PERMANENT MUTUAL LTD v. S&C ENGINE GROUP LTD AND ANOTHER

HCMP 1788/2020

[2021] HKCFI 1094

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1788 OF 2020

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BETWEEN

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D E C I S I O N

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1.  I have before me an originating summons seeking the following orders:

“Pursuant to sections 633 and 637 of the Companies Ordinance (Cap 622), the duplicate of the branch register of members of the Company be rectified by (where necessary) striking out the name of Korea Securities Depository therefore as the holder of 3,960,307 shares and, in any event, by inserting the name of the Plaintiff as the holder of the said 3,960,307 shares since 9 December 2019 or alternatively 31 December 2019.”

2.  By the time this matter came on before me today, the Plaintiff’s shareholding had been registered as requested, by it, in the branch register of members.  Following compliance with the Plaintiff’s request, the Defendants’ solicitors—Dentons Hong Kong LLP—ceased to act for them.  The position, therefore, today is that it is not necessary to make the substantive order that has been sought.  Although I have been asked to adjourn the originating summons with liberty to apply, which I do.  I also understand that the 2^nd Defendant was not served and I make no order against it.

3.  The only issue is costs, not because it has been suggested by the Defendants, who as I have already noted are not legally represented any longer, and who were not represented at this hearing, should not pay the costs but rather whether or not as the Plaintiff says, they should be paid on an indemnity basis.  I can take this point shortly.

4.  Before the application was issued, the Plaintiff had written on a number of occasions requesting the Company to comply with sections 633 and 637 of the Companies Ordinance (Cap 622) and had no response to its request.  Similarly after the originating summons was issued, for some time the Company failed to comply with the request implicit in the originating summons.  It is argued by the Plaintiff that in these circumstances in which the Company has been given plenty of opportunity to comply with its legal obligations before the proceedings were commenced and could particularly once it had appointed solicitors, have readily agreed to comply with its legal obligations, but failed to do so, it is appropriate for the court to order the costs be paid on an indemnity basis reflecting the unsatisfactory manner in which the Company has dealt with the application.  I agree with this argument and I will, therefore, order that the costs are taxed if not agreed on an indemnity basis.