CO129-585-3 Sino-Japanese conflict- shipping 17-1-1940 - 13-11-1940 — Page 37

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IN THE SUPREME COURT OF HONGKONG

APPELLATE

JURISDICTION

APPEAL NO. 15/39.

Between:

The Dairen Kisen Kaisha & Others Appellants

and

The China Merchants Steam Navigation Company

Respondents.

JUDGMENT

This is an appeal against an order made by Atholl, Sir, MacGregor C. J. in these proceedings directing the winding up of the Ching Kee Steam Navigation Company which is an unregistered Company within the meaning of the Companies Ordinance, 1932, but is incorporated under the laws of the Republic of China with headquarters at Chefoo in the province of Shantung and has (or had) a branch office in this Colony. The facts are fully set out in the judgment of the Court below and need not be recapitulated. The application for winding up was based on three grounds, on each and all of which the learned Chief Justice held that the petitioners (the present respondents) were entitled to succeed. Those grounds were:

(i)

(ii)

(iii)

That there had been a winding up order made by a Court of competent jurisdiction in the country in which the company was incorporated, and, as a result of that order, the corporate powers of the company had been destroyed in that country;

that the company had in fact ceased to carry on business in the Colony;

that it was just and equitable that the company should be wound up since its substratum had disappeared and as a shipping concern it was

quite unable to carry on legitimate business.

Each of these grounds has been assailed (as in the Court below) by Mr. Sheldon on behalf of the appellants but the spear-head of his attack has with our permission been now directed along a new line and has been aimed at the competency of the Chinese Court concerned to order the winding up of the company in China, not so much on account of that court's inability to enforce its order as because, the province of Shantung being occupied by the Japanese military forces, its jurisdiction no longer extends to that part of the country but has been ousted by the fact of such occupation.

He/