KWOK HIN CHEUNG AND ANOTHER v. KWOK HIN TAK AND OTHERS

KWOK HIN CHEUNG AND ANOTHER v. KWOK HIN TAK AND OTHERS

The court refused to strike out HCMP No. 448 of 2006 because disputed facts on service and the validity of the allotment and the procedural history meant it was not plain and obvious the originating summons would fail; the court permitted the applicants to discontinue the earlier originating summons in the proper proceedings, granted leave to add the company as 4th respondent, directed the proceedings to continue as if begun by writ with 21 days to file a statement of claim, and ordered respondents to pay the applicants' costs of the strike out application.

Citation
KWOK HIN CHEUNG AND ANOTHER v. KWOK HIN TAK AND OTHERS
Parties
1st Applicant: KWOK HIN CHEUNG; 2nd Applicant: LO KIN TUNG; 1st Respondent: KWOK HIN TAK; 2nd Respondent: CHONG SAU PUI; 3rd Respondent: SAN KWAN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 November 2006
Case Number
HCMP448/2006
Procedural Posture
HCMP Company/shareholder Dispute (originating Summons) / Chambers Decision on Strike Out and Procedural Applications (decision)
Outcome
Application to strike out dismissed; applicants' procedural summons partly allowed
Legal Topics
Share Allotment, Directors' Resolutions, Service of Process, Strike Out, Abuse of Process, Discontinuance, Adding Parties, Conversion to Writ, Statutory Pre Emption (s57 B)
Source Language
EN
Company Law Civil Procedure Equity and Trusts Share Allotment Directors' Resolutions Service of Process Strike Out Abuse of Process +4 more

Case Brief

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Parties

KWOK HIN CHEUNG

1st Applicant

LO KIN TUNG

2nd Applicant

KWOK HIN TAK

1st Respondent

CHONG SAU PUI

2nd Respondent

SAN KWAN

3rd Respondent

Procedural Posture

HCMP Company/shareholder Dispute (originating Summons) / Chambers Decision on Strike Out and Procedural Applications (decision)

Legal Issues

  1. 1 Whether the originating summons discloses a reasonable cause of action and should be struck out under Order 18 r19 or the court's inherent jurisdiction
  2. 2 Whether issuance of multiple identical originating summonses constitutes abuse of process warranting strike out
  3. 3 Whether the allotment of additional shares was valid and whether s57B(1) Companies Ordinance removes the need for general meeting approval

Ratio Decidendi

The court refused to strike out HCMP No. 448 of 2006 because disputed facts on service and the validity of the allotment and the procedural history meant it was not plain and obvious the originating summons would fail; the court permitted the applicants to discontinue the earlier originating summons in the proper proceedings, granted leave to add the company as 4th respondent, directed the proceedings to continue as if begun by writ with 21 days to file a statement of claim, and ordered respondents to pay the applicants' costs of the strike out application.

Court Disposition

Application to strike out dismissed; applicants' procedural summons partly allowed

Orders

  • Strike out application dismissed
  • Respondents to pay the costs of the applicants in the strike out application, to be taxed if not agreed