TSUI MEI YUK JANICE and WONG SUN KEUNG the Joint and Several Liquidators of HMV MARKETING LTD (in Voluntary Liquidation) v. PANORAMA CORPORATION LTD AND OTHERS

TSUI MEI YUK JANICE and WONG SUN KEUNG the Joint and Several Liquidators of HMV MARKETING LTD (in Voluntary Liquidation) v. PANORAMA CORPORATION LTD AND OTHERS

The presumption under s.266(5) was rebutted on the affidavit evidence: defendants showed a plausible commercial explanation that Panorama remained willing to supply when other suppliers had deserted HMV, the Transfer facilitated immediate and substantial further supply, there was no evidence of collusion or that ListCo directed Panorama to benefit from the payment, and the misfeasance allegations lacked particularity. Therefore the liquidators failed to prove the company was influenced by a desire to prefer Panorama and the application was dismissed.

Citation
[2022] HKCFI 260
Parties
Plaintiff Joint and Several Liquidator of HMV Marketing Limited (in Voluntary Liquidation): TSUI MEI YUK JANICE; Plaintiff Joint and Several Liquidator of HMV Marketing Limited (in Voluntary Liquidation): WONG SUN KEUNG; 1st Defendant: PANORAMA CORPORATION LIMITED; 2nd Defendant: SHIU STEPHEN JUNIOR; 3rd Defendant: SUN LAP KEY CHRISTOPHER
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 January 2022
Case Number
HCMP784/2020
Procedural Posture
Company Winding Up Application by Liquidators (unfair Preference and S.276 Misfeasance) / Chambers Decision on Originating Summons (application Hearing Concluded)
Outcome
Liquidators' application dismissed; declarations and orders sought refused
Legal Topics
Unfair Preference, Misfeasance, Breach of Fiduciary Duty, Liquidators' Remedies, Presumptions Under S.266 CWUMPO
Source Language
EN
Company Law Insolvency Law Civil Procedure Unfair Preference Misfeasance Breach of Fiduciary Duty Liquidators' Remedies Presumptions Under S.266 CWUMPO

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 5 Authorities cited 6 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

TSUI MEI YUK JANICE

Plaintiff Joint and Several Liquidator of HMV Marketing Limited (in Voluntary Liquidation)

WONG SUN KEUNG

Plaintiff Joint and Several Liquidator of HMV Marketing Limited (in Voluntary Liquidation)

PANORAMA CORPORATION LIMITED

1st Defendant

SHIU STEPHEN JUNIOR

2nd Defendant

SUN LAP KEY CHRISTOPHER

3rd Defendant

Procedural Posture

Company Winding Up Application by Liquidators (unfair Preference and S.276 Misfeasance) / Chambers Decision on Originating Summons (application Hearing Concluded)

Legal Issues

  1. 1 Whether the 19 November 2018 transfer of HK$3,022,679.56 was an unfair preference under ss.266/266B CWUMPO
  2. 2 Whether the s.266(5) presumption that the company was influenced by a desire to prefer Panorama was rebutted
  3. 3 Whether directors Shiu and Sun are liable for misfeasance or breach of fiduciary duty under s.276 CWUMPO

Ratio Decidendi

The presumption under s.266(5) was rebutted on the affidavit evidence: defendants showed a plausible commercial explanation that Panorama remained willing to supply when other suppliers had deserted HMV, the Transfer facilitated immediate and substantial further supply, there was no evidence of collusion or that ListCo directed Panorama to benefit from the payment, and the misfeasance allegations lacked particularity. Therefore the liquidators failed to prove the company was influenced by a desire to prefer Panorama and the application was dismissed.

Court Disposition

Liquidators' application dismissed; declarations and orders sought refused

Orders

  • Application dismissed
  • Order nisi that there be no order as to costs