TRADEPOWER (HOLDINGS) LTD v. TRADEPOWER (HONG KONG) LTD AND OTHERS

TRADEPOWER (HOLDINGS) LTD v. TRADEPOWER (HONG KONG) LTD AND OTHERS

The court found it impracticable to convene a meeting through the current directors because they had refused to sign identical resolutions; s114B is available without first invoking s113; in the absence of a stay the plaintiff is entitled to effect the Court of Appeal's order and it was fair and just to order an EGM under s114B, with consequential delivery of company seals/chops/cheque books to the newly constituted board within seven days after the EGM, and interim restraints secured by defendants' undertaking until the EGM.

Citation
TRADEPOWER (HOLDINGS) LTD v. TRADEPOWER (HONG KONG) LTD AND OTHERS
Parties
Plaintiff (in Liquidation): TRADEPOWER (HOLDINGS) LIMITED; 1st Defendant: TRADEPOWER (HONG KONG) LIMITED; 2nd Defendant: GIRVAN LIMITED; 3rd Defendant: CHAN HO YUN PING alias HO YUN PING; 4th Defendant: DAVID A. SONNENBERG; 5th Defendant: HAROLD S. DIVINE
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 March 2009
Case Number
HCMP2540/2008
Procedural Posture
Company/shareholder Litigation / Interlocutory Application Under Section 114 B Companies Ordinance (hearing in Chambers)
Outcome
Application granted in part: court ordered an EGM under s114B and consequential directions; delivery up and restraints ordered/secured with adjustments; no order for delivery against 2nd defendant at this stage.
Legal Topics
Section 114 B Companies Ordinance, Convening General Meetings, Delivery Up of Company Property, Restraint on Disposal of Assets, Fraudulent Conveyance/scheme, Stay and Appeal
Source Language
EN
Company Law Insolvency Law Civil Procedure Equity Section 114 B Companies Ordinance Convening General Meetings Delivery Up of Company Property Restraint on Disposal of Assets +2 more

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Parties

TRADEPOWER (HOLDINGS) LIMITED

Plaintiff (in Liquidation)

TRADEPOWER (HONG KONG) LIMITED

1st Defendant

GIRVAN LIMITED

2nd Defendant

CHAN HO YUN PING alias HO YUN PING

3rd Defendant

DAVID A. SONNENBERG

4th Defendant

HAROLD S. DIVINE

5th Defendant

Procedural Posture

Company/shareholder Litigation / Interlocutory Application Under Section 114 B Companies Ordinance (hearing in Chambers)

Legal Issues

  1. 1 Whether it is impracticable to call a general meeting of the 1st defendant under s114B
  2. 2 Whether the court should exercise its discretion to order a meeting under s114B despite pending application for stay to the Court of Final Appeal
  3. 3 Whether delivery up of company property should be ordered and to whom

Ratio Decidendi

The court found it impracticable to convene a meeting through the current directors because they had refused to sign identical resolutions; s114B is available without first invoking s113; in the absence of a stay the plaintiff is entitled to effect the Court of Appeal's order and it was fair and just to order an EGM under s114B, with consequential delivery of company seals/chops/cheque books to the newly constituted board within seven days after the EGM, and interim restraints secured by defendants' undertaking until the EGM.

Court Disposition

Application granted in part: court ordered an EGM under s114B and consequential directions; delivery up and restraints ordered/secured with adjustments; no order for delivery against 2nd defendant at this stage.

Orders

  • Order convening an EGM of the 1st defendant pursuant to section 114B Companies Ordinance, to be held and conducted as the court directs and permitting the plaintiff attending alone to constitute a meeting for passage of the specified resolutions
  • Delivery up by the defendants of company seals, chops and cheque books to the newly constituted board of directors within 7 days after the holding of the EGM (scope narrowed from broader 'properties')