|The Return of the Living Dead (Company)|
The Companies Ordinance (“the Ordinance”) gives any interested person a chance to dig the company back out from the ground so you could make a claim against it.
In Hong Kong, if a company is dissolved following a compulsory or voluntary wind-up, the court may declare the dissolution void. Under s290(1) of the Ordinance, the liquidator of the company or any other person who appears to the court to be interested may, within 2 years of dissolution, apply to the court to bring the company back to life.
Why revive the company?
There are various reasons why one might want to revive the dead company. The typical case for application of the section is when some asset of the company comes to light after the dissolution (Re Menes Trading Co Ltd  1 HKC 108). Another reason is where a claimant has a claim against the dead company, e.g. a worker against his company employer (Re Yiu Cheung Glass Mirror Co Ltd  1 HKC 502). He may need to obtain a judgment against the company before he could make a claim against its insurer.
Who may make the application?
The liquidator of the company or any other person who ‘appears to the court to be interested’ may make an application under s290(1). According to Eidens v Glass  MP No 2927 of 1994, a person must have a proprietary or pecuniary interest in resuscitating a company to be regarded as a ‘person interested’. However, the court in the case Re Matrix Industries Ltd  1 HKC 194 held that ‘person interested’ can go as far as including someone who has a reasonable possibility of acquiring the company’s shares. The case, in determining the meaning of ‘person interested’, quoted a passage from the English case of Re Wood & Martin, where Justice Megarry said:-
“… It does not, I think, have to be shown that the interest is one which is firmly established or highly likely to prevail: provided it is not merely shadowy, I think it suffices for the purpose of [section 290].”
Company dissolved for over 2 years
An application can still be made to the court even after the 2 year time period had passed. S290(1A) of the Ordinance provides that the liquidator or the ‘person interested’ may at any time apply to extend the period of 2 years and the court may so extend if it is satisfied that there are exceptional circumstances justifying the extension.
The exceptional circumstances requirement has been interpreted lightly by the courts where the respondents do not oppose to the application. For example, in Wang Jing Dong v. The Registrar of Companies  HKCFI 470, the court granted the extension for reasons that the delay arose due to the applicant’s ignorance of the legal consequences of the dissolution of the Company. However, it seems from the case that the court will look at whether anyone would be prejudiced by reason of the delay as a determining factor in granting the extension and the result might have been different if the respondents oppose the application.
Without knowledge of the background/facts of the individual matter, we do not intend for the above summary to deal with every important topic or to cover every aspect of the topics with which it deals. Such summary is for general information purposes only and is not intended to provide legal advice.
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Published by ONC Lawyers © 2008