HANG LUNG PROPERTIES LTD v. REGISTRAR OF COMPANIES

HCMP 2036/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2036 OF 2006

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REASONS FOR DECISION

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1.  By its Originating Summons dated 5 October 2006, Hang Lung Properties Limited (“the Company”) sought an order that certain documents it had submitted to the Registrar of Companies (“the Registrar”) for filing should be accepted for registration at the Companies Registry.  On 26 February 2007, the Originating Summons was amended to seek additional declaratory relief.  Following the amendment, the relief sought comprised:-

(1)	a declaration that the share capital structure of the Company as shown in the schedule annexed to the amended Originating Summons was its correct share capital structure as at 21 October 2005;
(2)	a declaration that the Form SC11 filed by the Company with the Companies Registry on 21 October 2005 is null and void; and
(3)	an order that the Registrar of Companies (“the Registrar”) should accept the following documents for registration:-
	(a)	a Form SC11 dated 21 November 2005, which was submitted to the Companies Registry for filing on 21 August 2006; and
	(b)	a statutory declaration dated 23 December 2005 by Mr Robin Ching Sik Wing, who was (until the end of 2006) the Company’s company secretary (he has since become an assistant director employed by the Company).

2.  At the conclusion of the hearing of the Originating Summons on 13 September 2007, I made the following declarations and orders:-

(1)	a declaration that the share capital structure of the Company as shown in the schedule annexed to the order (which was the same as the schedule annexed to the amended Originating Summons) was its correct share capital structure as at 21 October 2005;
(2)	a declaration that the Form SC11 filed by the Company with the Companies Registry on 21 October 2005 (“the First Form SC11”) is null and void as between the parties to the application;
(3)	an order that the Registrar should accept for filing the documents referred to in paragraph 1(3)(a) and (b) above;
(4)	An order that the First Form SC11 should remain registered with the Companies Registry; and
(5)	An order that a copy of the order that I had made should also be registered with the Companies Registry.

3.  I indicated that I would give my reasons for making the orders at a later date, at which time I would also deal with the question of the costs of the proceedings.  I now do so.

4.  The Company is a locally incorporated publicly listed company, whose shares are listed on the Stock Exchange of Hong Kong.  Its main business activities are, as its name suggests, property related.  The company itself holds investments in its subsidiaries, through which it holds properties for rental income, develops properties for sale and leasing, manages car parks and provides property management services.  These activities are carried on in both Hong Kong and on the Mainland.

5.  Its share capital comprises two types of shares – Ordinary Shares and Convertible Cumulative Preference Shares (“Preference Shares”).  As at 20 October 2005, its authorised capital was HK$6 billion, divided into HK$4.5 billion consisting of Ordinary Shares with a nominal value of HK$1 each, and HK$1.5 billion consisting of Preference Shares with a nominal value of HK$7,500 each.  As at that date, its issued share capital was HK$4,119,762,280, divided into 3,685,402,780 Ordinary Shares and 57,915 Preference Shares.

6.  The Preference Shares were, as their full name indicates, convertible into Ordinary Shares.  If and when any Preference Shares in issue were converted into Ordinary shares, there would be a change in the capital structure of the Company, with the number of Preference Shares in issue being reduced, and the number of Ordinary Shares.  In this case, the redemption value was HK$766 per Preference Share converted.  Thus, for every Preference Share converted, 766 new Ordinary Shares would be issued.

7.  Any change in the capital structure of the Company arising from the redemption of Preference Shares is required, pursuant to section 54(1) of the Companies Ordinance (Cap. 32), to be notified to the Registrar within one month of the change taking place.  The change is notified to the Registrar by the submission for registration of a form known as Form SC11, which is the form specified by the Registrar for this purpose, pursuant to his power to do so conferred on him by section 2A of the Ordinance.  Form SC11 requires the following information to be provided – the name of the company, details of the change in share capital structure that is being reported, and the effective date of the change in share capital structure.

8.  The factual background leading to this application is not controversial.  It is deposed to in two affirmations of Mr Ching, and can be summarised as follows.

9.  On 18 October 2005, the Company received instructions by electronic mail from the London office of the Bank of New York (one of its share depositary agents) to convert 25,000 Preference Shares into Ordinary Shares.  These instructions were also copied to the Company’s share registrars, Computershare Hong Kong Investor Services Limited.  Attached to the electronic mail message was a scanned copy of a conversion notice dated 13 October 2005.

