Wang on (HK) Ltd and Others v. The Registrar of Companies

HCMP 1105/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1105 OF 2008

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BETWEEN

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Before: Hon Kwan J in Court

Date of Hearing: 3 October 2008

Date of Judgment: 3 October 2008

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J U D G M E N T

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1.This is an application for a declaration that the dissolution of Element Development Limited (“the Company”) is void and that its name be restored to the register of companies by the Registrar of Companies pursuant to section 290(1) of the Companies Ordinance, Cap. 32.  The application is made by all four shareholders of the Company and the liquidator of the Company.  They also seek an extension of time under section 290 (1A) to seek the said relief.

2.The Company was incorporated on 18 February 1992.  It purchased a piece of land in Dongguan in 1992 for investment purpose.

3.At the extraordinary general meeting of the Company on 7 June 2004, the shareholders passed a special resolution to wind up the Company voluntarily and to appoint a liquidator.  The directors had filed a certificate of solvency in accordance with section 233(1) on 14 May 2004, certifying that they had made full inquiries into the affairs of the Company and had formed the opinion that the Company would be able to pay its debts in full within a period not exceeding 12 months from the commencement of the winding up.  In the statement of assets and liabilities as at 29 February 2004, both assets and liabilities were stated at nil.  The directors had omitted to list the Dongguan property.

4.The final general meeting of the Company was held pursuant to section 239 on 31 May 2005.  The return of the final meeting was presented by the liquidator and filed with the Companies Registry on 7 June 2005.  Hence, the Company was dissolved on the expiration of 3 months from the registration of the return, on 7 September 2005.

5.Under section 290(1), an applicant would have 2 years from the date of dissolution of the company to apply for an order declaring the dissolution to be void.  In this instance, the time for doing so would have expired in September 2007.  This application was issued on 12 June 2008.

6.The purpose of declaring the dissolution of the Company to be void is to deal with the piece of land in Dongguan in the Company’s name, which the directors had omitted to mention in the statement of assets and liabilities and this was not brought to the attention of the liquidator.  They had mistakenly thought that all the assets of the Company were identified and properly dealt with when the Company was dissolved.

7.The directors became aware of the omission in June 2006 and sought legal advice.  Their solicitors wrote to the Companies Registry in September 2006.  Due to the fact that one of the members of the Company was made bankrupt, it took some time for the solicitors to obtain consent from the Official Receiver before the present application was taken out.

8.I will exercise my discretion to grant an extension of time to seek a declaration that the dissolution is void.  I am satisfied that no prejudice would be occasioned to any one by the late application.  Unless the Company is revived, the property held in the Company’s name cannot be dealt with properly.  The Registrar of Companies indicated that he would raise no objection to the application provided certain terms are included in the order to be made.

9.I make the following orders:

(1)     an extension of time is granted to the applicants to seek relief under section 290(1) of Cap. 32;

(2)     a declaration be made that the dissolution of the Company is void;

(3)     Yu Kwong Fat, a certified public accountant, is appointed as the liquidator of the Company;

(4)     a sealed copy of this order is to be delivered by the applicants to the Registrar of Companies for registration within 7 days hereof;

(5)     whenever the name of the Company is mentioned in any document, the company number of the Company (CR No. 343556) should be incorporated;

(6)     all the outstanding liquidator’s statements, if any, shall be filed with the Registrar of Companies within 30 days from the date of this order;

(7)     the applicants shall pay the costs of the Registrar of Companies in the sum of HK$5,000 within 3 days hereof being his agreed costs.

Mr. Peter Wong Ting Kwong, instructed by Messrs. T. C. Lau & Co., for the Applicants

The Registrar of Companies, attendance excused.