YU YU KIN AND THOMAS CHENG v. THE REGISTRAR OF COMPANIES

HCMP 1560/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1560 OF 2002

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J U D G M E N T

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1. This is an application by Motion by the former liquidators of a Company for an order that they be at liberty to apply for an order declaring the dissolution of the Company to have been void, notwithstanding that the time for the making of the application has expired, and for a declaration that the dissolution of the Company be declared void.

2. The matter arises in the following way. The Company was incorporated in or about 1962 for the purposes of development of a fairly large plot of land on which there was built a substantial building with a basement and 18 floors above.

3. The brochure of the building (which appears to have been issued in 1964) shows the layout or proposed layout of the various floors. In relation to the ground floor, which I am concerned with, the area is divided between 9 shops called no. 1, 2, 2A, 3, 4 , 5 , 6, 7 and 8. The entrance to the hall of the building (at which the lifts are located) is situated between shop no. 5 and shop no. 6. Shop no. 5 appears from this brochure to be a smaller shop than the other shops in that its frontage is narrower. The western boundary of this shop no. 5 appears to be in the middle of a column between shops no. 4 and 5. That was the position in 1964 when the brochure was printed.

4. In 1967, the Deed of Mutual Covenant was registered. Unfortunately, no plan is annexed and I have not been shown the first Assignment which is usually made contemporaneously with the Deed of Mutual Covenant. In any event, since the first Assignment was of a property on the 11th floor, it is unlikely that the plan of the ground floor would have been attached.

5. In any event, according to the Deed of Mutual Covenant, it is recited that there is constructed on the land, a building, known as Malahon Apartments, comprising shops or other non-domestic accommodation referred to as shops or offices in the basement and on the ground, 1st and 2nd floors and 252 flats on the 3rd to 18th floors inclusive. It is further recited that for the purposes of sale of shops; offices and flats in the said building, the land and building have been divided into 314 shares of which 20 have been allocated to the ground floor. From these two recitals, it would appear that 20 shares were to be allocated to the shops on the ground floor of this building. The common areas of the building were not expressly referred to in the Deed of Mutual Covenant.

6. The next significant event is that in April 1971, there was the first Assignment of a share in relation to a shop on the ground floor. That was by an Assignment registered under Memorial No. 806148. The plan to this Assignment only shows shop no. 1 and does not show the layout at all of the other shops on the ground floor, so it is of little assistance.

7. The next Assignment in respect of the ground floor was one in April 1972, registered under Memorial No. 889982. That was the Assignment of 17 shares in relation to shops no. 2, 2A, 3, 4, 7 and 8. The certified true copy of this Assignment which I have been given shows that in relation to the shop designated as shop no. 4, the eastern boundary of this shop no. 4 has been extended to beyond that originally shown in the brochure. Instead of the boundary being in the middle of the column referred to earlier, it has been pushed to the east to be flush with the eastern end of the column. Shop no. 5 is not referred to at all in the plan attached to this Assignment in 1972. Instead, between shops no. 4 and 6 there is a blank area on which is shown "Entrance". So it may have been the position that because of the pushing of the eastern boundary of shop no. 4 further to be flush with the eastern end of the column, the developer may have thought at the time that the remaining strip which remains of the original shop no. 5 may have been too narrow for any one to be interested in buying it.

8. Notwithstanding that, it cannot be said that by that the developer must have somehow given up the rest of that shop no. 5 as a common area because soon after that in December 1972, there was the Assignment for shop no. 6 and the plan for this shows shop no. 5. Because it was copied from the developer's brochure, the eastern boundary of shop no. 4 remained at the centre of the column instead of the true boundary which was shown in the plan attached to the Assignment registered under Memorial No. 889982. Be that as it may, this shows that that remaining strip of shop no. 5 was still being regarded by the developer as his.

9. The next significant event was that in 1977, the Building Authority apparently approved an amended plan. This amended plan shows that in the place of the original shop no. 5, there were to be two parts: one at the bottom called "shop" and one at the top called a "management office". This plan is slightly confusing because this still shows the boundary of shop no. 4 to be the original boundary in the middle of the column rather than the true boundary as per the plan attached to the Assignment registered as Memorial No. 889982. Nevertheless, it seems to me that at least as far as the bottom half of the remaining part of the original shop no. 5 is concerned, the developer was still regarding that as a "shop" and therefore premises to which the remaining 0.5 share of the 20 shares allocated to the shops on the ground floor would still apply.

10. It would now appear therefore that notwithstanding the dissolution of the Company, at least this bottom half of what is set out as "507A" with the western boundary as per the April 1972 plan still remains the property of the developer having been still reserved by it in 1977.

11. Accordingly, I am prepared to give the order sought which I have set out above, so long as it is understood that this court is not to be thought as agreeing with the submissions made that the part supposed to be the "management office" according to the 1977 plan has also been reserved. In relation to that part which is called the "management office", this court is not to be taken as agreeing or disagreeing with the submissions made before it this morning. As far as the issue whether that part called the "management office" had still been reserved by the developer in 1977 is concerned, that is a matter to be considered between the co-owners and the Company.