CHAN SHU YUEN and ANOTHER V. CHAN WAN HANG, STEPHEN

1993, NO. MP 3695

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. I regret that I am unable to accept the attractive submission made by Mr. Timothy Cheung that in this case I should adopt a similar approach to that adopted by Jones J. in Chan Fu Wa v. Chu Bon Mok unrep. H.C.M.P. No. 280 of 1993.

2. Article 71 of the Articles of Association of Tai Choy reads :-

" The seal of the company shall not be affixed to any instrument except by the authority of a resolution of the board of directors, and in the presence of a director and of the secretary or such other person as the directors may appoint for the purpose : and that director and the secretary or other person as aforesaid shall sign every instrument to which the seal of the company is so affixed in their presence."

3. The Sole Corporate Director attested the affixing of the Company's seal. I accept Mr. Andrew Cheung's submission that such execution was without the authority of the order of Directors of Tai Choy and was contrary to the Articles Association. This reasoning was in conformity with the view expressed by Godfrey J. in Peking Fur Store Ltd v. Bank of Communication H.C.M.P. No. 2083 of 1993.

4. Fortunately, this is not a serious problem. Mr. Andrew Cheung on the authority of Camberwell and South London Building Society v. Holloway (1879) 13 Ch.D. 754 accepts that it is within the power of the Vendor to obtain a confirmatory assignment from the Registrar of Companies, Tai Choy having since been liquidated.

5. Completion is not due to take place until later in the year so this should not prove to be a problem.

6. Thus I am prepared to make a Declaration in the form requested by Mr. Andrew Cheung namely :

"Notwithstanding that a good title has been shown to the Property, the Defendant is obliged to get in and convey to the Plaintiffs the legal title to the Property, on or before completion."

7. From the practical point of view if I make that order all the problems can then be resolved.