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Lo Kam-pang And Others v Unlong Tung Yick Land Investment Co Ltd And Others

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date13 October 1980
Year1980
Judgement NumberHCMP712/1980
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP000712/1980 LO KAM-PANG AND OTHERS v. UNLONG TUNG YICK LAND INVESTMENT CO LTD AND OTHERS

HCMP000712/1980

HIGH COURT MISCELLANEOUS PROCEEDINGS NO. 589 of 1980
HIGH COURT MISCELLANEOUS PROCEEDINGS NO. 712 of 1980
HIGH COURT ACTION NO. 5074 of 1980

Coram: Mr. Commissioner Hooper in Chambers

Date of Judgment: 13th October, 1980

Mr. Charles Ching, Q.C. & Mr. W.Poon (Arthur Au & Co.) for Applicants

Mr. Miller, Q.C. & Mr. Peter Cheung (S.H. Leung & Co.) for 1st Respondent

Mr. Denis Chang & Mr. Patrick Chan (Yung, Yu, Yuen & Co.) for 3rd Respondent

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JUDGMENT

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HIGH COURT MISCELLANEOUS PROCEEDINGS NO. 589 OF 1980

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In the matter of Unlong Tung Yick Land Investment Co. Ltd. and in the matter of Section 114(2) of the Companies Ordinance Cap. 32 and in the matter of Order 102 Rule 2 of the Rules of Supreme Court between

Jabrin Limited Plaintiff
and
Unlong Tung Yick Land Investment Co. Ltd. Defendant

....................................................................................................................................

HIGH COURT MISCELLANEOUS PROCEEDINGS NO. 712 OF 1980

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In the matter of Unlong Tung Yick Land Investment Co. Ltd. and in the matter of the Companies Ordinance (Cap. 32) of the Laws of Hong Kong and in the matter of the Order granted by the Honourable Mr. Garcia on the 5th of July 1980 under High Court Miscellaneous Proceedings No. 589 of 1980 between

1. LO Kam-pang 2. LO Ying-tai 3. TANG Ming 4. YIP Mei-yung 5. IP Miu-ling 6. CHOW Hoi-shuen 7. CHENG Lai-hing 8. LAM Ying-cheung 9. KWOK Yau-man 10. CHAN Kam-hing 11. LAI Ying-wah 12. LAU Kam-on 13. CHEUNG Shuet 14. LEE Yee-leung 15. TAM Kai-tung 16. YUE Man-yip 17. NG Kwan 18. LAM Wood-lin and 19. TANG Ying Applicants
and
Unlong Yung Yick Land Investment Co. Ltd. 1st Respondent
CHAN Wai-to, LEE Tung-ying, TANG Man-chung and NING Siu-wah 2nd Respondent
Jabrin Limited 3rd Respondent

....................................................................................................................................

HIGH COURT ACTION NO. 5074 OF 1980

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BETWEEN
Jabrin Limited Plaintiff
and
Unlong Tung Yick Land Investment Co. Ltd. Defendant

Coram: Mr. Commissioner Hooper in Chambers

Date of Judgment: 13th October, 1980

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JUDGMENT

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1. This was anunusual and troublesome matter. There were before me for determination no less than 8 different applications of one sort or another. In the first of the above mentioned actions, namely High Court Miscellaneous Proceedings 589 of 1980 an order was made by Mr. Justice Garcia on the 5th July 1980 under the provisions of Section 114(2) of the Companies Ordinance Cap. 32. He directed that an extraordinary general meeting of the Unlong Tung Yick Land Investment Co. Ltd. (hereinafter called "The Company") be held on the 31st July this year at 11 a.m. at the India Room, Hilton Hotel. He also gave directions as to the business which should be conducted at this meeting and inter alia he directed that the quorum for such meetings should be two members of The Company. The main purpose of this meeting was to regularise the management and running of The Company, by ensuring that there would be a competent Board of Directors. However, on the 30th July 1980 an ex-parte application was filed by the 19 Applicants whose names appear as the Applicants in High Court Miscellaneous Proceedings No. 712 of 1980. The Respondents to the application were named as the plaintiff Jabrin Limited (1st Respondent), The Company itself (2nd Respondent), and a gentleman called CHAN Wai-to, a permanent director of the company and three of his co-directors (3rd Respondent). This ex-parte application was for stay of the order of Mr. Justice Garcia "until the hearing of the other summons filed herein on the 30th July 1980 or until further order". The "other summons" referred to in the ex-parte application was also filed on the 30th July 1980 between the same parties and also asked for a stay of the order of Mr. Justice Garcia, but in this case the Applicants were requesting that it be stayed "pending the determination of an action to be instituted by the Applicants herein for;

"(i) the rectification of the Register of the (The Company) by striking out therefrom the name of the (Jabrin Ltd) under Section 100 of the Companies Ordinance (Cap. 32):
(ii) the setting aside of the said order on the ground that the Jabrin Limited had no locus standi in making the said application."

