QUESCO HOLDINGS LTD v. QUESCO SYSTEMS LTD AND ANOTHER

HCMP 81/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 81 OF 2007

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D E C I S I O N

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1.  This is an application by originating summons taken out by Quesco Holdings Limited, seeking an order that one share of Quesco  Systems Limited, the 1^st defendant herein, standing in the name of Yu Cheuk Sin, the 2^nd defendant herein, as the nominee for the applicant, be transferred to the applicant and that the transfer be entered on the register of members of the 1^st defendant.  The application first came before the court on 26 January 2007.  It was adjourned for the applicant to seek an order for substituted service of the originating summons and supporting affirmation on the 2^nd defendant.  That order was obtained from the Registrar on 21 June 2007 and was complied with on 7 August 2007.  Hence, the application was restored for hearing today.

2.  The 2^nd defendant was an employee of the applicant at the material time and he held one share in the 1^st defendant as the nominee and for the benefit of the applicant.  He executed a declaration of trust on 17  March 2000 which was exhibited in the supporting affirmation of the applicant.  By the declaration of trust, the 2^nd defendant undertook when called upon to do so by the applicant to transfer the share he held as the applicant may direct and for such purpose he had executed an instrument of transfer of the share he held.  He had also irrevocably appointed the applicant as his attorney, to insert the name of such person as the applicant shall nominate to take a transfer of the share.

3.  The applicant and the 1^st defendant are, however, unable to locate the instrument of transfer or the bought and sold notes signed by the 2^nd defendant in the applicant’s favour.  The 2^nd defendant left the employment of the applicant in March 2006 and despite repeated attempts, the applicant has not been able to locate the 2^nd defendant.  It is appropriate in the circumstances to grant this application. 

4.  I make an order that the one share of the 1^st defendant now standing in the name of the 2^nd defendant as nominee for the applicant be transferred to the applicant.  I further order that the transfer be entered on the register of members of the 1^st defendant. 

5.  I make no order as to the costs of this application.