HAN CAREY AND ANOTHER v. GET PROFIT LTD

HCMP 1339/2024

[2024] HKCFI 2892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1339 OF 2024

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BETWEEN

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REASONS FOR DECISION

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A. Introduction

1.  This is the hearing of the Originating Summons dated 29 July 2024 (“Originating Summons”) taken out by the Applicants pursuant to section 570 of the Companies Ordinance (Cap. 622) (“CO”). At the hearing, I made an Order in terms of paragraphs 1 to 5 of the Originating Summons. These are the reasons for my decision.

2.  The Respondent (the “Company”) is a company incorporated in Hong Kong on 2 May 1991.

3.  The Company was at all material times and is still the registered owner of Apartment Flat on 3/F, Cliffview Mansions, 23 Conduit Road, Hong Kong (the “Property”).

4.  At all material times since 11 October 2018, HAN CONWAY (韓克武) (the “Deceased”) was the sole director and the sole shareholder of the Company.

5.  However, on 11 October 2023, the Deceased passed away. He was survived by his lawful wife, Shirley Han and the Applicants. The Company has no other living director or member.

6.  Pursuant to the Will of the Deceased dated 26 March 2019, the Applicants were appointed executors of the estate of the Deceased (the “Estate”).

7.  On 2 May 2024, probate of the Estate was granted to the Applicants.

B. Section 570 of the Companies Ordinance (Cap. 622)

8.  Section 570 of the CO provides, inter alia, as follows:-

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

(a) to call a general meeting of a company in any manner in which general meetings of that company may be called …

(2) The Court may, either on 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.

(3) If the order is made, the Court may give any ancillary or consequential directions that it thinks expedient.

(4) Directions given under subsection (3) may include a direction that one member of the company present at the meeting in person or in proxy is to be regarded as constituting a quorum.

…

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

C. Discussion

9.  In light of s570(6) of the CO, I am satisfied that the Applicants have locus standi to make the application.

10.  As the Deceased had passed away, the Company has no other directors who can convene a board meeting or pass any written resolution to register the Applicants as members of the Company.

11.  Further, my attention was also drawn to Article 32 of the applicable Table A, which provides that, prior to being registered as a member, a person entitled to a share by reason of the death of the holder shall not be entitled to exercise any right conferred by member in relation to meetings of the company.

12.  As the Applicants cannot exercise any voting right as a member of the Company, no director can be appointed to the board of the Company.

13.  In the circumstances, I am satisfied that it is impracticable to call a general meeting of the Company pursuant to its articles of association.

14.  On the facts of the case, I am also satisfied that notice for the general meeting be dispensed with, when the Applicants would be the only attendants.

15.  In the premises, I make an Order in terms of paragraphs 1 to 5 of the Originating Summons. I thank Mr Yu for his assistance.