How to restore a struck off or dissolved Hong Kong company to the register

Restore a Struck Off Hong Kong Company: Administrative and Court Routes

A Hong Kong company struck off the register or dissolved can be restored by one of two routes: administrative restoration or court order restoration. Which route applies turns on how long ago the company was removed and whether it was solvent at the time. The cost, timeline, and conditions you must satisfy all flow from that choice.

The Registrar of Companies strikes a company off under section 744 of the Companies Ordinance (Cap. 622) where there is reasonable cause to believe it is not carrying on business or in operation. A company may also be dissolved after deregistration on Form NDR1 or following liquidation. Whatever the reason, the company ceases to exist as a legal entity. Its assets vest in the government as bona vacantia. Its directors lose the ability to manage its affairs. To restore a struck off Hong Kong company, act within the statutory time limits and satisfy the relevant conditions.

Administrative Restoration Hong Kong

Administrative restoration is the simpler, cheaper route. It is available only to a company struck off under section 744 while solvent and dissolved for no more than 20 years. The application goes to the Companies Registry on the prescribed form. The Registrar can restore the company without a court hearing.

The key conditions for administrative restoration are:

• The company was carrying on business or in operation at the time it was struck off.
• The company had no outstanding liabilities at the date of striking off.
• The company has not been wound up.
• The company has not been dissolved following deregistration or liquidation.
• The company has not been dissolved for more than 20 years.

The applicant must also obtain a notice of no objection from the Commissioner of Inland Revenue confirming that the Inland Revenue Department has no objection to the restoration. This requires settling any outstanding tax liabilities, filing overdue profits tax returns, and cancelling outstanding business registration certificate obligations. The Commissioner issues the notice only when satisfied that all tax matters are in order.

Once the notice is obtained, file the application with the Companies Registry together with the prescribed fee. The Registrar restores the company to the register. The company is deemed to have continued in existence as if it had not been struck off. The restoration is effective from the date of the Registrar's notice.

Court Order Restoration Hong Kong

Court order restoration is the route for companies that do not qualify for administrative restoration. That includes companies dissolved for more than 20 years, companies dissolved following deregistration or liquidation, and companies where there are disputes about the restoration.

The application is made by petition to the Court of First Instance. The court has discretion to order restoration on such terms as it thinks fit. The applicant must demonstrate that it is just and equitable to restore the company. The court will consider factors such as:

• The reason the company was struck off or dissolved.
• Whether the company had outstanding liabilities at the time of removal.
• Whether the company has assets that should be distributed to members or creditors.
• Whether restoration would prejudice any person who has acquired rights in relation to the company's property.

The court may impose conditions. It may require the company to pay the costs of the petition or to file outstanding annual returns. It may also order that the company's assets be returned to it, subject to any claims by the government or third parties.

The court order restoration process is more expensive and time-consuming than administrative restoration. Legal representation is necessary. The applicant must serve the petition on the Companies Registry, the Inland Revenue Department, and any other interested parties.

Hong Kong Company Restoration Process

The Hong Kong company restoration process begins with determining which route applies. For administrative restoration, the steps are:

1. Obtain a notice of no objection from the Commissioner of Inland Revenue.
2. Complete the application form for administrative restoration.
3. Pay the prescribed fee to the Companies Registry.
4. File the application and supporting documents.
5. Await the Registrar's decision.

For court order restoration, the steps are:

1. Prepare and file a petition with the Court of First Instance.
2. Serve the petition on the Companies Registry, the Inland Revenue Department, and any other interested parties.
3. Attend the court hearing.
4. Obtain the court order.
5. File the court order with the Companies Registry.
6. Pay the prescribed fee.

Administrative restoration can take several weeks. Court order restoration can take several months.

Restore Dissolved Company Hong Kong

To restore a dissolved company Hong Kong, first establish why the company was dissolved. If the company was dissolved after deregistration on Form NDR1, administrative restoration is not available. The company must apply to the court. If the company was dissolved after liquidation, the liquidator's final report and the court's order dissolving the company mean that only court order restoration is possible.

In either case, the applicant must show that restoration is necessary to deal with assets or liabilities not dealt with at the time of dissolution. If the company held property that was not distributed, or if outstanding debts need to be recovered, restoration may be the only way to resolve the matter.

Directors' Obligations Survive Striking Off

Directors' obligations survive the company being struck off. The company's dissolution does not extinguish directors' duties, including the duty to prepare final audited financial statements and final profits tax returns. The Inland Revenue Department can still pursue directors for unpaid tax. The Companies Registry can require directors to file outstanding annual returns.

If a company is restored, the directors must bring all filings up to date. File overdue annual returns on Form NAR1. Pay the late filing fees. File outstanding profits tax returns. Renew the business registration certificate and pay the relevant fees.

Practical Considerations

Before applying to restore a struck off Hong Kong company, consider whether restoration is the right solution. If the company has no remaining assets or liabilities and the only issue is that it was struck off without proper closure, it may be simpler to let the dissolution stand and start a new company. But if the company holds assets that need to be dealt with, or if legal proceedings require the company's existence, restoration is necessary.

The costs of restoration include government fees, professional fees for legal and accounting advice, and any outstanding tax or filing fees. Budget for these costs before proceeding.

For further information, refer to the Companies Registry website at https://www.cr.gov.hk/en/home/index.htm and the Inland Revenue Department website for guidance on obtaining the notice of no objection.