ENZO BARAZETTI v. ATMI AUSTAR LIFESCIENCES LTD

HCMP 1210/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1210 OF 2014

______________________

	IN THE MATTER OF SECTIONS 111(2) AND 122(1B) OF THE COMPANIES ORDINANCE, CAP 32
	and
	IN THE MATTER OF STERIS-AUSTAR PHARMECEUTICAL SYSTEMS HONG KONG LIMITED (思泰瑞奧星製藥設備有限公司)

______________________

BETWEEN

	ENZO BARAZETTI	Plaintiff
	and
	STERIS-AUSTAR PHARMACEUTICAL SYSTEMS HONG KONG LIMITED (思泰瑞奧星製藥設備有限公司)	Defendant

______________________

AND

HCMP 1211/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1211 OF 2014

______________________

	IN THE MATTER OF SECTION 122(1B) OF THE COMPANIES ORDINANCE, CAP 32
	and
	IN THE MATTER OF ATMI AUSTAR LIFESCIENCES LIMITED

______________________

BETWEEN

	ENZO BARAZETTI	Plaintiff
	and
	ATMI AUSTAR LIFESCIENCES LIMITED	Defendant

______________________

(HEARD TOGETHER)

Before: Hon Harris J, in Chambers

Date of Hearing: 13 August 2014

Date of Decision: 13 August 2014

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D E C I S I O N

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1.  I have two applications before me issued by a director of the relevant two companies seeking orders extending time for laying the companies’ profit and loss account and balance sheet before the company in an annual general meeting.  The applications appear to have been made because the companies are members of a group which is making an application for a listing on the main board of the Stock Exchange of Hong Kong Limited. 

2.  All the relevant breaches of the Ordinance occurred more than three years ago and, therefore, there is no risk of the companies or their directors being prosecuted by virtue of the provisions of section 351A of the Companies Ordinance, Cap 32.

3.  As I have said in previous cases, the Companies Court is not the appropriate venue for the consideration of whether breaches of the Ordinance, in respect of which there is no risk of a prosecution, are matters which should impact on the Stock Exchange’s assessment of an application for a listing.  That is a matter between the applicant and the Stock Exchange.

4.  I am surprised that even in August 2014 when I, and a number of other judges, have delivered judgments making this quite clear, that another application should have been brought before the court on the entirely misguided assumption that it is appropriate to ask the Companies Court to consider granting an extension of time in respect of a breach which is outside the relevant three-year period.

5.  This is an appalling waste of judicial resources and not one that I hope to see repeated.  I, therefore, dismiss both applications. 

	(Jonathan Harris)
	Judge of the Court of First Instance
	High Court

Mr Gary Leung, instructed by Leung & Lau, for the plaintiff in both cases

The defendant (in both cases) were not represented and did not appear