HONG KONG INTERNATIONAL TERMINALS LTD v. FULL HOUSE CONSTRUCTION AND ENGINEERING CO LTD

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HEADNOTE

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Warning of the danger flowing from the present practice under which the record open to public inspection at the Companies Registry may not reflect a change of the address of the registered office of a company even several months after notice of such a change had been given to the Registrar of Companies under s.92(2) of the Companies Ordinance, Cap. 32.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an appeal by the defendant from a decision of Master Perrior given on the 10th of this month refusing to set aside a judgment entered on the 3rd of this month in default of notice of intention to defend.

2. It is not necessary - and indeed it is undesirable - that I say very much about the background to this matter. Suffice it to say that the plaintiff's claim is for damages flowing from loss to it as a result of damage done by (it is the plaintiff's case) the defendant to an underground electrical cable supplying power to its i.e.  the plaintiff's container facilities.

3. The defendant has put in evidence with a view to showing that it would have reasonable prospects of success in its defence if allowed to defend. I have come to the conclusion, on the whole of the material before me, that the defendant has shown such prospects. It seems to me that to say very much - or indeed any - more might possibly prejudice the future trial of this action.

4. As I allow the appeal and order the setting-aside of the judgment on the basis which I have indicated, it matters not whether the judgment be viewed as a regular or an irregular judgment. But there is a reason why it is necessary for me to say a word in that regard.

5. The writ was issued and served on April 12, this year. It was served at Room 1602, Wanchai Commercial Building, 194-204 Johnston Road, Hong Kong. If one were to look at the record maintained by the Registrar of Companies for public inspection, that address would appear as that of the defendant's registered office.  However, for some time now, the defendant has been operating from a different address, namely, 209 Jaffe Road, Mezzaine Floor, Wanchai, Hong Kong; and by a notice of change of registered office dated and presented on August 31, 1989, notice was given on behalf of the defendant to the Registrar of Companies that the address of its registered office had been changed to that address in Jaffe Road. However, as I have indicated, even now that change is not reflected in, or adverted to, in the record open to inspection at the companies Registry.  I am informed by the solicitor for the defendant that he has been informed by a fairly senior member of the Registrar of Companies staff that it sometimes takes several months after notice before the Registrar of Companies records a change of that sort.

6. Now section 92(2) of the Companies Ordinance, Chapter 32, reads as follows :-

"Notice of the situation of the registered office, and of any change therein, shall be given within 14 days after the date of the incorporation of the company or of the change, as the case may be, to the Registrar, who shall record the same. The inclusion of the annual return of a company of a statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by this subsection."

7. The requirement in the subsection is that the Registrar of Companies "shall record" the situation, or change in the situation, of the company's registered office. It is not accompanied by any words of qualification; and I take that to indicate that he shall record the same forthwith, which in the real world means as soon as practicable.

8. Of course I do not know the administrative, staff or other difficulties which the Registrar of Companies may face. But what is prefectly plain is that it puts everyone in an extremely awkward position - and almost negates the point of a registered office - if the situation is allowed to remain as it is.  It would appear that some plan is afoot to relieve the situation by resort to microfilm.  It does not seem to be impossibly difficult for some note to be made on the record more or less as soon as a notice comes in, drawing to the attention of those searching it the fact that somewhere they will find set out a change of the registered office of the company the subject-matter of their search. Be that as it may, I express the hope - and the expectation that something would be done as soon as practicable to put right or alleviate the situation of which I have been told. Meanwhile this case serves as a warning of the present dangers.

9. The awkwardness which it could have caused in the present case is reduced by the defendant's sensible of inviting me to approach the judgment as one regularly entered, so that it does not seek to disturb the order as to costs made against it by the learned Master.

10. As I have indicated, I allow the appeal from the Master's decision. In fairness to him, I should note that I have before me much more material than he had before him. The only thing which remains now is to invite the parties to address me in regard to the costs of the appeal.

[Submissions on Costs]

11. It seems to me that the way in which the defendant went about its application before the Master made it hardly surprising that his decision went against it. The evidence on which - or principally on which - it has succeeded on appeal was filed after the Master's decision; and some of that evidence was filed very recently, well after the time when the notice of appeal was taken out. It seems to me the fairest thing to do is to order that the costs of the appeal be the plaintiff's costs in the cause so that under no circumstances will the plaintiff have to pay the costs of the setting-aside, but that its right to recover the costs of the appeal be dependent on its being proved right overall on the merits of the case. That does not do perfect justice (which I doubt can ever be done by man). Nevertheless, it seems the fairest order that I can make; and it is the order which I do make.