Wing Sze Tiffany Wong & Ors v Wong Sai Chung (汪世忠) & Ors [2024] 3 HKC 571, [2024] HKCFI 539 (Christopher KH To)
Anson Wong SC, Martin Kok and Christopher KH To represented the 1st, 4th and 5th respondents in Wing Sze Tiffany Wong & Ors v Wong Sai Chung (汪世忠) & Ors [2024] 3 HKC 571, [2024] HKCFI 539.
The Liquidators of the Company applied ex parte for an order to convene a meeting of the Company’s Hong Kong subsidiaries with one person constituting proper quorum for the meeting and also for directions. The 1st and 4th respondents then provided the undertakings that they would not act or hold themselves out or otherwise give any instructions, without leave of the Court, as a director of the Company, or to represent the Company in any other capacity (without prejudice to a specified appeal), which included voting or purporting to vote regarding the Company’s shareholdings in its wholly owned BVI subsidiaries.
Held, refusing to make an order under section 570 of the Companies Ordinance (Cap 622) in light of the undertaking and refusing to make an order under s 200 of the Ordinance:
Section 570 of the Companies Ordinance (Cap 622)
(1) An application under s 570 of the Companies Ordinance (Cap 622) must be made by originating summons pursuant to O 102 r 2 of the Rules of the High Court (Cap 4A) and a party ‘cannot circumvent the originating summons procedure by issuing a summons for substantive relief under the Ordinance’. The originating summons procedure was mandatory under RHC O 102 r 2, and an applicant’s failure to follow the originating summons procedure would itself lead to the dismissal of the application. The Liquidators could not seek any substantive or final relief under s 570 by issuing the Ex Parte Summons. Any such relief sought with respect to the Hong Kong subsidiaries must proceed by way of originating summons. David Golan v Janek Davitashvili and Anor [2017] HKCU 542, (HCCW 255/2016, Deputy High Court Judge Le Pichon, 1 March 2017, unreported) considered (paras 15-17).
(2) It was also fundamental that none of the Hong Kong subsidiaries (nor their directors) were even parties to the present proceedings. The Liquidators were not themselves even directors or shareholders of any of the Hong Kong subsidiaries. It would not be right to make any orders over the Hong Kong subsidiaries when none of the necessary parties were made parties to this application. If the Hong Kong subsidiaries did not convene EGMs as requisitioned by the BVI subsidiaries, acting at the direction of the sole director, or the 0.1% shareholder of certain HK subsidiaries, did not agree to attend the proposed EGMs such as to render such general meetings inquorate, then the Liquidators could return before the court for further directions to give effect to the liquidation (paras 18, 20).
Section 200 of the Companies Ordinance (Cap 622)
(3) It was not appropriate for the Liquidators to seek directions with respect to the BVI and Hong Kong subsidiaries, as opposed to the Company itself. This was impermissible as a matter of law. A s 200(3) application could only be brought in relation to any particular matter arising from the winding up of the company concerned, It did not permit the Liquidators to apply for ‘directions’ in relation to a matter which concerns another company. Re Easy Champ Cort Ltd (in Liq) [2022] 3 HKC 555, [2022] 2 HKLRD 238, [2022] HKCFI 769 followed (para 22).
(4) Any directions sought under s 200(3) could not determine the substantive issues in dispute — still less to make any binding orders on third parties (namely the BVI and Hong Kong subsidiaries in the present case). An application by a liquidator for directions was not the occasion for the making of order affecting the rights of outsiders. Its effect is merely to sanction a course of conduct on the part of the liquidator so that he may adopt that course free from the risk of personal liability for breach of duty. It was no part of the court’s function on such an application to resolve factual conflicts. Australian Securities and Investments Commission v Edwards [2009] QSC 360, Re Founder Information (Hong Kong) Ltd [2021] HKCFI 1749, [2021] HKCU 2886; and Re Magic Aust Pty Ltd (in liq) (1992) 7 ACSR 742 followed (paras 23- 25).
[The above is excerpted from the headnote to the report in HKC.]