10.  Having received these instructions, the Company caused the First Form SC11 (which was dated 19 October 2005) to be filed with the Companies Registry on 21 October 2005.  By it, the Company notified the Companies Registry that it had redeemed 25,000 Preference Shares at a redemption price of HK$766 per share, and that the effective date of the redemption was 19 October 2005.

11.  As it transpired, the instructions received on 18 October 2005 contained an error.  The correct number of Preference Shares to be converted was not 25,000, but 25.  This error appears to have been the result of a mistake in calculations made by the Bank of New York.  The error was not realised until some time later, and it was not until 2 November 2005 that the Bank of New York notified the Company and its share registrars (again by electronic mail) that there had been a mistake, and that the correct number of Preference Shares to be converted was only 25.  A revised conversion notice, in respect of 25 Preference Shares, was attached to this message.

12.  At this time, the conversion had not, in fact, been effected.  This was explained in Mr Ching’s second affirmation.  It appears that the procedure for conversion was that whenever a conversion of Preference Shares was to take place, notification of the intended conversion would be given to both the Company and its share registrars by the Bank of New York by electronic mail, attaching a copy of the relevant conversion notice.  The original conversion notice would subsequently be sent by courier to either the Company or the share registrars.  Whichever of the Company or its share registrars received the original conversion notice would inform the other upon receipt.  If the original was received by the share registrars, they would send a certified copy of it to the Company.  Only after the original or such certified copy was received by the Company would it process the conversion.  This involved the passing of a board resolution by the Company’s board to approve the allotment of new Ordinary Shares in accordance with the conversion request.  Once the board resolution had been passed, the Company would instruct the share registrar to allot the new shares, and deliver share certificates to the allottee.  However, according to Mr Ching, the Company would file a Form SC11 upon receipt of the electronically transmitted instructions, without waiting for the original or certified copy to be received, in order to ensure that it complied with the time limit specified in the Ordinance.

13.  In fact, on 2 November 2005, when the Company was notified of the error in the earlier conversion instructions, it had not yet received either the original or a certified copy of those instructions, and accordingly had not acted on it (other than by filing the First Form SC11).  It therefore had not actually issued any new Ordinary Shares to the holders of the Preference Shares which were to be redeemed, and there had been no change in its capital structure at this point in time.

14.  The practice described by Mr Ching in relation to the filing of the Form SC11 (in accordance with which the First Form SC11 was filed) indicates that the Company has misunderstood the effect and requirements of section 54.  Any change in capital structure consequent upon the conversion of Preference Shares would only take place on the redemption being effected by the issue of new Ordinary Shares, which would only occur on the passing of the board resolution allotting the new shares.  The one month period for filing a Form SC11 would not, therefore, start to run until the new shares had been allotted, and would then run from the date of allotment.  In filing a Form SC11 prior to the receipt of the original conversion instructions (and thus, necessarily, prior to the allotment of new Ordinary Shares), the Company was jumping the gun, and would, in fact, be filing an incorrect return, in that even if everything else mentioned in it were accurate, the effective date of the change of share capital structure would be misstated, since the date stated would predate by some days or weeks the actual date on which the company’s share capital structure was changed.

15.  On receipt of the certified copy of the corrected instructions, the Company processed the conversion, and the board resolution allotting the 19,150 new Ordinary Shares arising from the conversion of 25 Preference Shares was passed on 21 November 2005.

16.  On the same day, the Company submitted an amended Form SC11 (“the Second Form SC11”) to the Companies Registry for registration.  The form that was submitted was marked “AMENDMENT”, and amendments were indicated in relation to the details of change in shareholding structure, where the original number of shares converted (25,000) was replaced by “25”, which was underlined.  The effective date of the change was now stated to be 21 November 2005, with both the day and the month underlined.

17.  This document was rejected by the Registrar.  On 30 November 2005, the Registrar wrote to the Company stating that the Companies Registry was not in a position to accept the Amended Form SC11, as the Companies Ordinance did not provide for the registration of any amending return.  It was suggested that if the Company were to provide a statutory declaration satisfactorily explaining the reasons for the errors that had been made and were to pass a special resolution confirming such errors and stating the correct position, these might be attached to the First Form SC11 as an “information sheet” or “external note”.

18.  Thereafter, on 5 and 15 December 2005, the Companies Registry rejected certain other returns (a return of allotments in respect of the new Ordinary Shares which had been allotted on 21 November 2005, and an annual return showing a capital structure which reflected that allotment) which the Company sought to file with it, on the grounds of their inconsistency with the First Form SC11.

