PETER DE KRASSEL AND ANOTHER v. FRANCIS ROXAS MORAN AND OTHERS

PETER DE KRASSEL AND ANOTHER v. FRANCIS ROXAS MORAN AND OTHERS

The court concluded CBH was unable to pay its debts and that BAH had established a debt due to it; the Shareholders' Agreement did not bar BAH from presenting a winding up petition; although the use of section 228A by directors was open to question, the appropriate remedy was to stay the section 228A proceedings and allow compulsory winding up on insolvency grounds to proceed.

Citation
PETER DE KRASSEL AND ANOTHER v. FRANCIS ROXAS MORAN AND OTHERS
Parties
Petitioner: BOZELL ASIA (HOLDING) LIMITED; 1st Respondent: CAL INTERNATIONAL LIMITED; 2nd Respondent: CAL/BOZELL HOLDINGS LIMITED; 1st Plaintiff: PETER DE KRASSEL; 2nd Plaintiff: CAL INTERNATIONAL LIMITED; 1st Defendant: FRANCIS ROXAS MORAN; 2nd Defendant: THOMAS YEUNG SIN KIT; 3rd Defendant: MICHAEL ANDERSON; 4th Defendant: BOZELL ASIA (HOLDING) LIMITED; 5th Defendant: CAL BOZELL HOLDINGS LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 October 1996
Case Number
HCMP3209/1995
Procedural Posture
Winding Up and Miscellaneous Proceedings / Judgment
Outcome
Winding up petition on insolvency grounds upheld; proceedings under section 228A stayed; compulsory winding up to proceed
Legal Topics
Winding Up, Shareholders' Agreement, Statutory Demand, Directors' