We have received an increasing number of enquiries in relation to unauthorized applications of company’s assets and disputes among shareholders.  One of the many tactics used by a party to try to get an edge is to gain control over the board of directors of the company.  As with all corporate actions, procedures and steps should be followed.  The High Court of Hong Kong in Lohas Holding Ltd v Registrar of Companies [2022] HKCFI 3358 reiterated that proper procedures should be followed and “irregularity principle” can only be used to cure procedural defect.

背景

本案牵涉有关委任一名人士为Lohas Holding Ltd（“公司“）董事向公司注册处提交的更改公司秘书及董事通知书(委任／停任)表格（表格ND2A）。

其中一方的论点为股东于公司的股东大会中讨论了有关建议委任（“该建议委任“）一名人士为公司董事（”该建议董事“）的事宜。随后，该建议董事向公司注册处提交了显示该建议董事获委任的更改公司秘书及董事通知书(委任／停任)表格（表格ND2A）（”由该建议董事提交的ND2A“）。公司随即向公司注册处提交经修订的更改公司秘书及董事通知书(委任／停任)表格（表格ND2A））（”由公司提交的ND2A“），表明由该建议董事提交的ND2A有误。

The Company made an application under section 42 of the Companies Ordinance to the High Court of Hong Kong for an order to remove or rectify the Director Filed ND2A.  On the other hand, the Proposed Director sought an order to remove or rectify the Company Filed ND2A.  Subject to, among others, sections 42(1) and 42(4) of the Companies Ordinance, the Court may by order direct the Registrar of Companies to rectify any information on the Companies Register or to remove any information from it if the information is invalid or ineffective; without the company’s authority; or the information is factually inaccurate or derives from anything that is factually inaccurate or forged.

该建议董事提出了以下论点：(i)一份确认函已向公司股东传阅，当中表明了股东于股东大会通过了该建议董事获委任为公司董事；(ii)股东大会的会议记录草稿已向公司股东传阅，当中表明了股东通过了该建议董事获委任为公司董事；及 (iii)于股东大会的一段录音证明了该建议委任为股东大会中有关公司其他董事的停任与委任的讨论的一部分。

此外，该建议董事提出程序违规原则该适用作修补委任事宜上的瑕疵。

The Court, however, held that the evidence submitted by the Proposed Director was not sufficient to prove that there were discussions or votes taken place in relation to the Proposed Appointment at the general meeting.  Moreover, the ‘irregularity principle’ would not be applicable as the Proposed Appointment was not a mere procedural irregularity but a substantive defect as no valid notice of the general meeting in relation to the Proposed Appointment was given to the shareholders of the Company; and a majority of the shareholders of the Company indicated that they would not support a resolution to the Proposed Appointment.

The Court further held that the information contained in the Director Filed ND2A was incorrect, and the continued existence of the Director Filed ND2A would confuse third parties dealing with the Company and cause material damage to the Company.  Accordingly, the Court held that the Director Filed ND2A be removed from the Companies Registry.  The Court further held that the Company Filed ND2A be also removed from the Companies Registry as the purpose of the form was to inform the public of the dispute over the Proposed Appointment; and it would no longer be necessary following the removal of the Director Filed ND2A.

观点

Proper steps and procedures should be observed and followed before initiating any corporate actions.  Even an absence of a valid notice could render substantive defect to a simple corporate action.

如需要更多信息，请联系本文的作者：

梁延达，合伙人 （alfredleung@hkytl.com)

梁晓岚- 见习律师 (euniceleung@hkytl.com)