COGI ENTERPRISES LTD v. THE REGISTRAR OF COMPANIES

HCMP 967/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 967 OF 2004

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J U D G M E N T

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1. I have before me two notices of motion issued under section 290(1) of the Companies Ordinance, Cap. 32 to declare void the dissolution of two companies, Chin Kam Development Company Limited ("Chin Kam") and MIL Limited ("MIL"). This is the second occasion that these companies have applied to court for an order of this kind, in order to resolve certain title problems of properties in Malahon Apartments ("the Building") at Nos. 501-515, Jaffe Road, Hong Kong. The background may be given as follows.

2. MIL, formerly known as Malahon Investment Company Limited, was incorporated on 8 October 1962. It was the developer of the Building, which was built in about 1966. It became dormant about the end of 1994 and went into voluntary liquidation in March 1995. It was dissolved on 13 September 1995.

3. On 26 April 2002, the dissolution of MIL was declared void by Yuen J (as she then was) in HCMP No. 1560 of 2002, for MIL to rectify the title problem of one of the shops and an area designated as management office on the ground floor. Subsequent thereto, MIL was again dissolved on 25 January 2003.

4. Chin Kam was incorporated on 25 January 1972. It had carried on the business of property development and owned a number of properties in the Building. Prior to its voluntary liquidation, Chin Kam was associated with Cogi Enterprises Limited ("Cogi"). The business of Chin Kam became inactive since February 1988. It went into voluntary liquidation in October 2001 and was dissolved on 19 January 2002.

5. On 3 April 2003, I made an order in HCMP No. 1114 of 2003 declaring void the dissolution of Chin Kam, for Chin Kam to rectify the title problem relating to two toilets on the ground floor of the Building. Subsequently, Chin Kam was dissolved once more on 16 March 2004.

6. Recently, Cogi has decided to sell its properties on the ground floor of the Building. It was discovered that in the plan annexed to the assignment of shops no. 2, 2A, 3 and 4 on the ground floor by Chin Kam to Cogi dated 11 February 1988, four pipeduct areas were not coloured to show that they were assigned, contrary to the common intention of Chin Kam and Cogi. The mistake was carried from the plan annexed to the prior assignment of shops no. 2, 2A, 3, 4, 7 and 8 on the ground floor by MIL to Chin Kam dated 24 April 1972, in that the pipeduct areas were also not coloured, contrary to the common intention of MIL and Chin Kam that they should be assigned to Chin Kam.

7. In support of this, an affirmation was filed by a director of MIL who had executed the assignment in 1972 and two other assignments in April 1971 and December 1972. This director referred to the other assignments and the plans annexed thereto and made the point that MIL had, by these other assignments, assigned to the relevant purchasers the pipeduct areas at the same locations on the first floor and the basement. Thus, there was common intention that the pipeduct areas on the ground floor should also have been assigned by MIL to the purchaser Chin Kam.

8. It is proposed that the mistakes are to be rectified by deeds executed by MIL, Chin Kam and Cogi to give effect to their common intention. For this purpose, it is necessary that the dissolution of MIL and of Chin Kam be declared void.

9. The Official Receiver and the Registrar of Companies have no objection to these applications.

10. I therefore make an order in terms of the draft order in each of the proceedings as submitted by counsel.