CHAN WAI HEI AND OR WAI LIN WINNIE v. THE REGISTRAR OF COMPANIES

HCMP 1114/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1114 OF 2003

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J U D G M E N T

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1. This is in application under s. 290(1) of the Companies Ordinance, Cap. 32 to declare void the dissolution of Chin Kam Development Company Limited ("the Company"). The application is made by Mr Chan Wai Hei and Miss Or Wai Lin Winnie, the former joint and several liquidators of the Company.

2. The application arose in this way. The Company which was incorporated in 1972 had carried on the business of property development and owned a number of properties at Malahon Apartments in Jaffe Road, Hong Kong. The business of the Company has become inactive since February 1988. On or about 11 February 1998, the Company assigned its remaining properties in Malahon Apartments to its associated company, Cogi Enterprises Limited ("Cogi").

3. On 8 August 2000, the members of the Company passed a special resolution that the Company be wound up and the applicants be appointed liquidators. A declaration of solvency was made by the directors and a notice of appointment of the liquidators was filed with the Companies Registry.

4. On 18 October 2001, a final general meeting of the Company was convened and the final statement of account was laid before the meeting. The notice of the meeting was advertised and a return of the meeting was duly filed with the Companies Registry. Pursuant to s. 239(4) of Cap. 32, the Company was dissolved on or about 19 January 2002. The directors and liquidators had thought that all the assets owned by the Company had been disposed of.

5. Recently, Cogi sought legal advice as to the properties assigned to it by the Company in the assignment in February 1988. It was discovered that there may be a title problem in that the toilets and a narrow strip of land leading to the toilets on the plan annexed to the mortgage had not been coloured in the manner as stated in the schedule to the assignment. So there may be an argument that the ownership of the toilets and the narrow strip of land would still remain with the Company unless a deed of rectification is to be executed by the Company and Cogi to give reflect to their common intention that such properties were also to be assigned to Cogi.

6. Hence, the application is made to declare the dissolution of the Company void so that proper steps may be taken by the Company and Cogi to rectify the potential title problem. The Registrar of Companies does not oppose the application on the basis that the applicant is to comply with certain terms and pay his costs.

7. In the circumstances, I make the following order:

(1) the dissolution of the Company is declared to have been void under s. 290(1);

(2) the applicants are to be appointed joint and several liquidators in the voluntary winding-up of the Company under s. 252(1) and they are to give notice of their appointment within 21 days hereof by publishing a notice in the Gazette and delivering to the Registrar of Companies for registration a notice of appointment under s. 253(1);

(3) the applicants do file with the Registrar of Companies a sealed copy of this order for registration within seven days hereof;

(4) upon delivery of the order to the Registrar of Companies, if the name of the Company is the same as, or in the opinion of the Registrar of Companies, is too like a name appearing at that time in the index of company names maintained by the Registrar of Companies, the applicants shall change the name of the Company within thirty days of the notice that may be issued by the Registrar of Companies directing the Company to change its name;

(5) the applicants do file with the Registrar of Companies all outstanding liquidators' statements within thirty days hereof; and

(6) the applicants do pay the Registrar of Companies agreed costs of this application in the sum of HK$4,000.00 within three days hereof.