Form NSC9 Hong Kong Court Application for Restraining Financial Assistance

Form NSC9 Hong Kong and Restraining Financial Assistance

Form NSC9 Hong Kong is a court application form used when a company seeks a court order to restrain the giving of financial assistance for the acquisition of its own shares or those of its holding company. The legal basis for this application is found in the Companies Ordinance (Cap. 622). A company limited by shares that intends to give financial assistance, such as a loan, guarantee, or indemnity, for the purchase of its shares must first obtain a restraining order from the court if the transaction falls outside the statutory exemptions. The form is filed with the Companies Registry after the court has made the order, not before. The application itself is made to the Court of First Instance, and the court’s sealed order is then attached to Form NSC9 for delivery to the Registrar of Companies.

Financial Assistance Court Order Hong Kong

The requirement for a financial assistance court order Hong Kong arises under section 283 of Cap. 622. A company cannot give financial assistance for the acquisition of its own shares unless the assistance is expressly permitted by the Ordinance or the company has obtained a court order authorising it. The court will grant such an order only if it is satisfied that the company will remain solvent immediately after the assistance is given and that the assistance is in the interests of the company and its shareholders. The application is made by originating summons, and the company must serve notice on any creditor or shareholder who may be affected. The court may impose conditions on the order, such as requiring a solvency statement from the directors or shareholder approval by special resolution.

Restraining Financial Assistance Companies Registry

After the court grants the order, the company must notify the restraining financial assistance Companies Registry by delivering Form NSC9 along with a certified true copy of the court order. The form must be filed within 14 days after the order is made, unless the court directs otherwise. The Companies Registry will then register the order and record it against the company’s file. Failure to deliver the form within the statutory period may result in a penalty or a fine. The form is available for public inspection through the Registry’s e-Services portal, and any interested person may search the company’s records to confirm that a restraining order is in place. The company should retain a copy of the filed form and the court order for its own records.

Cap 622 Financial Assistance Prohibition

The Cap 622 financial assistance prohibition is set out in Part 6, Division 5 of the Companies Ordinance. The general rule is that a company cannot give financial assistance for the acquisition of its own shares, whether directly or indirectly. The prohibition applies to all companies limited by shares, regardless of their size or whether they have a share capital listed on a stock exchange. However, there are several exemptions. Financial assistance is permitted without a court order if the company is a private company, the assistance is given in accordance with procedures under sections 290 to 296, and the directors make a solvency statement. The assistance must also be approved by a special resolution of shareholders. If the company is a public company, it must either obtain a court order under section 283 or fall within one of the narrow exemptions, such as lending money to employees to purchase shares under an employee share scheme.

Required Content of Form NSC9

The form itself is a prescribed document that must contain the following information:

• The company’s name and its company registration number
• The date of the court order and the case reference number
• The names of the parties to the proceedings (the applicant and the respondent, if any)
• A brief description of the financial assistance that the court has restrained
• The effective date of the restraining order
• The signature of the company secretary or a director, or of the solicitor acting for the company

The form must be accompanied by a certified true copy of the court order. If the order is in Chinese, it must be accompanied by an English translation certified by a translator or by the court. The Registrar may refuse to register the order if the form is incomplete or if the accompanying documents are not properly certified.

Procedural Steps for Filing Form NSC9

The procedural steps for filing are as follows:

1. Obtain the court order. The company’s legal representatives apply to the Court of First Instance for a restraining order under section 283 of Cap. 622. The application must be supported by an affidavit setting out the grounds for the order and demonstrating that the company will remain solvent after the assistance is given.

2. Prepare Form NSC9. Download the specified form from the Companies Registry website. Complete all fields accurately. Attach a certified true copy of the court order. If the court order is in Chinese, attach a certified English translation.

3. File the form. Deliver the completed Form NSC9 and the accompanying documents to the Companies Registry. The filing can be done electronically through the e-Services portal, or in paper form at the Registry’s counter. The registration fee is HK$295 for paper filing or HK$265 for electronic filing (as of March 2025; confirm the current fee with the Registry).

4. Receive acknowledgment. The Registry will issue an acknowledgment of receipt once the form is registered. The company should keep this acknowledgment with its statutory records.

5. Update company records. The directors should note the court order and the restrictions it imposes. If the restraining order is permanent or has conditions, the company must ensure that any future transactions comply with those conditions.

Directors’ Duties and Compliance

Directors have a duty to ensure that any financial assistance given by the company complies with Cap. 622. Before applying for a court order, the directors must consider whether the assistance is in the best interests of the company and whether the company can meet its debts as they fall due. The solvency statement, if required, must be made by all directors and must confirm that the company will remain solvent for the 12 months following the assistance. Directors who make a solvency statement without reasonable grounds may be liable for a fine or imprisonment. The form NSC9 serves as a public record of the court’s supervision over such transactions, and the Companies Registry will retain it for the lifetime of the company.

Where to Obtain and File Form NSC9

Form NSC9 is available for download from the Companies Registry’s specified forms index at cr.gov.hk/en/forms/specified.htm. The same page links to the e-Services portal at www.eregistry.gov.hk, where the form can be completed and submitted electronically. Paper forms can be obtained from the Registry’s office at Queensway Government Offices, 25/F, 66 Queensway, Hong Kong. The form is also linked from the Companies Registry’s guide on share capital transactions. Always check the Registry’s website for the most current version of the form, as the Registry revises forms periodically. Using an outdated version may result in rejection.