DESMOND CHUNG SENG CHIONG v. THE REGISTRAR OF COMPANIES

HCMP 1668/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1668 OF 2009

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D E C I S I O N

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1.  This is an application taken out by one of the former liquidators of Mezely Trading Limited (“the Company”) under sections 290(1A) and (1) of the Companies Ordinance, Cap. 32 seeking an order declaring the dissolution of the Company to have been void and that its name be restored to the register of companies and consequential directions.  The liquidators also seek an extension of time to make this application, as it is provided in section 290(1) that the application must be made within 2 years of the date of dissolution, subject to the power of the court to extend time in section 290(1A), if the court is satisfied there are exceptional circumstances justifying the extension.

2.  The purpose of declaring the dissolution of the Company void is so that the liquidators may deal with an outstanding amount of HK$528,642.15 held in the High Court in relation to CACV No. 311 of 1998.

3.  The Registrar of Companies has no objection to this application, subject to certain directions being made part of the court order and the payment of costs.

4.  The background to this application may be stated as follows.

5.  The Company was ordered to be wound up in HCCW No. 14 of 1999 on 10 May 1999.  Liquidators were appointed by an order made on 5 October 1999.  By an order on 29 June 2005, the liquidators were released from their appointments.  On 4 July 2005, it was ordered that the Company be dissolved as of that date.

6.  By a letter dated 6 July 2009 from the Registrar of the High Court to the Company and the liquidators, the Registrar stated there was an outstanding amount of HK$528,642.15 held in the High Court in relation to CACV No. 311 of 1998 refundable to the Company, and if no claim should be made within 30 days, the Registrar would apply to the Chief Justice for an order for the transfer of the said sum to the general revenue.

7.  As the Company was already dissolved by the order on 4 July 2005, it is necessary to obtain an order declaring the dissolution void for the Company to seek the refund of the said sum from the Registrar of the High Court.  If such an order is granted, the dissolution is void ab initio and the said sum would be re-vested in the Company and applied for the benefit of its creditors.

8.  Proofs of debt lodged by the creditors of the Company amounted to HK$43 million odd and US$2.9 million odd.  In the winding up of the Company, there was no dividend distribution and all the debts claimed in the proofs of debt remained unpaid.

9.  There are exceptional circumstances here to justify an extension of time to apply for relief under section 290(1).  Despite diligent efforts of the liquidators, the directors of the Company could not be located and only limited books and records of the Company were made available to them.  The liquidators were wholly unaware of the existence of the funds held in court until they received the letter dated 6 July 2009.

10.  I am satisfied an extension of time to make this application would not cause any prejudice to any party and would benefit the creditors of the Company.  The applicant, as a former liquidator of the Company, has locus to make the application.

11.  The solicitors for the liquidators were given to understand that the Registrar of the High Court would withhold an application to transfer the sum held in court to the general revenue pending the present application.

12.  This is an appropriate case to grant an extension of time and to grant relief under section 290(1).  I make the orders sought in paragraphs 1 to 7 and 9 of the draft order submitted to the court.