LI FEI YU v. WDI INTERNATIONAL (HK) LTD AND OTHERS

HCMP 2928/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2928 OF 2014

______________________

______________________

______________________

HCMP 743/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 743 OF 2015

______________________

______________________

______________________

AND

HCMP 1252/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1252 OF 2014

______________________

______________________

______________________

(HEARD TOGETHER)

________________

D E C I S I O N

________________

1.  On 11 November 2014 Li Fei Yu (Mr. Li) issued an originating summons in HCMP 2928 of 2014 seeking an order for the holding of annual general meetings of WDI international (HK) Limited (Company) for the financial years 2012, 2013 and 2014. He holds 6000 shares in the company. Melvin and Larry Waxman hold 3000 and 1000 shares respectively. At the time of the application all three were directors. The Waxmans were made defendants to the application. I heard that application on 21^st of January 2015. The application was not attended by the two other defendants to the proceedings, namely, Melvin Waxman and Larry Waxman. The order sought was in conventional terms and I made an order in the terms of the summons. Paragraph 1 of the order provided that at the annual general meeting the company should consider the resolutions described in the schedule to the order. Paragraph 3 provided that the attendance of one member would constitute a quorum. Paragraph 3 of the schedule contained a proposed resolution in respect of the appointment of directors. At the time of the annual general meeting all the directors would have retired by virtue of regulation 7 of its articles. The resolution was that the directors of the company be appointed as the directors of the company for the succeeding year. At that meeting Mr Li voted against the appointment of the Waxmans. The Waxmans did not attend.

2.  On 20 April 2015 in HCMP 2928/2014 Waxmans applied to have that resolution declared invalid.  The underlying assumption behind the application would appear to have been that the order that I had made required each shareholder to vote in favour of the resolution.  It seems to me that this is probably wrong but it’s not a matter that I now have to decide.  Only on 21 May 2015 the Waxmans sent to court a summons for an order that they have leave to withdraw the summons, the hearing be vacated and there be no order as to costs.  That summons was sent under cover of a letter dated 21 May 2015 from the Waxmans’ then solicitors Oldham, Li & Nie.  Enclosed with the letter were similar summonses in two other sets of proceedings.  The first in time to be issued is HCMP 1252 of 2014 which is an unfair prejudice petition commenced by Melvin Waxman against Mr. Li.  The Petition, which was subsequently amended, was issued on 23 May 20124 and had also been listed before me for hearing today.  The summons sought orders for leave to withdraw the Amended Petition, vacation of the hearing date and no order as to costs.

3.  The second proceedings is HCMP 743 of 2014.  This is an originating summons issued by the Waxmans against the Company and Mr. Li seeking the same order sought as the summons of 20 April 2015 in HCMP 2928 of 2014.  That summons was also listed to be heard before me today.  The summons sent to court also sought orders for leave to withdraw the originating summons, vacate the hearing dates and no order as to costs

4.  If a party wishes to withdraw an application or proceedings the court will generally allow him to do so, but as one would expect he would normally have to pay the costs.  The exception would most commonly be where the proceedings are withdrawn because the defendant has agreed to do what the applicant sought in those proceedings. The court will not normally look into the merits of the application.  As I explain in my decision in Chan Kai Yan & another v Leung Chi Kit & others [1] it is only in cases where it is unclear which party has been successful that the court will consider the substantive issues.

5.  In the present case the Waxmans have decided not to proceed with their applications and have withdrawn instructions to their solicitors.  Melvin Waxman has not attended today but sent written submissions seeking to persuade me that it would be unfair to order costs against him and his son because they should not have been removed as directors.  It seems to me that this is not a matter that the court should or needs to go into.

6.  I will order that the various proceedings and applications be dismissed and that the costs are paid by the Waxmans on indemnity basis with certificate for two counsel.