DU SHUI WING AND OTHERS v. FU KIN FUNG AND OTHERS

DU SHUI WING AND OTHERS v. FU KIN FUNG AND OTHERS

The court found there were serious issues to be tried, the company's affairs were being conducted in a manner causing operational jeopardy and unfair prejudice to members and that the balance of convenience favored interim intervention; accordingly, pending determination of the amended petition the court appointed a receiver/manager to protect company assets and manage operations, subject to the usual undertaking as to damages.

Citation
[2020] HKCFI 2924
Parties
Petitioners: 1st to 7th Petitioners; Respondent: 1st Respondent; Respondent: 2nd Respondent; Respondent: 3rd Respondent; Respondent: 4th Respondent; 5th Respondent (company): 5th Respondent - Kwai Ching United Green Public Light Bus Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 November 2020
Case Number
HCMP846/2019
Procedural Posture
Company Petition Under Companies Ordinance S724 (unfairly Prejudicial Conduct) / Interim Application for Appointment of Receiver/manager (chambers Hearing; Interlocutory)
Outcome
Interim appointment of receiver/manager granted pending final determination of the amended petition
Legal Topics
Unfairly Prejudicial Conduct, Appointment of Receiver/manager, Interim Relief Test (american Cyanamid), Validity of General Meetings and Directors' Removal, Access to Company Bank Accounts and Operational Control
Source Language
EN
Company Law Injunctions Receivership Corporate Governance Employment/payroll Compliance Unfairly Prejudicial Conduct Appointment of Receiver/manager Interim Relief Test (american Cyanamid) +2 more

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Parties

1st to 7th Petitioners

Petitioners

1st Respondent

Respondent

2nd Respondent

Respondent

3rd Respondent

Respondent

4th Respondent

Respondent

5th Respondent - Kwai Ching United Green Public Light Bus Company Limited

5th Respondent (company)

Procedural Posture

Company Petition Under Companies Ordinance S724 (unfairly Prejudicial Conduct) / Interim Application for Appointment of Receiver/manager (chambers Hearing; Interlocutory)

Legal Issues

  1. 1 Whether there is a serious issue to be tried on the petition alleging unfairly prejudicial conduct
  2. 2 Whether there is a proper basis for appointing a receiver/manager (jeopardy to assets and management dysfunction)
  3. 3 Whether the balance of convenience favors appointment of an interim receiver/manager

Ratio Decidendi

The court found there were serious issues to be tried, the company's affairs were being conducted in a manner causing operational jeopardy and unfair prejudice to members and that the balance of convenience favored interim intervention; accordingly, pending determination of the amended petition the court appointed a receiver/manager to protect company assets and manage operations, subject to the usual undertaking as to damages.

Court Disposition

Interim appointment of receiver/manager granted pending final determination of the amended petition

Orders

  • Upon the usual undertaking as to damages given by the petitioners, Mr Alvin Wan Tin Yau of Moores Rowland (HK) CPA Limited is appointed receiver/manager of the 5th respondent pending final determination of the amended petition to manage and conduct the ordinary business of the Company including calculating and...
  • The appointed receiver/manager is authorized to charge a flat fee of $48,000 per month and to take steps including engagement of lawyers as necessary to exercise his powers and duties