RE CARRIAN HOLDINGS LTD

RE CARRIAN HOLDINGS LTD

Although the joint venture agreement was an unprofitable contract and prima facie disclaimable under s.268, the court exercised its discretion to refuse leave to disclaim because Miramar had offered an indemnity which afforded adequate protection to the joint liquidators and because refusal would cause likely serious prejudice to Miramar's right to litigate; accordingly leave was granted to Miramar to commence proceedings against Carrian Holdings Limited.

Citation
RE CARRIAN HOLDINGS LTD
Parties
Applicant/plaintiff: Miramar Hotel & Investment Company Limited; Applicant/co Plaintiff: Chaintower Company Limited; Applicant/co Plaintiff: Wise Maneon Investment Limited; Respondent/defendant (in Liquidation): Carrian Holdings Limited; Defendant/interested Party: Snowbright Company Limited; Defendant/interested Party: Gwynedd Investments Limited; Defendant/affected Company: Armatys Estates Limited; Defendant/affected Company: Beaux Estates Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 December 1984
Case Number
HCCW244/1983
Procedural Posture
Companies Winding Up / Interlocutory (hearing on Summonses for Disclaimer and for Leave to Commence Proceedings)
Outcome
Application by joint liquidators for leave to disclaim refused; summons by Miramar, Chaintower and Wise for leave to commence proceedings against Carrian Holdings Limited granted.
Legal Topics
Disclaimer Under S.268, Winding Up, Unprofitable Contracts, Indemnity to Liquidators, Leave to Commence Proceedings, Vesting Orders, Third Party Prejudice
Source Language
EN
Company Law Insolvency Contract Law Civil Procedure Disclaimer Under S.268 Winding Up Unprofitable Contracts Indemnity to Liquidators +3 more

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Parties

Miramar Hotel & Investment Company Limited

Applicant/plaintiff

Chaintower Company Limited

Applicant/co Plaintiff

Wise Maneon Investment Limited

Applicant/co Plaintiff

Carrian Holdings Limited

Respondent/defendant (in Liquidation)

Snowbright Company Limited

Defendant/interested Party

Gwynedd Investments Limited

Defendant/interested Party

Armatys Estates Limited

Defendant/affected Company

Beaux Estates Limited

Defendant/affected Company

Procedural Posture

Companies Winding Up / Interlocutory (hearing on Summonses for Disclaimer and for Leave to Commence Proceedings)

Legal Issues

  1. 1 Whether the joint liquidators could disclaim the company's interest in the joint venture agreement and shares under section 268
  2. 2 Whether Miramar was an 'interested person' for the purposes of section 268 despite not being a party to the joint venture agreement
  3. 3 Whether the indemnity offered by Miramar adequately protected the liquidators and justified refusal to disclaim

Ratio Decidendi

Although the joint venture agreement was an unprofitable contract and prima facie disclaimable under s.268, the court exercised its discretion to refuse leave to disclaim because Miramar had offered an indemnity which afforded adequate protection to the joint liquidators and because refusal would cause likely serious prejudice to Miramar's right to litigate; accordingly leave was granted to Miramar to commence proceedings against Carrian Holdings Limited.

Court Disposition

Application by joint liquidators for leave to disclaim refused; summons by Miramar, Chaintower and Wise for leave to commence proceedings against Carrian Holdings Limited granted.

Orders

  • Disclaimer under section 268 refused
  • Leave granted to Miramar Hotel & Investment Company Limited, Chaintower Company Limited and Wise Maneon Investment Limited to commence proceedings against Carrian Holdings Limited in respect of the action