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HCMP 2220/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 2220 OF 2013
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IN THE MATTER OF DAYUAN INTERNATIONAL DEVELOPMENT LIMITED (大遠國際發展有限公司)
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and
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IN THE MATTER of Sections 111(2) and (3), 122 and 124 of the COMPANIES ORDINANCE (CAP.32)
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and
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IN THE MATTER of Order 102, Rules of the High Court (Cap. 4, subsidiary legislation)
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BETWEEN
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WU YANG (武洋) |
Applicant |
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and |
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DAYUAN INTERNATIONAL DEVELOPMENT LIMITED
(大遠國際發展有限公司) |
1st Respondent |
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LO FONG HUNG (羅方紅) |
2nd Respondent |
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FUNG YUEN KWAN, VERONICA (馮婉筠) |
3rd Respondent |
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| Before: Hon Anthony Chan J in Chambers |
| Date of Hearing: 14 November 2013 |
| Date of Decision on Costs: 14 November 2013 |
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DECISION ON COSTS
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1. There is consensus between the parties on the order to be made by the court. Accordingly, I make an order in terms of para 3 (b), as amended, of the Supplemental Submissions of the applicant dated 12 November 2013 (“Submissions”). I also make an order in terms of para 3 (c) of the Submissions but the documents to which the extension of time applies should be identified.
2. There remains a narrow issue on costs, namely, whether the costs of this application should be borne by the 1st respondent, which is offered by the respondents, or that they should be borne by the 2nd and 3rd respondents being the directors who are in default of their obligations under the Companies Ordinance, Cap 32.
3. The order granted by the court serves to remedy two defaults. Firstly, the profit and loss accounts and the balance sheets which were laid at the company’s AGM held on 31 December 2012 were not made up to a date falling not more than 9 months before that meeting. Mr Mok SC, who appears with Mr Wong SC for the respondents, submitted that such defaults have been overlooked by both sides until they were identified in the Submissions and that the costs incurred for this application have nothing to do with the same. There certainly is force in the submission. On the other hand, it is a fact that this application has served to remedy those defaults to the advantage of the 2nd and 3rd respondents.
4. Secondly, there is the default in laying the Group accounts for the year ended 31 December 2011. This must be regarded as a serious infringement by the 2nd and 3rd respondents in light of the repeated demands which have been made by the applicant from those accounts. I have been taken to the correspondence between the parties which suggests that the respondents have on 25 September 2013 offered to remedy this default at the AGM to be held at the end of this year. However, as pointed out by Ms Ismail SC, who appears for the applicant, there was no offer made on the costs of these proceedings. Indeed, at the last hearing which took place on the 2 October 2013, the position maintained by the respondents was that the applicant should bear the costs of these proceedings.
5. In these circumstances, I take the view that the 2nd and 3rd respondents should bear the costs of and occasioned by this application.
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(Anthony Chan) |
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Judge of the Court of First Instance |
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High Court |
Ms Roxanne Ismail SC, instructed by CWL Partners, for the applicant
Mr Johnny Mok SC and Mr William M F Wong SC, instructed by Li & Partners, for the respondents
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