WONG KAM CHUEN v. WING HIP YUEN ENTERPRISES LTD AND OTHERS

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JUDGMENT

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Sir Derek Cons, V.P., delivered the judgment of the court:

1. This is an appeal from the decision of Jones, J., given on the 17th of September last year, whereby he dismissed a petition by Wong Kam Chuen against the Wing Hop Yuen Enterprises Ltd. ("1st respondent"),Wong Weng Wa ("2nd respondent") and Wong Wing Yee ("3rd respondent") the latter two being, as we understand, directors of the 1st respondent company. The petition pleaded that the company be wound up, presumably under the just and equitable rule, alternatively for various orders under s. 168A, as a company being run to the detriment of a minority.

2. When the proceedings were called on before the judge below he questioned whether they were properly constituted. In reasons subsequently handed down he observed that proceedings for winding up should be instituted under the companies winding up jurisdiction and given a company's winding up number whereas proceedings under s. 168A should be instituted under the miscellaneous jurisdiction and given a miscellaneous proceedings number. The petition in the present instance had been entered as Miscellaneous Proceedings No. 2121 of 1990.

3. Counsel who then appeared for the petitioner immediately offered to withdraw the petition for winding up. No valid objection was taken by the 2nd respondent, who was the onlyrespondent to appear on that occasion, and the Official Receiver who was present took a neutral stand. But for reasons which are nowhere, as far as we know, set out the judge declined to allow any amendment and dismissed instead the whole petition.

4. Mr. Chain, who appears today for the petitioner, accepts that the proceedings were irregularly presented but draws our attention to rule 209(1) of the Companies Winding Up Rules which provides:

The judge below was not reminded of this rule at the time. Had he been we are confident that he would have allowed the proceedings to continue, for by dismissing them as he did all that was achieved was to incur further, and in our view unnecessary costs.

5. Mr Chain asks now for leave to make amendments to reflect that the proceedings are brought under s. 177(1)(f) of the Companies Ordinance as well as under s. 168(A). No objection is taken by counsel for the 2nd respondent, or by the 3rd respondent who today appears in person. The 1st respondent does not appear, nor the Official Receiver.

6. We think that in the circumstances it would be proper to allow the amendment; to that end we allow the appeal, restore the petition, give leave to amend accordingly and remit the proceedings to the court below. We make no order as to the costs of the appeal, and do not disturb the order for costs made below.