Title/sale of land – assignment – application for order for execution of confirmatory assignment to rectify error – defendant dissolved long before proceedings commenced – proceedings not properly constituted as defendant non-existent – plaintiff could not rely on s. 25A to request court to nominate someone to execute confirmatory assignment for defendant
In an originating summons issued some three and a half years after D, a Hong Kong company, was dissolved, P sought an order that D execute a confirmatory assignment to rectify an error in an assignment of a property executed by P as purchaser and D as vendor (the “Summons”). P conceded that D had ceased to exist and argued that since it could not “after reasonable inquiry be found” pursuant to s. 25A(1)(b) of the High Court Ordinance (Cap. 4), the Court could grant leave to nominate a person to execute the confirmatory assignment in its place.
Held, dismissing the Summons, that:
- Section 25A of the Ordinance did not apply. The proceedings were not properly constituted since the sole defendant was a non-existent entity and could not be sued. There was nothing in s. 25A to enable a departure from this general principle.
- More fundamentally, provided a Hong Kong company remained dissolved, its property was bona vacantia and belonged to the Government under s. 752 of the Companies Ordinance (Cap. 622). The proper defendant was the Government and the Registrar of Companies had authority to act on its behalf.
- Given that there was no proper application by P for leave to amend the Summons to substitute C with the Companies Registrar and the Summons had not been served, it was preferable for P to commence fresh proceedings.