WONG PUI SAU AND ANOTHER v. CHEUNG KWONG MIN

HCMP 1273/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1273 OF 2000

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J U D G M E N T

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1. On 17 March 1997, Ho Wing Wai died in a fatal accident.

2. On 24 October 1997, Kiu On Engineering Company Limited was convicted of a statutory offence pertaining to its failure to provide a safe system of work in connection with the fatal accident suffered by the deceased.

3. On 9 February 1999, Kiu On Engineering Company Limited commenced the process of voluntary winding-up. On that day, a declaration of solvency was made for the purposes of the members voluntary winding-up of the company. On 10 March 1999, a special resolution to wind-up the company was made and Cheung Kwong Min was appointed liquidator of the company. On 26 March 1999, the declaration of solvency and the special resolution were filed with the Company Registry pursuant to the terms of the Companies Ordinance.

4. It was not until 21 June 1999 that Letters of Administration were granted to two persons as the personal representatives of the deceased's estate.

5. On 3 December 1999, the liquidator filed the Statement of Account for the purposes of winding-up and the return of the final winding-up meeting. Consequently, pursuant to the terms of the Companies Ordinance, on 3 March 2000, the company was dissolved.

6. On 8 March 2000, the personal representatives of the deceased's estate took out a motion for what has sometimes been called a "Lazarus order", namely that under s. 290 of the Companies Ordnance, the court do, on an application being made for the purpose by any person who appears to the court to be interested, make an order upon such terms as the court thinks fit declaring the dissolution of the company to have been void, and there upon such proceedings may be taken as might have been taken if the company had not been dissolved.

7. On Monday 13 March, the Plaintiff on this Motion appeared before me when I queried the means of service of the Motion upon the liquidator. Pursuant to that, I gave an order for substituted service and on the same day, the papers were properly served on the liquidator pursuant to the means allowed by myself on Monday 13 March. I am therefore satisfied that there has been proper substituted service on the liquidator in the present case.

8. Coming then to the merits of the application, it is clear that under s. 290, the plaintiff in a proposed personal injuries action is an interested party for the purposes of a Lazarus order application. This is quite clear from Re Roehampton Swimming Pool Ltd [1968] 3 All E.R. 661. It is also clear that the liquidator is the correct respondent to the application, see Re Workvale Ltd [1991] BCLC 528. As far as the Registrar of Companies is concerned, although he has not been made a party for the present application, there is correspondence which has been filed with this court in which the Registrar of Companies has indicated that he has been informed of the present application and did not propose to attend the hearing of the application, subject to the requirement that the Applicant deliver to the Registrar of Companies a sealed copy of the order for registration within 7 days of the making of the order.

9. Accordingly, I am satisfied that this is a case where a declaration under s. 290 of the Companies Ordnance ought to be made, so that this proposed action can proceed against the company.

10. I would therefore make an order in terms of the draft handed up to me but amended by me at the first paragraph of the order that the court declares the dissolution of the company to have been void "pursuant to s. 290 of the Companies Ordnance", and Mr Liu has also indicated to me that it is not necessary for an order that certain days be excluded from the limitation period. As far as the costs of the present Motion is concerned, I would reserve costs.