JESUSA MENDOZA BENITEZ (in the Will called JESUSA BENITEZ), AS THE EXECUTRIX OF THE ESTATE OF NEIL CRAIG SATTERWHITE, deceased v. TIGER CONSULTING LTD

HCMP 1236/2024

[2024] HKCFI 2487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1236 OF 2024

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J U D G M E N T

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1.  This is the Plaintiff’s application pursuant to section 570 of the Companies Ordinance Cap 622 (“CO”)  for an order that (1)  an extraordinary general meeting of the Defendant be convened for the purpose of considering and, if thought fit, passing an ordinary resolution for the appointment of Natthip Satterwhite (“Mrs Satterwhite”)  as a director of the Defendant, (2)  attendance of the Plaintiff at the meeting be regarded as constituting a quorum; and (3)  notice of the meeting be dispensed with.

2.  I am satisfied that the relevant documents have been served on the Defendant.  The Defendant has not entered an appearance today.  I will proceed with the hearing.

3.  The late Mr Neil Craig Satterwhite (the “Deceased”)  passed away on away on 16 June 2018, leaving behind his last Will dated 9 June 2018 (the “Will”).  By the Will, the Plaintiff was appointed as the sole executor.

4.  The Defendant is a company incorporated in Hong Kong. The Defendant has a share capital of HK$1 comprising one ordinary share fully paid up, registered in the name of the Deceased as at the time of his passing away and to date. The Deceased was the sole director of the Defendant and no reserve directors were ever appointed.

5.  The Plaintiff applied for and obtained a grant of probate under Grant No HCAG005183/2022 (the “Probate”)  to the estate of the Deceased in Hong Kong, which consists of only the share held by the Deceased in the Defendant.

6.  Pursuant to Clause 1(iii)  of the Will, the share in the Defendant is to be bequeathed solely to Mrs Satterwhite.

7.  As the Deceased was the sole director of the Defendant and no reserve directors were ever appointed, the Defendant currently does not have any directors and no board meeting can be convened.

8.  Under the Articles of Association of the Defendant (Article 22), new directors may be appointed by ordinary resolution. Although where the Defendant has only one member, that member can satisfy the quorum requirement (Article 10(a)), there are no living members.

9.  Accordingly, it is impracticable to convene a general meeting of the Defendant since the death of the Deceased.

10.  The administration of the Deceased’s estate cannot be brought to a conclusion by the Plaintiff unless the share in the Defendant held in the name of the Deceased are transferred to Mrs Satterwhite who is the sole beneficiary of the share in the Defendant pursuant to the Will.

11.  Section 570 of the CO makes provisions for the court to order a meeting if it is impracticable to call a general meeting of a company in any manner in which general meetings of that company may be called or to conduct the meeting in the manner prescribed by the company’s articles or the CO.  Under section 570(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.  As set out in Ip Woon Shun v Good China Holdings Limited & Ors [2023] HKCFI 2306, the administrator of the estate of a deceased person who was the sole shareholder and director of a company prior to his/her passing away has locus standi under section 570(6)  of the CO to make an application for an order pursuant to section 570.  Without such an order, “it would not be possible for the administration of the deceased’s estate to be carried out and brought to a conclusion.”

13.  There is also no restriction that the applicant or the administrator of the estate must be the person sought to be appointed as a director of the company at the general meeting to be convened under the order pursuant to section 570. See Ip Woon Shun whereby an order was granted upon the application of the administrator of the estate for a general meeting to be convened for the purpose of passing a resolution to the effect that one of the beneficiaries (who was not the administrator)  be appointed director of each of the respondent companies.

14.  Having considered the evidence and the submissions made on behalf of the Plaintiff, I am satisfied that it is appropriate to make an order in terms of the Originating Summons §§1, 2 and 3. I also make no order as to costs.