RE CAPITAL SINO INVESTMENTS LTD

RE CAPITAL SINO INVESTMENTS LTD

The originating summons was adjourned sine die because the mortgagee bank, a party to the instrument sought to be rectified, had not been joined or served and there was no evidence of its consent; section 347 allows rectification subject to common law and equitable principles, and procedural fairness requires joining parties to the instrument before making a rectification order.

Citation
RE CAPITAL SINO INVESTMENTS LTD
Parties
Mortgagor/applicant: Applicant company; Mortgagee/respondent: Standard Chartered Bank (Hong Kong) Limited; Registrar: Registrar of Companies
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 January 2015
Case Number
HCMP2939/2014
Procedural Posture
Rectification of Documents Relating to Registration of Charges Under Section 347 Companies Ordinance (cap 622) / Ex Parte Originating Summons Filed; Hearing Adjourned Sine Die With Liberty to Restore
Outcome
Hearing adjourned sine die with liberty to restore due to procedural defect (bank not joined/served)
Legal Topics
Rectification of Instruments, Registration of Charges, Section 347 Companies Ordinance, Joinder of Parties
Source Language
EN
Company Law Equity Civil Procedure Rectification of Instruments Registration of Charges Section 347 Companies Ordinance Joinder of Parties

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Parties

Applicant company

Mortgagor/applicant

Standard Chartered Bank (Hong Kong) Limited

Mortgagee/respondent

Registrar of Companies

Registrar

Procedural Posture

Rectification of Documents Relating to Registration of Charges Under Section 347 Companies Ordinance (cap 622) / Ex Parte Originating Summons Filed; Hearing Adjourned Sine Die With Liberty to Restore

Legal Issues

  1. 1 Whether section 347 permits rectification of the original instrument as opposed to only the certified copy delivered for registration
  2. 2 Whether rectification under section 347 is subject to common law and equitable principles
  3. 3 Whether parties to the instrument (including the mortgagee bank) must be joined and served before the court may make a rectification order

Ratio Decidendi

The originating summons was adjourned sine die because the mortgagee bank, a party to the instrument sought to be rectified, had not been joined or served and there was no evidence of its consent; section 347 allows rectification subject to common law and equitable principles, and procedural fairness requires joining parties to the instrument before making a rectification order.

Court Disposition

Hearing adjourned sine die with liberty to restore due to procedural defect (bank not joined/served)

Orders

  • Originating summons adjourned sine die with liberty to restore
  • Liberty to restore so the applicant may join and serve the mortgagee bank and remedy the procedural defect before further hearing