IN THE COURT OF FINAL APPEAL
Application for Leave to Appeal
FAMV No. 1 of 1997
||MAX SHARE LIMITED
||CHINA RESOURCES (HOLDINGS)
||NG YAT CHI
Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Nazareth NPJ
Date of Hearing: 8 October 1997
Date of Decision: 16 October 1997
Chief Justice Li:
1. This is the determination of the Appeal Committee.
The Petition and the striking out
2. On 10 June 1996, the petitioners Mr Ng Yat Chi ("Mr Ng") and Mr Choy Bing-wing ("Mr Choy") presented a petition for the winding-up of Max Share Ltd ("the Company") on the just and equitable ground alternatively for an order under s 168A of the Companies Ordinance, Cap. 32, requiring the majority shareholder, China Resources (Holdings) Ltd ("China Resources") to purchase their shares in the Company.
3. The Company and China Resources applied to strike out the petition on the ground that neither petitioner had the necessary standing to present the petition. On 3 December 1996, Mr Justice Rogers acceded to the application, accepting that neither petitioner had standing, and struck out the petition in its entirety.
4. The petitioners then appealed to the Court of Appeal. That Court took the view that although Mr Choy did not have standing to petition, Mr Ng did. Accordingly, by its judgment handed down on 28 May 1997, the Court of Appeal, while dismissing Mr Choy's appeal, allowed Mr Ng's appeal.
5. Following that, the Company and China Resources applied to the Court of Appeal for leave to appeal to appeal to the Privy Council in order to challenge the Court of Appeal's decision that Mr Ng had standing to petition. On 24 June 1997, the Court of Appeal refused such leave.
6. There are two application before us. First, by motion filed on 22 July 1997, the Company and China Resources ("the applicants") have applied to us for leave to appeal to the Court of Final Appeal against the Court of Appeal decision that Mr Ng had standing to petition. Secondly, by summons filed on 22 September 1997, Mr Ng applied for an Order that the motion for leave to appeal be dismissed.
7. Mr Ng is an undischarged bankrupt. On 3 February 1997 a creditor not concerned in the proceedings before us obtained a money judgment against him. He failed to satisfy it. The judgment creditor issued a bankruptcy notice. He still failed to pay. On 19 June 1992 a bankruptcy petition was issued against him followed by a receiving order on 29 July 1992. On 17 August 1992 his creditors resolved that he should be adjudication bankrupt. On 28 August 1992 an adjudication order was made. The Official Receiver was the receiver and is the trustee in bankruptcy.
8. Mr Ng was at all material times and still is on the register as the holder of 98,000 shares in the Company ("the shares"). He became indebted to Mr Choy and Charged the shares to him at a time before the creditor obtained his judgment against Mr Ng.
9. Mr Choy obtained (i) on 9 April 1992 a charging order absolute over the shares and (ii) on 28 July 1992 an order that the shares should be sold by public auction. At the auction on 10 August 1992, Mr Choy acquired the share. The bought and sold notes and the transfer form were executed by the Official Receiver as "Official Receiver and Trustee" and bear the date 25 August 1992.
10. On 21 August 1992 Mr Choy had instituted proceedings against the Company to have the shares registered in his own name. But he was unsuccessful. On 9 December 1992, the Official Receiver applied to the Company to have the shares registered in his own name. But this application was refused.
11. On 28 January 1993, the Official Receiver...