Parties – intervener – application for leave to intervene in action to conduct defence on behalf of company in liquidation improper – application should be made in winding-up proceedings under s.200(5) – O.15 r. 6 inapplicable
P brought a mortgagee action against C, a company in liquidation, to enforce a charge over C’s assets. C’s liquidators (“Ls”) did not contest the action (“Ls’ Decision”). X1–2, as creditors of C, applied under O. 15, r. 6 of the Rules of the High Court (Cap. 4A, Sub. Leg.) (the “RHC”) to intervene to conduct the defence on C’s behalf, arguing that the charge was liable to be declared void.
Held, dismissing the application, that:
- Even if C had an arguable case for setting aside the charge, Xs should apply in the winding-up proceedings under s. 200(5) of the Companies (Winding-up and Miscellaneous Provisions) Ordinance (Cap. 32) either to impugn Ls’ Decision or to apply for leave to defend the action in C’s name. Xs’ application was badly formulated and on this ground alone, must be dismissed.
- Further, this was not an ordinary joinder application. Order 15, r. 6 of the RHC did not apply where, as here, a party wished to intervene and defend the action on behalf of a company in liquidation when the liquidators had decided not to do so.
- A certificate of registration of a charge could only be conclusive proof as to the requirements relating to registration, but not the validity of the charge itself as against the liquidators or creditors of the company.