Re Capital Sino Investments Ltd
Court of First Instance
Miscellaneous Proceedings No. 2939 of 2014
Godfrey Lam J in Chambers
COMPANY LAW
9 January 2015

Registration of charge – s. 347 conferred power to rectify not only statement of particulars, but also instrument creating or evidencing charge itself

C sought rectification of a misstatement in inter alia a mortgage delivered to the Registrar for registration under s. 347 of the Companies Ordinance (Cap.622), on the ground that its date was inadvertently misstated as 24 January 2014 instead of 23 January 2014.

Held, that:

  • Section 347(1)(a)(i) of the Ordinance referred to “any accompanying instrument” delivered for registration and meant the instrument creating or evidencing the charge. Thus, the section conferred a power to rectify not only the statement of particulars, but also the instrument creating or evidencing the charge itself, such as a deed of mortgage, and not just a certified copy of it, although only a certified copy had to accompany the statement of particulars of a charge upon delivery for registration.
  • Section 347(4) showed that s. 347, so far as the original instrument itself was concerned, did not create a new cause of action or provide a new ground for rectification, but instead provided a procedure for correcting an original document delivered for registration to the extent that it did not reflect the true agreement of the parties, or, in other words, a summary procedure for rectification of an instrument creating or evidencing a charge.
  • However, as a matter of general principle, where that particular power was invoked, the parties to the instrument must ordinarily be joined as parties to the application. Here, the application was made ex parte and had not been served on the mortgagee, and there was no evidence of the mortgagee’s consent to be bound by an order of the Court. Accordingly, the hearing would be adjourned in order to rectify this procedural defect.

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