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Under Hong Kong law, a company shall be deemed to be unable to pay its debts if a creditor, to whom the company is indebted of at least HKD 10,000 (around USD 1,290), has served on the company a demand requiring the company to pay and the company has not done so within three weeks. The interaction between winding-up petitions and arbitration agreements in underlying contracts has been the subject of several decisions in recent years, both in Hong Kong and in other common law jurisdictions. The voluntary winding up of a company begins by a special resolution being passed for the company to be voluntarily wound up and publishing this information in the Gazette within 14 days. 31st July 2020 – (Hong Kong) Hong Thai Travel Services Ltd., which has been operating in Hong Kong for many years, was sued at the High Court by its creditors for a winding-up petition yesterday (30th). This judgment reaffirms the three core requirements approved in Kam v Kam for the Hong Kong Courts to exercise their jurisdiction to wind up a foreign company under s.327 of Cap.32. 6. Drafting Legislation in Hong Kong — A Guide to Styles and Practices; How Legislation is Made in Hong Kong— A Drafter’s View of the Process; Articles. Copy of the petition should be submitted to the Official Receiver's Office and the Chief Bailiff. The interplay between insolvency and arbitration proceedings in Hong Kong Twitter Linkedin. Arbitration or winding-up: Debt collection in Hong Kong following Lasmos . The Court of Appeal held that the fact that Shandong Chenming was a PRC company, even though solvent, with no assets in Hong Kong and listed on the Hong Kong stock exchange, was not a bar to a winding-up petition being presented against it in Hong Kong. Background On 17 December 2018, Deputy High Court Judge William Wong SC (the “Judge”) decided that the Petition should be struck out or dismissed and the Petitioner then applied to withdraw the Petition. He explained that the law in this area is evolving and whether an arbitration agreement can protect a debtor from a winding up petition ultimately depends on the specific facts. In Re Southwest Pacific Bauxite (HK) Ltd [2018] 2 HKLRD 449 (“the Lasmos case”), High Court of Hong Kong (Harris J) struck out a winding-up petition issued by Lasmos (for failure by Southwest to pay a debt under a statutory demand), arising out of a management services agreement that contained an arbitration clause.The issue in the case was the impact of the arbitration clause on … A subsidiary of Deutsche Bank has filed a petition in Bermuda seeking the liquidation of Hong Kong-listed developer Goldin Financial Holdings, the company said in a … A compulsory liquidation is initiated with the presentation of a petition for the winding-up of the company. A creditor may then petition to wind-up the debtor. In Re St Piran Ltd [1981] 3 All ER 270, the Court did not rule out the possibility of winding up a listed company on the ground of the management flouting the regulatory codes alone. Appendix No. WINDING UP PETITION AGAINST THE COMPANY IN BERMUDA On 27 November 2019 (Hong Kong time), the Company received a winding up petition (the "Bermuda Petition") dated 19 November 2019 filed by Luk Fook 3DM with the Supreme Court of Bermuda (the "Supreme Court") against the Company for the Debt and interest accrued thereunder.The Bermuda Petition has been fixed for hearing before the … Here, the Court held that the leverage created by the prospect of a winding-up petition or appointment of a liquidator and the steps that a liquidator may take to recover assets amounted to such benefit. Option . Due to COVID-19 pandemic, many companies are experiencing operational difficulties and have even been shut down. In addition, a sealed copy (copy with the Court's chop) of the petition should be delivered to the company at its registered office. Drafting and Making Legislation in Hong Kong. February 12, 2020 Lasmos Limited v Southwest Pacific Bauxite (HK) Limited 1. If a company is registered as a limited company and is highly indebted, creditors have the right to file a petition for winding up in order to recover the compensation they are entitled to, and even shareholders, as well as the company itself, can petition to wind up the company. The Court of Appeal had held that in assessing whether or not a winding up petition was well-founded one needs to consider the factual position prevailing as at the date of the commencement of the proceedings and that subsequent events ought to be disregarded insofar as they demonstrate deadlock or a breakdown in mutual trust … 6) and the Bankruptcy Rules (Cap. … The creditor who […] CVLs are (generally) insolvent liquidations. The Court of Appeal’s judgment (the “2020 judgment“) can be found here. In the recent Hong Kong case of Champ Prestige International Ltd v China City Construction (International) Co Ltd [2] ("Champ"), the Hong Kong Court of First Instance reached a similar conclusion in refusing to stay a just and equitable winding up petition in favour of arbitration, albeit the judgment did not refer to China CVS. Feeds and Subscription; Font Size: Language: Quick Search. On 10 December 2018, winding up order was made against the Company on the Creditor’s Winding Up Petition. On 3 October 2018, the Petition was listed for hearing. 