PERFORMANCE INVESTMENT PRODUCTS CORPORATION LTD

PERFORMANCE INVESTMENT PRODUCTS CORPORATION LTD

The court refused to remove the provisional liquidators because the alleged non-disclosures were not shown to be material or deliberate, there was no prima facie or substantive basis shown for the criminal complaints that would render the provisional liquidators unable to perform, the provisional liquidators had been acting diligently and effectively across jurisdictions, and replacement would not be for the general advantage of creditors; accordingly their appointment continues and costs are awarded against the applicants on an indemnity basis.

Citation
PERFORMANCE INVESTMENT PRODUCTS CORPORATION LTD
Parties
Petitioning Creditor (petitioner): Juliana S Garrett; Company (subject of Winding Up): Performance Investment Products Corporation Limited; Provisional Liquidator: Roderick John Sutton; Provisional Liquidator: Desmond Chung Seng Chiong; Applicant Creditor: Harvie de Baron; Applicant Creditor: Alfonso Martin Eizmendi; Official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 October 2007
Case Number
HCCW348/2007
Procedural Posture
Companies (winding Up) No. 348 of 2007 (winding Up Petition) / Chambers Hearing on Summons to Continue or Remove Provisional Liquidators (interlocutory)
Outcome
Application dismissed; appointment of provisional liquidators continued until hearing of the petition or further order
Legal Topics
Appointment and Removal of Provisional Liquidators, Ex Parte Disclosure/non Disclosure, Effect of Criminal Allegations on Insolvency Appointments, Costs Orders, Mareva Injunctions
Source Language
EN
Company Law Insolvency Law Civil Procedure Cross Border Insolvency Appointment and Removal of Provisional Liquidators Ex Parte Disclosure/non Disclosure Effect of Criminal Allegations on Insolvency Appointments Costs Orders +1 more

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Parties

Juliana S Garrett

Petitioning Creditor (petitioner)

Performance Investment Products Corporation Limited

Company (subject of Winding Up)

Roderick John Sutton

Provisional Liquidator

Desmond Chung Seng Chiong

Provisional Liquidator

Harvie de Baron

Applicant Creditor

Alfonso Martin Eizmendi

Applicant Creditor

Official Receiver

Official Receiver

Procedural Posture

Companies (winding Up) No. 348 of 2007 (winding Up Petition) / Chambers Hearing on Summons to Continue or Remove Provisional Liquidators (interlocutory)

Legal Issues

  1. 1 Whether material non-disclosure in the ex parte application required setting aside the appointment of provisional liquidators
  2. 2 Whether criminal complaints in the Philippines rendered the Provisional Liquidators unsuitable and required their removal
  3. 3 Whether investor opposition justified removal and replacement of provisional liquidators

Ratio Decidendi

The court refused to remove the provisional liquidators because the alleged non-disclosures were not shown to be material or deliberate, there was no prima facie or substantive basis shown for the criminal complaints that would render the provisional liquidators unable to perform, the provisional liquidators had been acting diligently and effectively across jurisdictions, and replacement would not be for the general advantage of creditors; accordingly their appointment continues and costs are awarded against the applicants on an indemnity basis.

Court Disposition

Application dismissed; appointment of provisional liquidators continued until hearing of the petition or further order

Orders

  • Appointment of Roderick John Sutton and Desmond Chung Seng Chiong as provisional liquidators to continue until hearing of the petition or further order
  • Costs of the provisional liquidators to be paid by the Applicant Creditors on an indemnity basis