LAW HOW PANG v. THE REGISTRAR OF COMPANIES

HCMP 2523/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2523 OF 2001

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J U D G M E N T

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1. This is an application under Section 290 of the Companies Ordinance. Section 290 provides that:

"..... in the case of a company which has been dissolved under [various sections of the Companies Ordinance including Section 239], the court may at any time within 2 years of the date of the dissolution, on an application being made for the purpose by the liquidator of the company or by any other person who appears to the court to be interested, make an order, upon such terms as the court thinks fit, declaring that dissolution to have been void and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved."

2. In the present case, the Company was dissolved on 4th April 2000. The Company was dissolved pursuant to Section 239(4) of the Companies Ordinance, this having been a voluntary winding up of the Company. A Declaration of Solvency had been signed by all directors of the Company pursuant to Section 233 and at that time, it was thought that there would be no further assets of the Company coming into the Company after that point of time. The Applicant was made the liquidator of the Company.

3. After the Company was dissolved in April 2000, in about November 2000 the Applicant received a cheque in the sum of HK$245,000.00 being the refund of some profits tax overpaid by the Company. The cheque was drawn in favour of the Company. As the Company had already been dissolved, the cheque could not be presented for payment and the Inland Revenue Department has declined the Applicant's request to send a new cheque in his name. Accordingly, there is now a sum of $245,000.00 standing to the credit of the dissolved Company with the Inland Revenue Department.

4. This application is made under Section 290 within the two years' period and therefore it satisfies that condition of Section 290. The application is made by the liquidator as envisaged by Section 290 and the resurrection of the company under that section is clearly justified because the Company would thereupon be able to take the benefit of assets which are due to it. Therefore, this is an application which is fully justified on the facts.

5. However, I was concerned by the fact that this application was first made ex parte. That was clearly an incorrect procedure as would clearly have been noted if those advising had checked the precedents.

6. After the Court indicated that this sort of application should not be made ex parte, the Registrar of Companies was made the Respondent. I have queried this because the law is that after a company is dissolved, its assets become bona vacantia, and there are authorities to the effect that as a result, the Government should be made respondent because the Government would lose the benefit of any assets which would come to it by way of bona vacantia.

7. I am told by counsel that the reason why the Department of Justice (or rather the Secretary for Justice) has not been made the Respondent was because the Department of Justice had told the Applicant's solicitors that it was not interested in being made a party and that it was the Registrar of Companies who should be made a party.

8. I have some reservations as to whether the Registrar of Companies should be the respondent rather than the Secretary for Justice. However, it is clear that since that was what the Department of Justice had told the Applicant, it would be estopped from asserting any interest in the amount as a result, and therefore, I am prepared to make an order today, the Registrar of Companies having indicated that he has no objection to it.