Jorge Gonzalez Lapuente and Another v. The Registrar of Companies and Another

HCMP 148/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 148 OF 2015

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JUDGMENT
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1.I have before me an application made by way of originating summons dated 20 January 2015 for the restoration to the Register of Companies of Asian International Limited and various consequential declarations in relation thereto.

2.The application is supported by an affirmation of Mr Thomas Herrero Ricardo who was, prior to deregistration, the sole shareholder and director of the company.  He resolved to deregister the company by a special resolution dated 22 August 2013 which led to an application for deregistration on 26 September 2013 with notice of deregistration being gazetted on 21 February 2014.  He says that he was at the time of deregistration unaware of a special power of attorney dated 5 August 2008 which was given to the 1^st applicant for the purposes of permitting the 1^st applicant to appear in and conduct on behalf of the company a series of proceedings in Spain. 

3.The proceedings relate to the enforcement of an arbitration award which was made in London in favour of the company in November 2008 in the sum of US$4,865,000, and which was confirmed by the Mercantile Court of Billbao on 3 February 2011, according to the 2^nd affirmation of Mr Miquel Roca Lopez.

4.I am told by Mr Lopez’s affirmation that the enforcement proceedings against the respondent in the arbitration have proceeded to the stage in which the company is proceeding against the insurers of the respondent under various entitlements which it obtains under Spanish law.  The insurers have now taken the point that as the company has been deregistered, there is no longer any liability of the insurers to pay the award. 

5.Consequently, it is said that without the re‑registration of the company, it will lose the benefit of the arbitration award in its favour and, consequently, the 1^st applicant will lose his entitlement to a percentage of the profits which are otherwise said to arise for the company, and the 2^nd applicant will not be paid legal costs that it says have been incurred on behalf of the company.

6.The principles surrounding the restoration of a company under the Companies Ordinance, Cap 622, are well established and are similar to the principles which applied in relation to the previous Companies Ordinance, Cap 32. 

7.The application is made under section 765(2) of the ordinance, which provides:

“Where a company has been deregistered, and is dissolved, under section 291AA of the predecessor Ordinance, an application to the Court for the restoration of the company to the Companies Register may be made by a person who feels aggrieved by the deregistration.”

8.Other requirements apply in other sections, namely: section 766 says that the application must be made within 20 years of deregistration; and section 767 requires that the application should be granted if the court is satisfied that it is just that the company be restored.

9.The principles under the predecessor ordinance are perhaps most clearly set out in the decision of Tang J in Re Active Systems Trading Limited (unreported), HCMP 5173/2003, 17 May 2004 and, in particular, at paragraphs 10, 11 and 12 of that judgment.

10.Put simply, there appears to be a leaning in favour of restoration, unless there are particular reasons why restoration should not occur.  On the basis that this application is uncontested, I do not consider it appropriate or necessary for me to set out the principles in any great detail.

11.I am satisfied that it is just in the circumstances that the company should be restored on the understanding that the requirements set out by the Registrar of Companies in a letter dated 2 June 2015 to the court, concerning the various administrative and financial matters which need to be resolved so as to restore the company, are satisfied.  Those requirements are incorporated into the order that I intend to make. 

12.The applicants ask for a declaration that the company shall be regarded as having continued in existence as if it had not been dissolved.  That is an appropriate declaration to make, and I shall make it. 

13.The applicants ask for a declaration that the company and the 1^st and 2^nd applicants shall be placed in the same position as if the company had not been dissolved. Again, in my view, that is an appropriate declaration to make in the circumstances, and I so make it.

14.The applicants ask for a declaration that the power of attorney dated 5 August 2008 in valid and subsisting.  I do not believe that that application should be acceded to. 

15.When I first saw the special power of attorney dated 5 August 2008, it was unclear to me the basis upon which it was granted, and that was particularly so in circumstances where the sole director and shareholder of the company swore an affirmation to this court stating that he was at the time of the application to deregister the company unaware of its existence, unaware of the proceedings in Spain and, therefore, it must be assumed also unaware of the arbitration award in the sum of US$4.865 million as indicated above. 

16.The special power of attorney is signed for and on behalf of the company by Ms Tse Sze Wan being a person duly authorised by its Board of Directors and in the presence of Peter Wai Keung‑lo, a notary public.

17.Mr Hariman, on behalf of the applicants, has now shown me an annual return of the company up to 3 September 2007 which demonstrates that of the 10,000 issued shares, they were held, as to 3,000 by a company called Wiseland Secretarial Services Limited and 7,000 by a company called Team Power Consultants Limited. He has also shown me a minute of a directors’ meeting held on 4 August 2008, in which it was resolved by those that are said to, at that stage still, be directors of Asian International Limited, namely Team Power Consultants Limited and Wiseland Secretarial Services Limited.  In that minute, it was resolved that the content of the special power of attorney tabled at the meeting was approved and that Ms Tse Sze Wan, representing Wiseland Secretarial Services Limited, be authorised to sign singly the special power of attorney and affix the company stamp and seal onto the said special power of attorney.

18.Consequently, and in the light of that material, it appears to me to be arguable that the power of attorney is indeed a valid and subsisting power of attorney.  However, I do not believe that it is appropriate for this court, in the context of an application to re‑register the company, to make declarations as to the validity of the power of attorney signed in those circumstances, or indeed as to whether it subsists or continues to subsist.  Those are matters which must be resolved, if they are contentious, in a different forum.

19.Consequently, I decline to make a declaration in the terms of paragraph 3 of the application.

20.At paragraphs 4 to 10 of the draft order which has been placed before me are, I am told, although I have not myself checked word for word, the same requirements as the orders requested by the Registrar of Companies and on that basis, I make the orders set out in paragraphs 4 to 10 of the draft order.

21.Therefore I make an order in terms of paragraphs 1, 2 and 4 to 10 of the draft order which was handed up to me.

Mr Wayne Hariman, instructed by WK To & Co, for the 1^st and 2^nd applicants

Attendance of the 1^st respondent was excused

The 2^nd respondent did not appear and was not represented