RE TOYOTA TSUSHO CORPORATION

HCMP2072/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2072 OF 2011

------------------------

------------------------

------------------------

JUDGMENT

------------------------

1.  This is an application by the Applicant, Toyota Tsusho Corporation, for a Vesting Order pursuant to section 45(b)(iii) and (g) of the Trustee Ordinance, Cap. 29, Laws of Hong Kong.

2.  This application concerns the property known as “All Those 11 equal undivided 616^th parts or shares of and in ALL THOSE pieces or parcels of ground registered in the Land Registry as The Remaining Portion of Kowloon Marine Lot No. 69, The Remaining Portion of Kowloon Marine Lot No. 86, Section M of Kowloon Marine Lot No. 40, The Remaining Portion of Section J of Kowloon Marine Lot No. 40 AND of and in the messuages erections and buildings thereon together with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT Work Shop A2 on 3^rd Floor Hang Fung Industrial Building Phase 2 No. 2G Hok Yuen Street Kowloon” (“the Property”).

3.  The evidence in this case showed that the Applicant was and still is a company incorporated under the laws of Japan.

4.  Kasho Company Ltd (“Kasho”), now a dissolved company, was also incorporated under the laws of Japan and was at one time registered in Hong Kong as an overseas company, but that registration was removed in 1965 due to the cessation of its having a place of business in Hong Kong.

5.  Kasho and one Lim Ying Ying Ltd (“the Co-owner”) were and still are in name, the co-owners of the Property as tenants-in-common in equal share.

6.  Pursuant to a Merger Agreement entered between the Applicant and Kasho on 22 December 1999, Kasho was merged with the Applicant and was taken over by the Applicant under the laws of Japan. Under Article 7 of the Merger Agreement, the Applicant would take over the assets and properties of Kasho and also assumed its liabilities and obligations.

7.  After the merger with the Applicant, Kasho was dissolved under the laws of Japan on 3 April 2000 pursuant to Article 1 of the Merger Agreement.

8.  Due to inadvertence, the Applicant did not discover that Kasho had a half share in the Property and therefore did not take action to have Kasho’s half share of the Property vested in it.

9.  Under the laws of Japan, where there is a merger by absorption, which is the case with the Merger Agreement between the Applicant and Kasho, the dissolved company may not be restored unless there is a final and binding judgment of invalidation of the Merger by Absorption given pursuant to an action filed by a shareholder, director, statutory authority, liquidator, bankruptcy trustee or disapproving creditor within six months from the date of the registration of the merger.

10.  In the present case, the merger of Kasho with the Applicant pursuant to the Merger Agreement was registered on 3 April 2000, being the same day that Kasho was dissolved. Thus the limitation period of 6 months for the invalidation of the merger would have ended on 2 October 2000. There was however, no action taken or filed within that six months period for the invalidation of the merger.  Therefore under Japanese laws there can be no question of restoring the dissolved company.

11.  I am therefore satisfied that under section 45(b)(iii) of the Trustees Ordinance, Kasho, being a corporation which has been dissolved, it would be in order for this application to proceed by way of an ex parte Originating Summons.

12.  Accordingly, I would make the order sought by the Applicant, namely, that one equal undivided half share of and in the Property be vested in the Applicant for all the legal and beneficial estate and interest therein in the name of Kasho Company Limited at the date of this order and that there be no order as to costs.