THE OFFICIAL RECEIVER v. THE REGISTRAR OF COMPANIES

HCMP 4920/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4920 OF 2003

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J U D G M E N T

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1. This is a Notice of Motion taken out by the Official Receiver as the former liquidator of China Underwriters Life & General Insurance Company Limited ("the Company") under section 290 of the Companies Ordinance, Cap. 32. The Official Receiver seeks an order that the dissolution of the Company be declared void and liquidation proceedings be continued as if the Company had not been dissolved and for the Official Receiver to be appointed liquidator of the Company with consequential directions on the declaration and appointment. The respondent is the Registrar of Companies.

2. The application arose in this way.

3. Following the petition presented by the Registrar General as the Insurance Authority on 7 December 1983, the Company was wound up by the court on 7 May 1984. The Official Receiver was appointed liquidator with a committee of inspection on 9 May 1984 under section 227B as a regulating order was made. The Official Receiver distributed 100% dividend to known creditors having filed proofs of debt and made a first and final, and later a supplemental, return of capital to the contributories.

4. The Official Receiver then applied for release and discharge as liquidator and for destruction of the books of account and documents of the Company. An order was made on 4 November 1999. A certificate of release of liquidator was registered with the Companies Registry on 26 November 1999. The books of account and documents of the Company were destroyed on 15 May 2000. Pursuant to section 226A(2), the Company was dissolved on 27 November 2001, 2 years from the registration of the certificate of release. Under section 290, the court can declare the dissolution void within 2 years of the dissolution, i.e. before 27 November 2003. The Official Receiver obviously has locus to make this application as the former liquidator, as he is a "person interested" in the context of section 290.

5. In June 2002, the Official Receiver was informed by HSBC Investment Bank Asia Ltd that they had been holding credit balances in the total sum of HK$2,208,147.84, being the free assets of the Company, and that amount has since been remitted to the Official Receiver. The Official Receiver is of the view that such moneys should be made available for the benefit of the Company's creditors and contributories. Upon the court declaring the dissolution void, the Official Receiver intends to make retrospective payment of dividend to creditors, if any further proofs of debt should be submitted, and a second supplemental return of capital to the contributories, after making provision for the fees and expenses of the Official Receiver.

6. It is appropriate in these circumstances to revive the Company to enable the Official Receiver to dispose of the free assets of the Company which have subsequently come to the knowledge of the Official Receiver after the dissolution.

7. As I have mentioned, the Registrar of Companies is made the respondent in these proceedings, because an order declaring the dissolution void has the effect of making any property of the Company which became bona vacantia on dissolution under section 292(1) and has not been disposed of since, revert to the Company. The Notice of Motion should therefore be served on the Secretary for Justice. There is, however, a memo from the Department of Justice to the Official Receiver dated 4 November 2003 stating that the Registrar of Companies has the authority to act as agent on behalf of the government on matters relating to bona vacantia under section 292.

8. The Registrar of Companies has no objection to this application, subject to certain directions being made part of the court order and payment of their costs of HK$4,000. These directions have been incorporated in the draft submitted to the court.

9. For the above reasons, I make an order in terms of the draft provided to me.