19.  On 28 December 2005, Mr Ching wrote to the Companies Registry, stating that the First Form SC11 was erroneous, and that this was due to of a genuine mistake by the Bank of New York in stating that 25,000 Preference Shares were to be redeemed.  Mr Ching enclosed a table purporting to show the sequence of events, and a statutory declaration dated 23 December 2005 in which he declared that the statement (in the First Form SC11) that 25,000 Preference Shares had been redeemed was based on the notification received from the Bank of New York, which the Company was subsequently informed was mistaken, and that the correct number of Preference Shares redeemed was only 25.

20.  However, none of the letter, statutory declaration or table of events made it clear that no Preference Shares had been redeemed at all on 19 October 2005 (as was stated in the First Form SC11).  Indeed, the table of events suggested that there had been such a redemption, which was subsequently somehow reversed.

21.  Thereafter, until 21 August 2006, the Company’s solicitors engaged in correspondence with the Companies Registry as to how the apparent impasse which had arisen could be remedied.  Finally, on 21 August 2006, the Company’s solicitors wrote to the Companies Registry enclosing the Form SC11 (“the Third Form SC11”) which it now seeks to have filed.  This version of the Form SC11 was dated 21 November 2006, and stated that 25 Preference Shares had been redeemed at a price of HK$766 each, adding a note explaining that the First Form SC11, dated 19 October 2005 and submitted on 21 October 2005, had wrongly stated that 25,000 Preference Shares had been redeemed on 19 October 2005, whereas in fact only 25 Preference Shares had been redeemed on 21 November 2005.  This would appear to be the first time that it was suggested that there had never been any conversion of 25,000 Preference Shares as stated in the First Form SC11 (although a full explanation of the sequence of events does not seem to have been provided).

22.  On 24 August 2006, the Registrar wrote to the Company’s solicitors, reiterating his view that it was not possible to file any amending return to vary the contents of the First Form SC11, because it constituted a representation by the Company of its share capital structure which could not be altered.  Reliance was placed on the decision of Kwan J in Tongda Group Holdings Limited v Registrar of Companies (unreported, CFI, HCMP 1356 of 2004, 30 September 2004).

23.  On 5 October 2006, the Company made this application, supported by Mr Ching’s first affirmation.  However, while the affirmation contained an explanation of how the error arose along the same lines as that which had been provided in Mr Ching’s earlier statutory declaration, it left the position somewhat unclear, in that it did not explain (as Mr Ching’s later affirmation did) that no Preference Shares had in fact been redeemed on 19 October 2005.  It was not until Mr Ching’s second affirmation was filed on 12 April 2007 that the full explanation was provided.

24.  Mr Beresford, who appeared for the Registrar, took a preliminary point that the appeal under section 348(3) was out of time, since it was brought more than 42 days after the Registrar’s decision, notified to the Company on 30 November 2005, to reject the Amended Form SC11 dated 21 November 2005.  For the Company, Mr Ng S.C. submitted that the relevant decision being appealed against was not the decision to reject the Amended Form SC11, but the decision, notified to the Company on 24 August 2006, to reject the Third Form SC11 submitted on 21 August 2006, and that the proceedings were brought within 42 days of that rejection.

25.  In my view, the appeal was brought within time.  The Company is, I think, right not to complain of the decision to reject the Amended Form SC11 submitted on 21 November 2005.  Whatever may have been the merits of the reasons given by the Registrar for the rejection of that version of the Form SC11, the document was one which was, on its face, an amended or altered document, bearing markings and underlinings which made this obvious.  Whatever other reasons there may have been for rejecting it, it was thus susceptible to rejection on the basis that it was altered, within the meaning of section 348(1)(b).  By contrast, the Third Form SC11 submitted on 21 August 2006 did not appear to have been altered, and was thus a different document from that which had been submitted earlier.  There had also, in the meantime, been representations addressed to the Registrar by the solicitors acting for the Company.  I therefore agree with Mr Ng that the rejection of this document involved a fresh decision by the Registrar, and that accordingly the time for appealing against it ran from 24 August 2006, with the consequence that these proceedings were commenced within the time allowed for appealing.

