XCHRX HWANG DA-LIN AND ANOTHER v. WONG CHUNG KEUNG AND OTHERS

HCCW 643/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 643 OF 1996

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DECISION (ON SUMMONS FILED ON 24 APRIL 2001)

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1. This is an application by summons for an order that the order I made on 29 March 2001 be amended by reason of a clerical error arising in the unit price of the shares. In the first place, I would note that it would not be necessary for the order to be "amended" as such because after being notified by the parties of this clerical error, the Court has given directions that the order should not be drawn up.

2. Accordingly, it would only be necessary for me to indicate that in the order to be drawn up, the correct unit price for the shares referred to should be HK$55.859 and for the avoidance of doubt, I would state that the order should be that the Receivers and Managers be authorised to utilize the money deposited in the account of the Company to enable the Company to acquire 20,000 of Wong Shi Hoi, Carson's shares and 10,000 of Hwang Da-lin's shares in the company at HK$55.859 per share. There is no objection for the time for completion of the acquisition of shares to be extended to 14 days from today.

3. In relation to paragraph 3 of the summons, that is simply a statement of the amount that would be payable to the transferors and it is not necessary, in my view, for a specific order to be made in that regard.

4. In relation to the costs of the summons, it would appear that the error as to the unit price is quite a substantial error. It first came about in a letter from the Petitioners' solicitors of 24 February 2001. Thereafter the Receivers' solicitors had also proceeded on the basis of that incorrect unit price, and on the basis of that undisputed erroneous unit price, the order of 29 March 2001 was made.

5. In my view, the costs of this application ought to be borne by those who first perpetrated the error and therefore I would order that the costs of the summons including the hearing of the summons today, be borne by the Petitioners. I will hear counsel shortly as to whether the Petitioners' solicitors wish to show cause if I were to order that the costs be borne personally by the Petitioners' solicitors.

6. In relation to stamp duty which has been brought up by the Receivers' solicitors, it would appear to me that if any stamp duty is payable (which is something no doubt that the parties' lawyers would look into) I would have thought that these stamp duty requirements are expenses arising from the Order that the Respondents acquire the Petitioners' shares and therefore, I think it would be consistent with the orders that had been made in this case by Le Pichon J when she heard the case, that any stamp duty payable should be borne by the Respondents. In this regard, I would order that the expenses be borne, in the first instance, by the Company, and the Respondents should then reimburse the Company in that amount.

7. I will now hear the Petitioners' solicitors as to whether they should not bear the costs of the application personally.