EUREKA HAROUTOONIAN (formerly known as EUREKA JIMENEZ) v. THE REGISTRAR OF COMPANIES

HCMP 602/2024

[2025] HKCFI 5893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 602 OF 2024

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REASONS FOR DECISION

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1.  This is the application by Amended Originating Summons dated 27 February 2025 (the “Application”) for the restoration of Tagtrends Asia Limited (the “Company”) to the Companies Register, pursuant to sections 765(3)(a), 765(4), 767(3)(a) and 768 of the Companies Ordinance (Cap. 622).

2.  The Registrar indicated that it is neutral to the Application, and by its letter dated 30 October 2025 has identified various matters which prevent it from consenting to the Application. The Registrar sought to be excused from attending the hearing, but the Court sought the Registrar’s assistance on at least one of the matters raised in the Registrar’s correspondence, namely that of service of the Application.

3.  At the hearing, I adjourned the Application for a month to enable service on Mr Chan, a member of the Company. I give my reasons as follows.

4.  The factual background is set out in the first and second affirmations of the Applicant.

5.  The Company was incorporated in Hong Kong on 2 January 2003. It carried on trade, inter alia, as a garment supplier.

6.  On 13 January 2023, pursuant to section 746 of the Companies Ordinance, the Company was struck off the Companies Register.

7.  As of the date of the dissolution, the status quo of the Company was as follows:

7.1  Directors: The Company had formerly had two directors, being the Applicant and her husband, Mr Robert Michael Haroutoonian (“Mr Hart”). After Mr Hart passed away in the United States on 19 June 2022, the Applicant became and remained the sole director of the Company prior to its dissolution.

7.2  Shareholders: The authorised share capital of the Company was HK$10,000 divided into 10,000 shares of HK$1 each, all issued and fully paid up. The late Mr Hart held 9,000 of the issued shares of the Company, and the remaining 1,000 shares were held by Mr Chan Pui Fung (also known as Joe Chan) (“Mr Chan”). After Mr Hart passed away, the Applicant’s evidence is that she succeeded (or was entitled to succeed) Mr Hart’s interests in all respects, including his shares in the Company (although as the Registrar has pointed out, there is no documentary support for the Applicant’s affirmed evidence on this point).

7.3  Pending litigation: At the time of its dissolution, the Company and Mr Hart were co-Plaintiffs in HCA 1847/2011 (“HCA 1847”) commenced in 2011, claiming against various Defendants, including Mr Chan, breach of fiduciary duties, breach of trust, conversion and dishonest receipt and passing off inter alia. HCA 1847 is related to litigation proceedings in the United States, which the Applicant has been prosecuting on behalf of the Company against Mr Chan, for stealing the Company’s assets and fiduciary abuse.

8.  Sections 765(3)(a), 765(4), 766(4), 767(3)(a) and 768 of the Companies Ordinance are relevant to the present Application. In summary:

8.1  Any person “who was a director or member or creditor” (emphasis added) of the Company may make an application to the Court for the restoration of the Company that has been struck off the Companies Register: sections 765(3)(a) and (4).

8.2  An application under section 765(4) must be made within 20 years after the date of the dissolution or any further time that the Court allows: section 766(4)(a).

8.3  The Court may grant an application made under section 765(4) if it is satisfied that “the company was, at the time its name was struck off, in operation or carrying on business” or “it is otherwise just that the company be restored to the Companies Register”: section 767(3)(a).

8.4  If a company is restored to the Companies Register, the Court has the power to give directions and make orders as seem just for placing the company and all other persons in the same position as nearly as may be as if it had not been dissolved: section 768(2).

9.  In determining whether it is “otherwise just that the company be restored” under section 767(3)(a), the Court may consider “whether or not the Company has more than a shadowy prospect of establishing anything of value”: Easewin Properties Ltd & Anor v Registrar of Companies & Ors (No 2) [2004] 4 HKC 547 at §552G; Re Win Land Estate Limited [2018] HKCFI 2717 at §22.

10.  As a director of the Company, the Applicant has the relevant locus standi to make this Application. The Application is also made well within 20 years after the date of the dissolution.

11.  At the time the Company’s name was struck off, the Company had the HCA 1847 claim on foot against Mr Chan and others to recover the loss and damage caused to the Company. The Applicant states that the Company had (and has) every intention to pursue and proceed with the claim, as confirmed by its payments in the total sum of HK$600,000 into the Court as security for costs. Further, the monies paid into Court may be assets of the Company if the proceedings were not pursued.

12.  The statement of claim and the defence in HCA 1847 appear to me to indicate a real issue as to whether Mr Chan was in breach of his fiduciary duties to the Company in diverting business opportunities to another company, or (as pleaded in defence) whether Mr Chan and Mr Hart had agreed to restructure their business in light of the Company’s financial difficulties. It is not for this Court on this application to determine the merits of the Company’s claim in HCA 1847: Re Super Honour International Limited [2019] HKCFI 984 at §13-14. From the pleadings alone, I am inclined to consider there is more than a shadowy prospect of establishing anything of value.

