Ambrose J:

This was a petition for the winding-up of Eastern Minerals & Trading (1959) Ltd., a company incorporated in the Federation of Malaya, by Tong Aik (Far East) Ltd. a judgment creditor. The debt alleged in the petition is a sum of $7,504.80, which is said to be the balance due on a bill of costs taxed pursuant to a judgment obtained against the debtor company.

The petition was presented under s. 295(2) of the Companies Ordinance (Cap. 174), as appears from the heading of the amended petition. Section 295(2) provides as follows:

Where a company incorporated outside the Colony which has been carrying on business in the Colony ceases to carry on business in the Colony, it may be wound up as an unregistered company under this Part of this Ordinance, notwithstanding that it has been dissolved or otherwise ceased to exist as a company under or by virtue of the laws of the country under which it was incorporated.

This subsection corresponds to s. 91 of the Companies Act, 1928, which was subsequently re-enacted as s. 338(2) of the Companies Act, 1929. Section 338(2) of the Act of 1929 provides as follows:

Where a company incorporated outside Great Britain which has been carrying on business in Great Britain ceases to carry on business in Great Britain, it may be wound up as an unregistered company under this Part of this Act,

notwithstanding that it has been dissolved or otherwise ceased to exist as a company under or by virtue of the laws of the country under which it was incorporated.'

According to the observations of Lord Atkin in Russian & English Bank v. Baring Brothers [1936] 1 All ER 505 at p. 516 s. 338(2) was introduced into the Act of 1929 for the removing of doubts and to make it clear that the words "if the company is dissolved" in s. 338(1)(d)(i) were meant to apply to an incorporated company dissolved according to the law of its constitution: and not intended to give a new enabling power only applicable to a company which should cease to carry on business after the passing of the Act. Section 338(1)(d) of the Act provides as follows:

Subject to the provisions of this Part of this Act, any unregistered company may be wound up under this Act, and all the provisions of this Act with respect to winding up shall apply to an unregistered company, with the following exceptions and additions:

(d)The circumstances in which an unregistered company may be wound up are as follows:

(i) if the company is dissolved, or has ceased to carry on business, or is carrying on business or is carrying on business only for the purpose of winding up its affairs;

(ii) If the company is unable to pay its debts;

(iii) If the Court is of opinion that it is just and equitable that the company should be wound up.

In Banque de Moscou v. Kindersley [1950] 2 All ER 545 at p. 560, Evershed MR observed as follows:

It follows, in my judgment, that sub-section (2) of s. 338 must be regarded as expository only, and as not having been intended to give jurisdiction to wind up dissolved foreign corporations subject to special limiting conditions not applicable to the more general jurisdiction conferred by sub-section (1);

In the light of these observations it seems clear to me that s. 295(2) of the Companies Ordinance is merely expository and does not give the Court an additional enabling power to make a winding-up order.

The jurisdiction to make winding-up orders in the case of unregistered companies is to be found in s. 295(1). This subsection provides as follows:

Subject to the provisions of this Part of this Ordinance, any unregistered company may be wound up under this Ordinance, and all the provisions of this Ordinance with respect to winding up shall apply to an unregistered company, with the following exceptions and additions:

(b)the circumstances in which an unregistered company may be wound up are as follows:

(i) if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the pu