Read the full judgment text of HCMP 1489/2013 on BabelCite. This Court of First Instance judgment was delivered on 12 November 2013 before Deputy High Court Judge Le Pichon.
Civil procedure – Companies Ordinance (Cap 32) sections 111 and 122 – application to regularise non-compliance with annual general meeting and accounts-laying requirements – eighteen Hong Kong subsidiaries of Willas-Array Electronics (Holdings) Limited, a Bermuda-incorporated company listed on the Singapore Exchange Securities Trading Limited – application for dual listing of shares on the main board of the Stock Exchange of Hong Kong – whether the court should exercise its discretion to grant relief to remedy instances of non-compliance identified during due diligence for the listing – whether the contraventions were 'inadvertent' – applicable principles for exercise of discretion: whether affected shareholders were conversant with the financial position of the company and not prejudiced, whether the default was inadvertent, and whether the company would comply with its statutory obligations in future – Re Sanliuyidu (Hong Kong) Sports Goods Co Ltd [2009] 4 HKLRD 708 – auditor's inability to complete signing off of 2007 audited financial statements in time for the 2007 AGMs – directors' lack of familiarity with statutory requirements – Prime Sunlight Ltd v Asiatic Century Ltd, unreported, HCMP 1445/2013, 28 October 2013 – distinction between inadvertence and indifference – treatment of affected shareholders – representative nature of significant shareholders' knowledge – small number of shareholders and common shareholder feature in Group III respondent companies – inference of awareness of financial condition – directors' reliance on professional company secretarial services provided by Tricor Secretaries Ltd since 1992 – arrangements to ensure future compliance including appointment of independent non-executive directors, formation of an audit committee, and continued appointment of Deloitte Touche Komatsu as auditors – whether to grant section 111 relief for breaches that occurred over 20 years ago (1989 to 1991) – whether ordering meetings now would be artificial or pointless – discretion exercised to remove jeopardy to the proposed listing – holding that the breaches could fairly and properly be characterised as 'inadvertent' – all 18 applications granted – applicants represented by Ms Deanna Law instructed by Jones Day – all respondent companies were not represented and did not appear.
Legal issues: Exercise of discretion to grant relief for non-compliance with sections 111 and 122 of the Companies Ordinance
Outcome: Relief granted in respect of all 18 applications; the court exercised its discretion under sections 111(2) and 122(1B) of the Companies Ordinance to regularise the non-compliance of each respondent company.
Cited by 22 cases · Cites 2 cases