PROJECT SPACE LTD AND OTHERS v. HO YU SHUN AND AND ANOTHER

PROJECT SPACE LTD AND OTHERS v. HO YU SHUN AND AND ANOTHER

The court found that the evidence did not establish that Article 38(e) operated to vacate Mr Ho for absence from four consecutive Council meetings nor that Article 38(g) applied to vacate Mr Yau; the purported EGM of 29 January 2020 was procedurally defective and the irregularity principle could not validate removal because the requisite conditions (including status as President and availability of a casting vote) were not satisfied; accordingly the ND2A filings recording resignations/appointments were incorrect and certain ND2A forms were declared null and void and ordered removed from the Companies Register; both Mr Ho and Mr Yau remain members and Council members (directors) and the...

Citation
[2022] HKCFI 742
Parties
Applicant / 1st Defendant: Ho Yu Shun; 1st Respondent / 1st Plaintiff: Project Space Limited; 2nd Respondent / 4th Plaintiff: Yau Ka Lok; 3rd Respondent / 2nd Plaintiff: Chan Lok Tung; 4th Respondent / 3rd Plaintiff: Ngai Wing Yee; 5th Respondent: So Kit Wai; 6th Respondent / 2nd Defendant: Registrar of Companies
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 March 2022
Case Number
HCMP2045/2020
Procedural Posture
Company Law: Rectification of Companies Register and Directors Removal Dispute Under Companies Ordinance / Judgment (trial)
Outcome
Originating summonses allowed in part and dismissed in part
Legal Topics
Rectification of Companies Register (s.42), Removal/vacation of Director, Notice Requirements for General Meetings and Removal of Directors, Irregularity Principle, Duomatic Principle
Source Language
EN
Company Law Charity Law Civil Procedure Corporate Governance Rectification of Companies Register (s.42) Removal/vacation of Director Notice Requirements for General Meetings and Removal of Directors Irregularity Principle +1 more

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Parties

Ho Yu Shun

Applicant / 1st Defendant

Project Space Limited

1st Respondent / 1st Plaintiff

Yau Ka Lok

2nd Respondent / 4th Plaintiff

Chan Lok Tung

3rd Respondent / 2nd Plaintiff

Ngai Wing Yee

4th Respondent / 3rd Plaintiff

So Kit Wai

5th Respondent

Registrar of Companies

6th Respondent / 2nd Defendant

Procedural Posture

Company Law: Rectification of Companies Register and Directors Removal Dispute Under Companies Ordinance / Judgment (trial)

Legal Issues

  1. 1 Whether Article 38(e) (absence from four consecutive Council meetings) operated to vacate Mr Ho's office as Council member/director
  2. 2 Whether Mr Ho was validly removed as director at the EGM on 29 January 2020
  3. 3 Whether Article 38(g) (undisclosed interest in contract) operated to vacate Mr Yau's office as Council member/director

Ratio Decidendi

The court found that the evidence did not establish that Article 38(e) operated to vacate Mr Ho for absence from four consecutive Council meetings nor that Article 38(g) applied to vacate Mr Yau; the purported EGM of 29 January 2020 was procedurally defective and the irregularity principle could not validate removal because the requisite conditions (including status as President and availability of a casting vote) were not satisfied; accordingly the ND2A filings recording resignations/appointments were incorrect and certain ND2A forms were declared null and void and ordered removed from the Companies Register; both Mr Ho and Mr Yau remain members and Council members (directors) and the...

Court Disposition

Originating summonses allowed in part and dismissed in part

Orders

  • HCMP 1927/2020: Forms ND2A reference numbers 70001669016 and 70001683620 are null and void and to be removed from the Companies Registry
  • HCMP 2045/2020: Declaration that Yau Ka Lok remains a director and Council member of Project Space Limited; Forms ND2A reference numbers 23501674687 and 23501674688 are null and void and to be removed from the Companies Registry