Kenny K C Tam & Shum Lap Chi v. Registrar of Companies and Another

HCMP 2177/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2177 OF 2005

____________

BETWEEN

_______________

Before: Hon Kwan J in Court

Date of Hearing: 8 November 2005

Date of Judgment: 8 November 2005

________________

J U D G M E N T

________________

1.This is an application taken out by the liquidators of Keentech Transportation Limited (“the Company”) under section 290(1) of the Companies Ordinance, Cap. 32, for an order that the dissolution of the Company on 29 October 2004 be declared void, and that any acts done or transactions entered into by or on behalf of the Company be deemed valid and effective as they would have been had the Company not been dissolved under section 227.

2.A creditor’s petition to wind up the Company was presented on 27 January 2003.  The Company was ordered to be wound up on 26 March 2003.  The liquidators were appointed by the Official Receiver as joint and several provisional liquidators and they were appointed by the court as liquidators without a committee of inspection on 2 July 2003.  It was ordered that the Company is to be wound up in a summary manner as the property in the estate is not likely to exceed $200,000.

3.During the course of investigation, the liquidators could not recover the books of account of the Company.  Only minimal assets were realised and that is not sufficient to enable any payment to be made to the creditors.

4.The liquidators made a report to the court on 16 August 2004 and applied for an order for their release and that the Company be dissolved.

5.On 25 October 2004, an order was made that the liquidators be released and they be at liberty to destroy the books of account and other documents of the Company after the expiration of 14 days from the date of dissolution of the Company.  On 29 October 2004, the court ordered that the Company be dissolved.

6.The liquidators were aware of a High Court action for personal injuries in HCPI No. 1057 of 2003 and a District Court action for employees’ compensation in DCEC No. 99 of 2002.  After the Company was ordered to be dissolved, the High Court action was transferred to the District Court and given the action number DCPI No. 25 of 2005.

7.The liquidators had taken the view that the Company should not become involved in these actions, as the Company has no assets for dividend distribution and no books of account have been recovered which may assist the personal injuries action or the employees’ compensation case.

8.Subsequent to the order for dissolution, the solicitors for the plaintiff in the personal injuries action requested the liquidators to apply to court for an order declaring the dissolution void due to the pending trial of this action on 14 November 2005 and the continuation of the employees’ compensation case.  To ease the concern of these solicitors that the dissolution of the Company might affect the interest of the parties to the continuing litigation, the liquidators have applied for an order that the dissolution of the Company be declared void.

9.The Registrar of Companies and the Official Receiver have no objection to the application.  The Registrar however wishes to seek these additional orders if the dissolution is declared void:

(1) within 14 days of the date of the order, a sealed copy thereof be delivered by the liquidators to the Registrar of Companies for registration;

(2) upon the delivery of the order to the Registrar of Companies, if the name of the Company is the same as or is, in the opinion of the Registrar, too like a name appearing at that time in the index of company names maintained by the Registrar, the liquidators shall arrange for the change of the name of the Company within 30 days of the notice that may be issued by the Registrar directing the Company to change its name;

(3) the liquidators shall file with the Registrar all outstanding liquidators’ statements within 30 days of the order; and

(4) the liquidators shall pay the costs of the Registrar in the sum of $5,000 within 3 days from the date of the order as agreed costs.

10.The liquidators are agreeable to the additional terms proposed by the Registrar.

11.I therefore make an order in terms of the order sought in the notice of motion with the additional terms proposed by the Registrar of Companies.

Mr Kenny King Ching Tam of Messrs Kenny Tam & Co., for the Applicants

The Registrar of Companies, attendance excused

The Official Receiver, attendance excused