26.  Turning to the merits of the application, and the way in which it should be disposed of, I should say at the outset that having considered all of the evidence which is before me, and in particular the explanation provided in Mr Ching’s second affirmation, I am satisfied that the position is as he has stated, and that there never was any redemption of 25,000 Preference Shares as stated in the First Form SC11.  I am also satisfied that the mistake in stating in the First Form SC11 that 25,000 Preference Shares had been redeemed was an innocent one, arising from the mistake as to the number of Preference Shares that were to be redeemed which was contained in the initial redemption request that had been made to the Company through the Bank of New York, and one which arose as a result of the Company’s practice of submitting the requisite Form SC11 in advance of receipt of the original or certified copy of the conversion request.  I would also accept that the filing of the inaccurate First Form SC11 was due to inadvertence on the part of the Company, in that it (or at any rate its company secretarial department) appears to have been under a misapprehension as to when the change in capital structure consequent on a redemption of Preference Shares took place, and thus submitted the First Form SC11 too early, and that this misapprehension contributed to the filing of the inaccurate return.

27.  Indeed, Mr Beresford did not suggest otherwise, being content to leave it to the Court to accept the Company’s explanation if it thought it right to do so.  Mr Beresford did submit, however, and (as will be apparent from what I have already said) I agree, that it was not until Mr Ching’s second affirmation was filed that the full explanation for the filing of the incorrect First Form SC11 was made clear.

28.  So far as the Registrar’s decision to reject the Third Form SC11 dated 21 August 2006 is concerned, Mr Ng submitted that this decision was erroneous, in that that Form SC11 was in the form required by the Registrar, and was not susceptible to being rejected on any of the grounds stated in section 348(1), and should therefore have been accepted for registration, together with Mr Ching’s statutory declaration of 23 December 2005 which served to confirm that the First Form SC11 dated 19 October 2005 contained errors which required correction.

29.  As I have noted, the Registrar considered that he should not accept the Third Form SC11 dated 21 August 2006 for registration on the grounds that (1) there was no power expressly provided under the Ordinance for him to accept any amending return, or for a company to seek to file a return to correct statements made in an earlier return which it had submitted; and (2) the possibility of accepting an amended return for filing was precluded by the decision of Kwan J in the Tongda case to which I have referred.

30.  Mr Ng submitted that neither of these reasons were well-founded.

31.  As to the first, he submitted that even if there was (as appeared to be the case) no express provision dealing with the submission of an amended return by a company, the entitlement of a company to submit such a return, and the power of the Registrar to accept it for filing must be implied, given the purposes of the establishment and maintenance of a register containing information concerning companies which would be open to public inspection.  Further, he pointed out that the Registrar’s own practice, as embodied in Companies Registry External Circular No. 7/94, by which amending returns or explanatory documents, which were intended to set the record straight in cases where errors had been made, were in practice accepted for filing by the Registrar in certain cases (principally those involving obvious typographical or clerical errors), suggested that there was in fact such a power.

32.  In fairness to the Registrar, it must be said that this argument was not pressed at the hearing by Mr Beresford.

33.  I am satisfied that even though the Companies Ordinance does not in terms provide for the submission of amending or corrective returns for filings, it is implicit in the very existence of a register of documents containing information relating to companies, and in the provisions of the Ordinance relating to such a register, that there must be an entitlement on the part of companies to seek to correct misstatements which have been made, and a corresponding power on the part of the Registrar to accept for filing documents which seek to do this.

34.  To hold otherwise would lead to the strange consequence that once an error had been made, it could not (or at any rate could not easily) be corrected.  Such a result would seem inconsistent with the purpose of having a register of information concerning companies registered in Hong Kong.  The purpose of such a register must be to enable information relating to companies (whether relating to the identity of their directors and secretary, the structure of their share capital, the location of their registered office, or any other matter required to be recorded) to be placed on record for the public to be able to have access to that information.  To insist on a situation which perpetuates, or makes it difficult to correct, incorrect and inaccurate information would be contrary to that purpose.

35.  Moreover, the practice of the Registrar embodied in the external circular to which I have referred indicates that the Registrar (in my view correctly) regards himself as having the power to accept corrective returns or documents for filing in an appropriate case.

36.  As for the second point made by the Registrar, it does not seem to me that the Tongda case, properly understood, in fact supports the proposition advanced by the Registrar.