13.  However, the Applicant’s evidence is rather thin on the progress of the action. It was launched in 2011. In June 2018, there was an order for the matter to be set down for a 7-day trial. In 2019, security for costs was paid into Court. There is no evidence in respect of the action between 2019 and 2023 when the Company was struck off.

14.  Unless and until the Company is restored, it will not be able to pursue its claim in HCA 1847 and/or seek to withdraw the money paid into Court by way of security for costs.

15.  It was submitted on behalf of the Applicant that she has filed all the outstanding annual returns on behalf of the Company and paid all outstanding registration fees. I note that the last annual return in evidence was as at 2 January 2019, and that Mr Hart (a director and shareholder) died in June 2022, prior to the Company being struck off on 13 January 2023.

16.  I turn to the position of the Registrar. The Registrar’s letter to the Court dated 30 October 2025 noted that “the Registrar is not in a position to deal with the Application by way of Consent Summons with the Applicant, as there is no clear evidence concerning the Applicant’s succession of the late [Mr. Hart]’s 9,000 shares of the Company as alleged in paragraph 7 of the Affirmation of the Applicant filed herein on 11 April 2025 and the Applicant’s decision not to bring notice of this [Application] to all the members of the Company including another shareholder [Mr. Chan] or obtain consent by all the members of the Company to the [Application]”.

17.  Insofar as the Applicant brings the Application as a director, then I agree with the Applicant that it is not necessary to prove that she has inherited Mr Hart’s shareholding for her to make the Application. Insofar as she wishes to take any stance on the Application as a member, the evidential position appears to be inadequate.

18.  It is undisputed that it is not necessary to have the members’ consent to the Application for the Court to make an order for restoration: Re Win Land Estate Limited [2018] HKCFI 2717 at §31. As a matter of common sense, a member may object to restoration for bad or irrelevant reasons, and that should not preclude a court from making a restoration order where appropriate.

19.  However, it is not clear to me that it is, whether as a general rule or otherwise, appropriate for an application to be made for restoration of a company by a sole director without notice to the members. No relevant authority on this point was cited to me before the hearing. At the hearing, Ms Kwan of the Registrar informed me that she had not been able to find any authority on the point.

20.  Ms Wong for the Applicant advanced three submissions in favour of proceeding with the Application without notice to the members.

21.  First:

21.1  “In the present case, Mr Chan is one of the Defendants in HCA 1847 which the Company is seeking to pursue. The Applicant considers that it is inappropriate to inform Mr Chan of the present proceedings or seek consent from Mr Chan, given that he is one of the Defendants in HCA 1847 and is hence in a position of conflict.”

21.2  This seems to me to echo the language which might be used on an urgent ex parte application where relief might be rendered otiose if the application was served in advance. That seems unlikely in the present case where HCA 1847 was issued in 2011.

21.3  By contrast, the Court has been told that the purpose of restoration is to realise an asset which is the litigation between the members, where such litigation apparently went to sleep 4 years before the Company was struck off.

22.  Second, the Applicant submitted that it was not unreasonable to not give notice where the Companies Ordinance did not mandate notice; there was an ability to apply to the Court for restoration despite not having all the members’ consent; and it was not feasible or possible to serve Mr Chan.

22.1  As to the last limb of the submission, it was immediately acknowledged by Ms Wong that there was no evidence as to service not being feasible or possible. Indeed, Ms Kwan noted that this case was unusual as the usual reason for non-service on members is an inability to serve, whereas in this case, it was expressly intentional to not serve Mr Chan.

22.2  It is undisputed that the Companies Ordinance does not mandate notice to the members; however, it is silent either way.

22.3  Although the members’ consent to a restoration application may not be necessary, that is a different issue from whether the members should be informed of the application to restore and given the opportunity to make representations.

23.  Third, Ms Wong submitted that there can be no reason against restoration of the Company. I am afraid I cannot accept that, whether as a general rule (as restoration is clearly not automatic), or in this case, based only on the Applicant’s evidence.

24.  Ms. Wong proposed two alternative courses of action, in the event I was concerned about non-service of the Application on Mr Chan:

24.1  Make the order for restoration of the Company, with liberty to Mr Chan to apply to discharge the order within 7 days;

24.2  Adjourn the Application to a date to be fixed, to allow for service on Mr Chan.

25.  Ms Kwan for the Registrar opposed the first course of action, primarily on the basis that 7 days was too short. For my part, if it seems appropriate to serve the members with the Application, then that is the course to be taken, rather than make the order without their knowledge, and place the burden on them to make an application.

26.  I see no good reason why, in this case, the members of the Company should not be served with the Application. Certainly, they are not in a position to veto the making of a restoration order. However, they are entitled to make representations to the Court if they consider that other matters should be brought to the Court’s attention.

27.  I note that, despite the Registrar requesting the Applicant to substantiate her bare assertion that she has inherited Mr Hart’s shareholding, in order to establish that she is now the holder of 90% of the shareholding, the Applicant has not provided such evidence.

28.  Accordingly, I made an order as follows: Upon the Applicant’s undertaking to serve Mr Chan as a member of the Company with the Application and supporting documents within 2 business days, the Application is adjourned for 1 month to a date to be fixed with 30 minutes reserved. Costs of the hearing reserved.