TSE TSZ FUNG in the capacity as the administrator of the Estate of TSE KWONG KING (Deceased) v. EVER POINT ASIA PACIFIC LTD

HCMP 395/2019

[2019] HKCFI 1216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 395 OF 2019

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REASONS FOR DECISION

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1.  The applicant is the administrator of the estate of his late father Mr Tse Kwong King (“the Deceased”). He obtained Letters of Administration in respect of the estate on 12 April 2018, as amended on 28 May 2018 and 29 November 2018.

2.  The respondent company has a share capital of HK$1 comprising one ordinary share fully paid up, registered in the name of the Deceased.  The Deceased was the sole director of the respondent and no reserve directors were ever appointed.

3.  Pursuant to the articles of association of the respondent:

   (1) the applicant, being the legal personal representative of the Deceased, is the only person recognised by the respondent as having any title to the Deceased’s interest in the Deceased’s shares;

   (2) however, before the applicant is registered as a member, he has no right to exercise any right as a shareholder at the meetings of the respondent.

4.  The respondent currently has no directors who can call a board meeting or pass a written resolution to register the applicant as a member.  Nor can any directors be appointed as the applicant cannot exercise any voting right as shareholder.

5.  In these circumstances, the applicant seeks an order for the holding of a general meeting of the respondent pursuant to section 570 of the Companies Ordinance, Cap 622, which provides that:

“ (1) This section applies if for any reason it is impracticable—

(a) to call a general meeting of a company in any manner inwhich general meetings of that company may be called;or

(b) to conduct the meeting in the manner prescribed by the company’s articles or this Ordinance.

(2) The Court may, either of its own motion or on application—

…

(b) by a member of the company who would be entitled to vote at the meeting,

order a general meeting of the company to be called, held and conducted in any manner the Court thinks fit.

…

(6) The legal personal representative of a deceased member of a company is to be regarded in all respects, for the purposesof this section, as a member of the company having the samerights with respect to attending and voting at a meeting of thecompany as the deceased member would, if living, have had.”

6.  Given that the applicant is the legal personal representative of the Deceased, he has locus to make the application pursuant to section 570(2)(b).

7.  I am satisfied that it is impracticable to call a general meeting of the respondent in the manner provided for under its articles of association.  

8.  In the present case, the applicant is the only person who is entitled to become a member of the respondent by way of transfer of the Deceased’s share to him in his capacity as personal representative of the Deceased’s estate.  The applicant seeks to convene a general meeting of the respondent so that he can be appointed as a director, and so that the transfer of the Deceased’s share to the applicant can then be registered.

9.  Accordingly, I order that:

   (1)  a general meeting be convened for the respondent (“the EGM”);

   (2)  the attendance of the applicant at the EGM shall constitute a quorum; and

   (3)  a resolution be put at the EGM and, if thought fit, be passed forthe appointment of the applicant as a director of the respondent.