IP WOON SHUN v. GOOD CHINA HOLDINGS LTD AND OTHERS

HCMP 1082/2023

[2023] HKCFI 2306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1082 OF 2023

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BETWEEN

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D E C I S I O N

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1.  The applicant, a solicitor, is the administrator of the estate of the late Him Pao Hoeung (“the deceased”) who died intestate in Cambodia on 3 December 2021 and domiciled in Hong Kong.

2.  The application is for an order pursuant to section 570 of the Companies Ordinance, Cap 622 (“the CO”) to convene general meetings of Good China Holdings Limited, Headway Inc Limited and Heroes Enterprises Ltd (collectively “the respondent companies”) which were wholly owned by the deceased who, prior to his death, was the sole shareholder and director of each of them.

3.  The deceased left surviving him his widow, Phu Mylene, and 4 adult children, Michael, Clarisse Nathalie (“Clarisse”), Stephanie and Lynda (collectively “the beneficiaries”).

4.  On 31 May 2022, the deceased’s widow renounced her right and title to letters of administration to his estate and on 10 June 2022 Clarisse appointed the applicant to be her lawful attorney for the purpose of obtaining letters of administration to the deceased’s estate.

5.  The beneficiaries instructed the applicant, through his firm to prepare a deed of family arrangement for the distribution of the deceased’s estate.

6.  On 24 March 2023, letters of administration were granted to the applicant, the lawful attorney of Clarisse, limited for her use and benefit until further representation is granted.

7.  As shown in the schedule of assets and liabilities dated 19 September 2022 and the additional schedule dated 21 December 2022, the deceased held the only share issued in each of the respondent companies.

8.  As the companies have no director, no board meeting can be convened.

9.  Under the Articles of Association of the respondent companies, new directors may be appointed by ordinary resolution. Although where a respondent company has only one member, that member can satisfy the quorum requirement, there are no living members.

10.  The upshot is that since the death of the deceased, no general meeting could be convened.

11.  Section 570 of the CO provides as follows:

“570. Power of Court to order meeting

(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; 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 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.”

12.  In the present case, the beneficiaries of the deceased’s estate all consent to the appointment of Clarisse to be the director of each of the respondent companies.

13.  I am satisfied on the facts that section 570 (6) applies and the applicant has locus standi to make this application for an order pursuant to section 570. Without an order under section 570, it would not be possible for the administration of the deceased’s estate to be carried out and brought to a conclusion.

14.  Accordingly, I have no hesitation in making the order sought, namely, that

(1) a general meeting of each of the respondent companies be convened for the purpose of considering and if thought fit passing the resolution set out in the Schedule to the originating summons to the effect that Clarisse be appointed director of each of the respondent companies with immediate effect; and

(2) the applicant may hold the general meetings at such place and time as he sees fit and the attendance of the applicant at the general meetings shall constitute a sufficient quorum.