37.  In Tongda, an overseas company registered in Hong Kong had nominated one of its directors with an address in Hong Kong as its authorised representative for the purpose of accepting service of process or any notices required to be served on the company, pursuant to section 333(1)(c) of the Ordinance.  The director was also nominated by the company to be its authorised representative for the purposes of the Listing Rules of the Hong Kong Stock Exchange Limited, to serve as the company’s principal channel of communication with the Stock Exchange.  When the director was posted to the Mainland, the company resolved that he should be replaced as the authorised representative for the purposes of the Listing Rules.  It did not, however, resolve to replace him as its authorised representative for the purposes of section 333(1)(c).  The company’s company secretarial department mistakenly thought that his replacement related to both functions, and caused a return (“the Form F3”) to be filed belatedly notifying the Companies Registry of his replacement by his successor.  The company was then prosecuted for the late filing of this return.  It was only at this point that the company realised that it had been mistaken in filing the Form F3, when there had not in fact been any change of such representatives for the purposes of section 333(1)(c).

38.  The company then requested the Companies Registry to remove the mistakenly filed Form F3 from the Registrar, and to accept for filing two letters and a statutory declaration to explain the error.  The Companies Registry declined to do so, contending that the Company should simply file a fresh Form F3 to restore the position to that which it contended should have been the case.  This led to the company making an application seeking an order from the court to require the Companies Registry to do what the company had requested.

39.  Kwan J dismissed the company’s application, holding that the filing of the Form F3, even if only mistakenly, amounted to a representation by the company that the new authorised representative was authorised to accept service on behalf of the company, a representation which could have been relied on by someone effecting service on the new representative, on the basis of the information contained in the Form F3.  She held that as the attempt to withdraw the representation could not be effective as against anyone who had relied on it by effecting service on the company in accordance with it, the documents sought to be filed were manifestly ineffective, and so not capable of registration.  She rejected the attempt to remove the Form F3 from the file on the basis that this would only cause confusion.

40.  In the Tongda case, if the company had succeeded in removing the Form F3 which had been filed, and in stating instead that there had never been any change of authorised representative, the effect would have been that there would (or at least could) have been a withdrawal of the representation which it had made by filing the Form F3 in the first place.  Given the consequences of that representation, it is not surprising that Kwan J was not prepared to countenance a situation in which the representation would effectively be withdrawn.  It seems to me that the same result would have followed even if no regard were had to the representation effected by the filing of the Form F3 – as a result of section 338(1) of the Ordinance, service on an overseas company registered in Hong Kong is validly effected by service on the authorised representative notified under section 333(1)(c).  Thus, section 338(1) makes service on the authorised representative good service, so that the party effecting service on the company in this way can rely on section 338(1) alone, without having to rely on the ostensible authority of the authorised representative to accept service created by the filing of the Form F3.  Having regard to the effect of section 338(1), the filing of a Form F3 clearly has a legal consequence, regardless of whether or not there was any proper basis for its filing in the first place.  It would, I think, clearly have been inappropriate to have allowed the company to have removed it, and put in its place documents suggesting a different position, when it may have been relied upon by some third party.

41.  In this case, however, there is no suggestion that the original First Form SC11 should be removed from the register.  What is proposed is to file the Third Form SC11 to state the correct position, and explain the error that has arisen.  To the extent that the earlier filing of the inaccurate First Form SC11 gives rise to a representation as to the share capital structure of the Company, that representation will not be retrospectively affected by the filing of the Third Form SC11, which the Company now seeks to file.  The representation contained in the First Form SC11 will only be withdrawn or corrected with effect from the date of filing of the Third Form SC11.  To the extent that any member of the public who may have inspected the register in the meantime may have relied on it, evidence of the original representation will be preserved, so that it may be made use of if the need should arise, although it has to be said that, unlike the case of the erroneously filed Form F3 in the Tongda case, it is difficult to envisage circumstances in which someone might wish to rely on the representation contained in the First Form SC11 – at any rate, neither Mr Beresford nor Mr Ng were able to suggest any plausible situation in which this possibility might arise.

42.  I am therefore of the view that it is open to the Registrar to accept for registration an amending or corrective return where there has been an error or inaccuracy in a return originally filed.  However, the question that then arises is whether he is bound to do so, or whether he is entitled, as he has done in this case, to require the Company to make an application to the Court.

