RE PERFORMANCE INVESTMENT PRODUCTS CORPORATION LTD

RE PERFORMANCE INVESTMENT PRODUCTS CORPORATION LTD

The court held the Subject Funds are trust assets, tracing individual entitlements is impracticable, and the Berkeley Applegate principle applies: the Joint Liquidators are entitled to have their reasonable fees and disbursements assessed and paid out of the Subject Funds. The Philippines injunction is not binding or enforceable in Hong Kong and the Liquidator is directed not to comply. The proposed cross-border protocol with the BVI is approved. Taxation of fees shall be undertaken by a taxing master applying a prudence/relevance test and allowing creditor participation in the taxation process.

Citation
RE PERFORMANCE INVESTMENT PRODUCTS CORPORATION LTD
Parties
Company (in Liquidation): Performance Investment Products Corporation Limited; Liquidator and Joint Liquidator: Roderick Sutton; Related Company in BVI Liquidation / Joint Liquidators: Performance Investment Products Corporation (PIPC BVI); Representative Body of Investors/creditors: Committee of Inspection; Group of Investors Opposing Applications: Abbas Group; Official Receiver (holds Majority of Recovered Funds): Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 March 2014
Case Number
HCCW348/2007
Procedural Posture
Companies (winding Up) No 348 of 2007 / Summons for Directions Under S200(3) of the Companies Ordinance: Application for Berkeley Applegate Relief, Approval of Cross Border Protocol and Directions on Foreign Injunction
Outcome
Summons granted in part and directions made
Legal Topics
Berkeley Applegate Principle, Pari Passu Ex Post Facto Distribution, Recognition/enforcement of Foreign Judgments, Taxation of Liquidator's Remuneration, Approval of Cross Border Protocol
Source Language
EN
Insolvency Trusts Conflict of Laws Cross Border Insolvency Civil Procedure Berkeley Applegate Principle Pari Passu Ex Post Facto Distribution Recognition/enforcement of Foreign Judgments +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Performance Investment Products Corporation Limited

Company (in Liquidation)

Roderick Sutton

Liquidator and Joint Liquidator

Performance Investment Products Corporation (PIPC BVI)

Related Company in BVI Liquidation / Joint Liquidators

Committee of Inspection

Representative Body of Investors/creditors

Abbas Group

Group of Investors Opposing Applications

Official Receiver

Official Receiver (holds Majority of Recovered Funds)

Procedural Posture

Companies (winding Up) No 348 of 2007 / Summons for Directions Under S200(3) of the Companies Ordinance: Application for Berkeley Applegate Relief, Approval of Cross Border Protocol and Directions on Foreign Injunction

Legal Issues

  1. 1 Whether recovered funds are trust assets and how to distribute them
  2. 2 Whether the liquidator's remuneration and disbursements can be paid out of the trust assets under the Berkeley Applegate principle
  3. 3 Whether a Philippines court injunction binds the Hong Kong liquidation or must be complied with in Hong Kong

Ratio Decidendi

The court held the Subject Funds are trust assets, tracing individual entitlements is impracticable, and the Berkeley Applegate principle applies: the Joint Liquidators are entitled to have their reasonable fees and disbursements assessed and paid out of the Subject Funds. The Philippines injunction is not binding or enforceable in Hong Kong and the Liquidator is directed not to comply. The proposed cross-border protocol with the BVI is approved. Taxation of fees shall be undertaken by a taxing master applying a prudence/relevance test and allowing creditor participation in the taxation process.

Court Disposition

Summons granted in part and directions made

Orders

  • Sanction and approval of the Cross-Border Protocol (Annex A) between the Hong Kong Liquidator and the Joint Liquidators of PIPC BVI, subject to BVI court approval
  • Declaration that the entirety of the assets held by the Company are trust assets (the Subject Funds) and to be distributed pari passu ex post facto to beneficially entitled parties