SUPPLEMENT
Hongkong Daily Press.
Registered as a Newspaper at the General
Post Ofice in the United Kingdom.
CHINESE
19 ESTABLISHED 1857 H HONGKONG, FRIDAY JULY 28, 1939.
SHIPPING CO.'S
PETITION ALLOWED
Judgment Delivered
Justice By Chief
The full judgment in respect of the application brought by Shlang Kee, otherwise known as the China Merchants Steam Navigation Co., Ltd., for the winding-up of the Ching Kee Steam Navigation Co., Ltd., was delivered by the Chief Justice, Sir Atholl 'MacGregor, in the Supreme Court. on Wednesday.
15-19 Marina House, Queen's Road Central G.P,0. Bek. No.........1.
WINDING-UP
15
of competent jurisdiction in the an order which will secure as far as country in which the company was possible the payment of all just.. Incorporated; and, as a result of claims against the corporation.” that winding-up, the corporate) An order was made for the com-" powers of the Company have been pulsory winding-up "of the com- destroyed in the country of its pany, origin:
(1) That the Company Has in fact ceased to carry on business in the Colony; and
1)
CORPORATIONS
case
the
In his speech in the
of Lazard Bros. & Co. v. Midland (Bank (1933) A.C.289 at 297, Lord (H) That it is just and equit wright says: "English courts have able that the Company should be long since recognised as juristic wound up. The substratum of the persons corporations established by Company has gone. It is a ship-foreign law in virtue of the fact of ping, company and cannot carry their creation and continuance on legitimate business because of under and by that law. Such re- the risk of seizure of their vessels cognition is said to be by the com- by enemy forces. The only avenue ity of nations. This in Henriques of business open to the Company. Dutch West India Co. (1728) 2 are either illegal trading with the Lord Raymond (1532, 1535) enemy or work extraneous" to the Dutch company were permitted to true objects of the company such sue in the King's Bench on evi- « as the chartering of their vessels dence being given of the proper for use as hulks within this har instruments whereby the law of Holland they were effectually On the first of these grounds, Mr. created a corporation there. But Potter relles on the case of In re as the creation depends on the act The Russian Bank for Foreign of the foreign state which created Trade (1933) 1 Chancery 745. In them the annulment of the act of that case the Russian revolution-creation by the same power will in- ary legislation of 1917 and the fol- volve the dissolution and lowing years had put an end to the existence of the corporation in the juristic existence of banking com- eyes of English law. The will of sovereign authority which panies incorporated in Russia, and the
Petitioners, who are shareholders in the Ching Kee Steam Navigation Co., Ltd., were represented by Mr. Eldon Potter, K.C. and Mr. H. C. Macnamara, instructed by Mr. D. L. Strellett, of Messrs. G. K. Hall Brutton and Co., while shareholders in Dairen opposing the petition were repre-bour.. sented by Mr. H. G. Sheldon, K.C. and the Hon. Mr. Leo D'Almada e Castro, Jnr., instructed by Mr. H. J. Armstrong, of Messrs. Deacons.
The text of the judgment is} as follows:
pany under or by virtue of the laws of the country under which it was incorporated.
FACTS SUMMARISED -The facts, so far as they are material to this application, can be summarised quite briefly.
1
The Ching Kee Steam Navigation Company Limited, which hereafter in this judgment I shall refer to as
it was held that the impossibility created it can also destroy it. "the company" was duly incorpor
of a branch of such a Russian English law will equally recognise ated and registered as a company
The bank continuing to function the one, as the other, fact”. with limited liability under the
Company owns and operates according to its incorporating Mr. Sheldon on this point has laws of the Republic of China on twenty steamships. Eleven of these statutes was a sufficient ground for referred to two cases In re Com- April 1, 1920. The head office of vessels are chartered to Japanese a winding-up order. In delivering mercial Bank of South Australla the company has at all material interests, three are engaged in or judgment Maugham J (as he then (1888) 33 Ch.D. 174 and In re times been in Chetoo. The bust-dinary shipping business, and the was) said: "The decrees as regards Matheson Brothers Ltd. (1884) 77 tess of the company is and other six have, since August, 1937, 1 banks whose seats and principal Ch.D. 225. These cases, tried while throughout has been that of ship-been lying in the waters of the aces were taken over by the the Companies Act 1862 was still owners, carriers by sea, and other Colony. The only local activity of
ping:
laws of this Colony are concerned,
business in connection with ship- the Company during that period state, must be regarded as so crip- in force, decide only that the Since the year 1920 the has been that one of the vessels. pling the powers of the companies English Courts have jurisdiction to company has had a branch office was from November 1938 to Febru- that, if not extinct, they could no wind up a branch in England of a in Hongkong. The company is an ary 25, 1939 chartered for use as a longer exhibit any of the signs of foreign company despite the pen- unregistered company so far as the storage hulk.
life. At the best the bank, as a dency of foreign liquidation... In legal corporation, deprived as it the latter case Kay J, says "What' The Dairen Kisen Kabushiki and the jurisdiction invoked in Kalsha, a corporation established tors, became no more than a legal order which it is said has been was of its assets and its corporais the effect of the winding up this application is that conferred under the laws of Japan, was conception. Its branch in England, made in New Zealand? This court on this Court by Section 313 of the appointed to act as agents of their an old metaphor may be em-upon principles of International Companies Ordinance · 1933, the material provisions of which are: Company in 1939, and the local re-played, is now a submerged wreck comity, would no doubt have great presentatives of that corporation floating on the ocean of commerce. regard to that winding up order 313 (1) (b) The circumstances purported to assume duty as As a branch of the original bank it and would be influenced thereby, in which an unregistered com- agents of the company in Hong- appears, however, to have or to but the question, and the mere pany may be wound up are as kong as from 1st February 1989. have had creditors in this country, existence of a winding up order follows: (1) If the company is The District Court of Chungking, and if the petition before me is made by a foreign court does not dissolved, or has ceased to carry having been duly authorised in properly presented I am of opinion take away the right of the courts on business, or is carrying on that behalf by an order of the both that the bank has ceased of this country to make a winding business only for the purpose of Supreme Court of China, in Febru- legally to carry on business, and up order here, though it would no winding up its affairs; (11) If ary 1938 ordered the immediate that it is just and equitable that it doubt exercise an influence upon the Court is of opinion that it is dissolution of the Company and should be wound up. The essential this court in making the order." 'just and equitable that the com- appointed three liquidators. From features of the case are, indeed, of
NOT ALTKRED pany should be wound up. 313 that decision an appeal was taken a simple, character. A ̈corporation..... (2) Where a company incorpor- to the First Divisional Court of the ated outside the Colony which Supreme Court of China, which on has been carrying on misiness in May 30 dismissed the appeal. That the Colony ceases to carry on business in the Colony, it may be
GROUNDS SET OUT- wound up as an unregistered) company under this Part of the The present application is based Ordinance notwithstanding that on three grounds:
decision" is final
created and established under a Here we have not a dissolution as foreign legal system has heen al in the two cases to which Mr. lowed by our laws to carry on Potter has referred me but an business and to incur debts in this intermediate stage, an order for country. Its corporate powers, if compulsory winding up. I do not not its corporate existence, have think that that radically alters the been destroyed in its country of position The Company in China.“ origin. It cannot be doubted that is in process of dissolution, and the it has been dissolved or other- (1) That there has been a in such circumstances the Court, if | circumstances are such that in my wise ceased to axist as a com-| winding-up order" made by a court it has jurisdiction, ought to make judgment this court ought to make-
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