2. In this "other summons" the Applicants also asked to be added as additional defendants to the proceedings (HCMP 589/80).

3. At 4.50 p.m. on the afternoon of 30th July 1980 the ex parte application came before Mr. Justice Liu, who adjourned the matter to the worning of the 31st July 1980 at 9 a.m. and who granted a stay in the meantime. On this occasion the solicitor for the Applicants Arthur Au under-took to use his best endeavours to notify all the parties concerned of the hearing on the 31st at 9 a.m. At the resumed hearing on the 31st July a stay was granted in terms of the summons that the order made by Mr. Justice Garcia be stayed until the hearing of the "other summons" or until further order, the Applicants having given the usual undertaking as to damages and the solicitors having undertaken to pay in to Court $20,000 within 7 days.

4. The extraordinary general meeting ordered by Mr. Justice Garcia was of course sheduled to take place at 11 a.m. that day. However, literally, at the 11th hour counsel for the Plaintiff (Jabrin Limited) were represented before the Court of Appeal by counsel in an urgent attempt to set aside the order which Mr. Justice Liu had made that same morning granting the stay. The Court of Appeal, which was at that time hearing another appeal, and with very little time to hear this appeal, were only prepared to modify the order of Mr. Justice Liu to the extent of allowing the extraordinary general meeting to be opened so that it could be adjourned to another date when there would be no court order restraining the holding of the meeting. This information was duly conveyed to Mr. Connolly at the India Room Hilton Hotel and as a result the meeting was adjourned indefinitely.

The Application To Stay

5. A fresh summons was filed on the 18th August 1980 in precisely the same terms as the "other summons" and this was the first of the 8 matters with which I had to deal at the hearing.

This application was for-

1. Stay of the order of Mr. Justice Garcia pending determination of an action to be instituted by the Applicants for
(i) rectification of the Register of the 2nd Respondent (The Company) by striking out the name of the 1st Respondent (the plaintiff Jabrin Ltd) under Section 100 of the Companies Ordinance,
(ii) setting aside of the said order on the ground that the 1st Respondent has no locus standi in making the application,
2. That the Applicants be added as additional defendants to these proceedings.

6. It was conceded before me that the Action which the Applicants contemplated instituting in para 1, is one of the three actions now before me, namely HCMP 712/80.

The 3 Notices Of Motion

7. In HCMP 712/80 the same 19 Applicants filed a Notice of Motion asking, inter alis, for the following relief-

(1) Pursuant to Section 100 of The Companies Ordinance that The Company's Register be rectified by striking out the name of Jabrin Limited therefrom and by substituting the names of the Applicants as holders of shares;
(2) that The Company be ordered to pay to the Applicants the damages they have or any of them have sustained by reason of The Company having made fault in entering any of/their names on the Register for that purpose that enquiries be directed;
(3) for a declaration that Jabrin Ltd has no locus standi in instituting the proceedings (No. 589 of 1980 above);
(4) for an order that the order granted by the Honourable Mr. Justice Garcia on the 5th July 1980 in HCMP 589 of 1980 be set aside.

8. As the summons of the 18th August and the Notices of Motion in HCMP 712 of 1980 were being heard at the same time the only practical purpose for a decision in the summons of the 18th August was on the issue of costs. I will come back to that. Since the 19 Applicants filed their Notice of Motion in 712/80 on the 31st July, two other Notices of Motion were filed on the 13th August 1980 and the 12th September 1980. The first of these was brought by two Applicants namely MAN Mui and WAN Kwai-ying (administratrix of LEE Ting-sang), and the other was brought by TANG Lin. They claimed the identical relief as claimed by the 19 other Applicants. Those then were four of the matters which came before me at the hearing.

Three Applications For A Receiver

9. There were also three Applications for a Receiver to be appointed. The first of these was brought by inter partes summons filed on the 9th September 1980 by Mr. CHAN Wai-to. The second was a summons dated the 10th September 1980 by Jabrin Limited. Both these applications were made in HCMP 589 of 1980. Mr. CHAN Wai-to joined in with Jabrin Limited in their application for a Receiver that a fit and proper person be appointed Receiver and Manager to collect, get in, receive the assets, property, and effects of the business of The Company and to manage its business. Both Mr. CHAN Wai-to and Jabrin Limited requested that the Receiver and manager be at liberty to act forthwith...

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