32) (the Winding-Up Ordinance) and subsidiary legislation (including the Companies (Winding-Up) Rules (Cap. Other common law jurisdictions have very similar … Section/Rule No. A compulsory liquidation is commenced by filing a winding-up petition at court and is usually presented on the grounds of insolvency. The board of Directors wishes to update the shareholders and potential investors of the Company that the hearing of the winding up petitions under action numbers HCCW 403 of 2020 (the "Petition") will be adjourned with liberty to restore until 11 January 2021 by the Judiciary of Hong Kong. On 9 March 2015, Harris J handed down the Reasons for Decision in Re China Metal Recycling (Holdings) Limited, HCCW 210/2013, seeking to explain comprehensively the principles by which a public interest petition presented by the Securities and Futures Commission (the “SFC”) to wind up a company listed in Hong Kong under section 212 of the Securities and Futures Ordinance (Cap. While it is a factor the Court will take into account, the Court will not preclude winding-up petitions even if the petitioner is free to dispose of its shares. It is clear that a winding-up petition should be dismissed where the debt is disputed in good faith and on substantial grounds. A Hong Kong dessert chain known for selling mango treats and glutinous rice balls around the world has been served with a winding-up petition, as another landlord sued for months of unpaid rent. Court refuses to restrain presentation of winding-up petition and comments on ex parte proceedings RPC MEMBER FIRM OF . Recent decisions of the Hong Kong and Singapore courts show different approaches to the issue of when a winding-up petition will be allowed to proceed in circumstances where there is an arbitration agreement. Part No. The court has set a schedule to process the relevant application at 10am on 4th November. Before the topical Lasmos decision in March 2018, the general position, where a company faced with a winding-up petition wanted to have it struck out, was for the company to demonstrate that it had a bona fide dispute on substantial grounds … In view of the pending Creditor’s Winding Up Petition which the court was told would be uncontested, the court ordered a temporary stay of the Petition including the amendment summons. MVLs and (subject to one limited exception) CVLs are commenced by shareholder resolution. It is only improper to seek to use a winding-up petition to pressure a company into payment of a disputed debt, the Court said. Interpretation of Bilingual Legislation; Is It in Operation? Where a creditor has submitted a winding up petition in respect of an undisputed debt, the primary approach of the court is that the creditor will be entitled to a winding up order "as of right" unless special reasons can be shown why the relief should not be granted. Voluntary winding up of a Hong Kong company can be initiated either by members (shareholders) or creditors. MVLs are a solvent liquidation process – all creditors are to be paid in full and any surplus distributed to shareholders. A winding-up petition based on the ground of insolvency will not be stayed to arbitration if the debt arises under an agreement which contains an arbitration clause; to defeat the petition, the debtor must demonstrate that it has a “bona fide defence on substantial grounds to the claim for the underlying debt” (Re Sky Datamann (Hong Kong) Limited (unrep., HCCW 487/2001)). Sit Kwong Lam v Petrolimex Singapore Pte. the winding up of Hong Kong companies and foreign corporations registered in Hong Kong); (iii) the Bankruptcy Ordinance (Cap. Schedule No. The Hong Kong jurisprudence on this issue is divided. The early authorities decided the matter on a traditional approach by staying or dismissing the petition with regard to whether the alleged debt was disputed on genuine and substantial grounds. The petition must be advertised in the Hong Kong Gazette and newspapers at least 7 days before the hearing of the petition (unless the company obtains an injunction against the advertising of the petition or there is another Court order to the contrary). Hong Kong October 13 2020 Introduction . 32H)), dealing with corporate insolvency (i.e. Previously in Hong Kong, neither the existence of an arbitration clause in a contract between the company and petitioner, nor the commencement of the arbitration was sufficient to demonstrate in the insolvency proceedings that the “debt” was bona fide disputed on substantial grounds (which is the test to be satisfied by a company facing a winding-up petition when seeking to … The winding up is said to begin on the date on which the resolution is passed. 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