(A) Introduction
On 31 July 2025, the Court of First Instance handed down judgment in Leung Tat Kin, Anthony and another v The Registrar of Companies [1], HCMP 816/2025, addressing an application to remove or rectify information on the Companies Register under Section 42 of the Companies Ordinance (Cap 622) (the “Ordinance”). This case offers valuable guidance for applicants pursuing voluntary winding-up.
(B) Facts
The 1st Applicant, who was the sole director of the 2nd Applicant (the “Company”), sought to remove the following documents (the “Documents”) from the Companies Registry by Amended Originating Summons filed on 9 June 2025:-[2]
On 31 July 2025, the Court of First Instance handed down judgment in Leung Tat Kin, Anthony and another v The Registrar of Companies [1], HCMP 816/2025, addressing an application to remove or rectify information on the Companies Register under Section 42 of the Companies Ordinance (Cap 622) (the “Ordinance”). This case offers valuable guidance for applicants pursuing voluntary winding-up.
(B) Facts
The 1st Applicant, who was the sole director of the 2nd Applicant (the “Company”), sought to remove the following documents (the “Documents”) from the Companies Registry by Amended Originating Summons filed on 9 June 2025:-[2]
(1) Special and Ordinary Resolutions of the Sole Member filed on 19 February 2025 (the “Resolution”); and
(2) Form NW3 (Notice of Appointment of Liquidator or Provisional Liquidator) filed on 19 February 2025 (the “Form NW3”).
Alternatively, the Applicants sought to rectify the Documents.[3] They indicated that they would prefer rectification rather than removal of the Resolution and Form NW3. [4]
They submitted that the Resolution, which was intended to be a members’ resolution under section 228(1)(b) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32), was invalid on the following grounds:[5]
(1) The Resolution was signed by the 1st Applicant, who was not a member but only a director; and
(2) The sole member, the 1st Applicant’s son, never signed the Resolution.
They also submitted that the Form NW3 was invalid because there was no proper resolution authorizing the voluntary winding-up of the Company.[6]
(C) Decision
The Court declared the Documents invalid and ordered their removal on the following grounds:[7]
(1) There was no evidence of any physical meeting. It was inherently improbable that the member attended a physical meeting, but failed to sign the Resolution. As the Resolution was a written resolution, a non-member’s signature could not constitute a valid members’ resolution. Further, the sole member did not sign the Resolution, so no resolution was validly passed; and
(2) Allowing retroactive validation of defectively signed resolutions would risk abuse of Section 42 of the Ordinance.
The Court further rejected the Applicants’ application to rectify the Documents on the following grounds:[8]
(1) Amending the Resolution would mislead the public by implying it was initially valid;
(2) A blank Amended Form NW3 would still suggest a winding-up occurred, creating false impressions to the public that the Company had been validly voluntarily wound up.
Notably, the Court ordered that the Applicants shall pay the costs of the application to the Registrar of Companies (the “Registrar”) because the application arose from the Applicants' own faults, and the Registrar incurred considerable time to consider the Applicants’ cited cases and explain the matter in detail.[9]
(D) Key Takeaways
This case underscores the importance of strictly complying with statutory procedures and formalities when winding-up a company. The Court emphasized that “given the ramification of a winding up of a company, the requirement for voluntary winding up must be strictly observed...If the Company would like to voluntarily wind up itself, it could go through the necessary procedure correctly”.[10]
The Court further reminded that attempting to retroactively validate defective resolutions can be viewed as an abuse of Section 42 of the Ordinance. Courts are generally reluctant to do so, in order to prevent misleading the public or misrepresenting the company’s actual status.
Applicants pursuing voluntary winding-up must adhere to the statutory procedures and formalities required. Invalid signatures or procedural lapses can render special resolutions ineffective. In particular, special resolutions for voluntary winding-up must be properly signed by the company’s members. There must be clear evidence of a valid meeting. Signatures by non-members or directors alone are insufficient to validate a winding-up resolution.
[1] https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=171230&currpage=T
[2] Leung Tat Kin, Anthony and another v The Registrar of Companies, HCMP 816/2025, date of judgment: 31 July 2025, §1
[3] Ibid, §2
[4] Ibid, §8
[5] Ibid, §3
[6] Ibid
[7] Ibid, §4-6
[8] Ibid, §8
[9] Ibid, §10
[7] Ibid, §4-6
[8] Ibid, §8
[9] Ibid, §10
[10] Ibid, §4, 9
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