identity of the company being the subject of the proceedings, as it is clear from the body of the petition that the company being the subject of the winding-up petition is a company incorporated in Bermuda, it is registered under Part XI of Cap. 32 and its shares were listed on the Stock Exchange.  The Registrar of Companies would also appear to have no doubt as to which of the companies was ordered to be wound up by the court on 14 June 2004.

16.I therefore grant relief as sought in each of the Notices of Motion.  The petitioner seeks an order to dispense with re-advertisement of the amended petition.  The petition was adjourned on a number of occasions after it was presented on 8 January 2003 and the winding-up order was made well over a year later.  Notices were given by creditors of intention to appear at various times.  No one would appear to have any doubt as to the identity of the company that the petitioner sought to wind up.  I think it appropriate to dispense with re-advertisement of the amended petition in the circumstances.

17.As for the costs of this application, I make no order as to the petitioner’s costs, taking the view that the application would not have been necessitated but for the errors made on the part of the petitioner’s solicitors.

18.For the Official Receiver’s costs, they are assessed at a gross sum basis at HK$23,500.00 and they would be paid by the petitioner.

Mr Jonathan Harris, instructed by Johnson, Stokes & Master, for the Petitioner

Ms Karen Cheung, for the Official Receiver