RE THE JOINT AND SEVERAL LIQUIDATORS OF BANKAMERICA NOMINEES (HONG KONG) LTD (IN MEMBERS’ VOLUNTARY LIQUIDATION)

RE THE JOINT AND SEVERAL LIQUIDATORS OF BANKAMERICA NOMINEES (HONG KONG) LTD (IN MEMBERS’ VOLUNTARY LIQUIDATION)

The unclaimed cash and securities held by the nominee company are trust assets for unidentified clients; the court may authorise the realisation of readily realizable securities and payment of cash or sale proceeds into court under ss56 and 62 Trustee Ordinance, but the liquidators' costs cannot be deducted without taxation because the statutory regime under Cap 32 s196(2) and Cap 32H r176(1) mandates taxation of liquidators' fees and the court has no power to dispense with that requirement.

Citation
[2020] HKCFI 399
Parties
Applicant (liquidators): Joint and several liquidators of BankAmerica Nominees (Hong Kong) Limited; Company (in Liquidation): BankAmerica Nominees (Hong Kong) Limited (in Members Voluntary Liquidation)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 March 2020
Case Number
HCMP2023/2018
Procedural Posture
Miscellaneous Proceedings Under Companies Winding Up Rules and Trustee Ordinance (hcmp) / Adjourned Hearing of Originating Summons; Judgment at First Instance
Outcome
Application granted in part. Court authorised sale of specified readily realizable securities and payment into court; non‑saleable physical scrip to be paid into court; authorization extended to future receipts prior to finalization; liquidators' costs must be taxed by the Registrar.
Legal Topics
Unclaimed Trust Assets, Trustee Powers (s56, S62 Trustee Ordinance), Payment Into Court, Realisation of Securities, Taxation of Liquidators' Fees
Source Language
EN
Trusts Companies Law Insolvency Civil Procedure Equity Unclaimed Trust Assets Trustee Powers (s56, S62 Trustee Ordinance) Payment Into Court +2 more

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Parties

Joint and several liquidators of BankAmerica Nominees (Hong Kong) Limited

Applicant (liquidators)

BankAmerica Nominees (Hong Kong) Limited (in Members Voluntary Liquidation)

Company (in Liquidation)

Procedural Posture

Miscellaneous Proceedings Under Companies Winding Up Rules and Trustee Ordinance (hcmp) / Adjourned Hearing of Originating Summons; Judgment at First Instance

Legal Issues

  1. 1 Whether unallocated cash and securities held by a nominee company are trust assets
  2. 2 Whether court may authorise sale of securities and payment of proceeds into court under s56 and s62 Trustee Ordinance
  3. 3 Whether liquidators may deduct their fees from unclaimed assets without taxation or summary assessment

Ratio Decidendi

The unclaimed cash and securities held by the nominee company are trust assets for unidentified clients; the court may authorise the realisation of readily realizable securities and payment of cash or sale proceeds into court under ss56 and 62 Trustee Ordinance, but the liquidators' costs cannot be deducted without taxation because the statutory regime under Cap 32 s196(2) and Cap 32H r176(1) mandates taxation of liquidators' fees and the court has no power to dispense with that requirement.

Court Disposition

Application granted in part. Court authorised sale of specified readily realizable securities and payment into court; non‑saleable physical scrip to be paid into court; authorization extended to future receipts prior to finalization; liquidators' costs must be taxed by the Registrar.

Orders

  • Authorize liquidators to sell specified listed securities (Schedule 1) and pay net proceeds into court
  • Authorize payment into court of unclaimed physical scrip/securities not readily saleable (Schedule 2)