43.  Mr Ng submitted that as the Registrar was not under any obligation to verify for himself the truth of any statement made in any document delivered to him for registration (section 348A), this, coupled with the fact that the onus of ensuring the correctness of the information provided was on the Company submitting the information in question for registration (section 349), meant that where a Company filed a return in the required form, the Registrar had power, and indeed was obliged, to accept it for registration unless the document contained a defect of the sort provided for in sections 348(1) and (2).  Mr Ng suggested that for this purpose, there was no difference between the situation where a return was submitted for the first time, and the situation where (as here) a return was submitted with a view to correcting an error in an earlier return submitted by the Company.  However, he did accept that it was open to the Registrar to require an explanation of the error to be put forward, and that there might be cases in which it would be appropriate for the Registrar to leave the matter to be determined by the Court (although he did not agree that this was such a case).

44.  Mr Beresford, however, contended that while it might be open to the Registrar to accept an amending or corrective return for filing, it would not be right to require him to have to determine for himself whether or not this should be done otherwise than in clear cases.  To do so would be to impose a burden on the Registrar which was not placed on him by the Companies Ordinance, and moreover, a burden that the Companies Registry was not particularly well-equipped to deal with.

45.  In my view, while the Registrar has the power to accept an amending or corrective return, I do not think that it can be said that he is obliged to accept any such return that a company seeks to file without demur.  While the Registrar will naturally accept a document submitted for filing where it is the first filing in relation to a particular matter, given that he is under no obligation to verify the truth of the information contained in the document submitted for registration, and that there will be nothing to suggest that it is inconsistent with an earlier document or information registered by a company, where it is sought to file an amended return, it will generally be apparent that there is an inconsistency with information or documents which are the subject of an earlier filing.  In such a situation it seems to me (as Mr Ng accepted) that the Registrar is entitled to seek an explanation for the inconsistency, and for the proposed amendment.  If he is not able to satisfy himself as to the explanation given, it must be open to him to reject the proposed amendment or correction.  If he were not to do so, the situation might well arise in which the information relating to a company contained in documents registered at the Companies Registry could be riddled with contradictions, which would simply confuse the public rather than providing it with readily accessible information relating to the company concerned.

46.  Where the Registrar is satisfied with the explanation provided, for example in a case of a reasonably obvious typographical or clerical error, or where information is provided to explain the position clearly to his satisfaction, he will no doubt accept the documentation for filing.  However, in cases in which the Registrar is unable to determine for himself whether or not an explanation that is put forward should be accepted, it seems to me that he is entitled to reject the documentation proposed to be filed and leave it to the company to make the appropriate application to the Court.  I do not consider this to be an undue burden on the company, which is, after all, responsible for the accuracy of the information contained in documents submitted by it for registration in the first place.

47.  In this case, I was satisfied that the Company had, by the time the hearing took place, provided an adequate explanation of the error which it made in the First Form SC11 of 19 October 2005, and that the information contained in it was incorrect.  I therefore thought it right to make the declaration referred to in paragraph 2(1) above, which in effect declared that the capital structure of the Company as at 21 October 2005 was unchanged from what it had been previous to the filing of the First Form SC11.  Mr Ng also sought a declaration that the First Form SC11 was a nullity, as between the Company and the Companies Registry, having regard to the fact that it purported to record a change of capital structure which had never taken place.  This declaration was not seriously resisted by Mr Beresford, and I therefore made the declaration referred to in paragraph 2(2) above.  That said, I would add that it may not be necessary or appropriate in every case where it is sought to file an amended return for such a declaration to be made, and there may be cases, such as those involving notification of authorised representatives under section 333(1)(c) or the notification of the location of a company’s registered office (at which it may also be served with process), in which it would be inappropriate to make such a declaration.   Having made these declarations, it followed that the documents sought to be filed should be filed, and I so ordered.  Finally, Mr Beresford requested that I should direct that the First Form SC11 should remain on the register, and that the order I made should also be registered, so as to preserve the position in case any member of the public had relied on First Form SC11.  This appeared to be a sensible course to take, and I therefore gave the directions sought.

48.  So far as the costs of the application are concerned, while I have accepted the Company’s explanation for the inaccuracies contained in the First Form SC11 of 19 October 2005, I have also indicated that in my view it was not until the filing of Mr Ching’s second affirmation that a full explanation of the error that had been made was provided.  In these circumstances, I do not think that the Registrar can be criticised for having rejected the Third Form SC11 of 21 August 2006, thus requiring the Company to bring the matter before the Court for its determination.

49.  I shall therefore make an order nisi that the Company is to pay the Registrar his costs of this application, to be taxed on the party and party basis if not agreed.