RE BTH CO LTD

RE BTH CO LTD

The Guarantee, read with the Settlement Agreement and its express terms, covered the whole outstanding contract sum including liabilities that arose upon repudiation of the Settlement Agreement; there was no bona fide dispute about the Companys liability; alleged cross-claims were inadequately pleaded, unquantified, and not shown to arise from the same transaction, so they could not defeat the petition; accordingly the winding-up order was properly made and the Company was indebted to the petitioner for US$2,423,173.78.

Citation
RE BTH CO LTD
Parties
Petitioner/creditor: Burr Oak Tool and Gauge Company, Inc.; Respondent/guarantor: BTH Company Limited (formerly Bel Trade (Holdings) Company Limited); Principal Debtor: Bel Trade (China) Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 March 2003
Case Number
HCCW736/2002
Procedural Posture
Companies (winding Up) No. 736 of 2002 / Final Judgment (winding Up Order)
Outcome
Winding-up order made against BTH Company Limited; petition granted.
Legal Topics
Guarantee, Suretyship, Construction of Contract, Winding Up Petition, Set Off, Economic Torts, Misrepresentation, Cross Claims
Source Language
EN
Company Law Insolvency Contract Law Tort Law Guarantee Suretyship Construction of Contract Winding Up Petition +4 more

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Parties

Burr Oak Tool and Gauge Company, Inc.

Petitioner/creditor

BTH Company Limited (formerly Bel Trade (Holdings) Company Limited)

Respondent/guarantor

Bel Trade (China) Company Limited

Principal Debtor

Procedural Posture

Companies (winding Up) No. 736 of 2002 / Final Judgment (winding Up Order)

Legal Issues

  1. 1 Whether the guarantee covered the whole outstanding contract sum including liability upon repudiation or only instalment payments under the settlement agreement
  2. 2 Whether there existed a bona fide dispute over the Companys liability under the Guarantee
  3. 3 Whether alleged cross-claims by the Company or Bel Trade China constituted a serious and genuine defence or set-off sufficient to defeat the petition

Ratio Decidendi

The Guarantee, read with the Settlement Agreement and its express terms, covered the whole outstanding contract sum including liabilities that arose upon repudiation of the Settlement Agreement; there was no bona fide dispute about the Companys liability; alleged cross-claims were inadequately pleaded, unquantified, and not shown to arise from the same transaction, so they could not defeat the petition; accordingly the winding-up order was properly made and the Company was indebted to the petitioner for US$2,423,173.78.

Court Disposition

Winding-up order made against BTH Company Limited; petition granted.

Orders

  • Winding-up order made against the Company (BTH Company Limited)
  • Petitioner’s costs to be paid out of the Companys assets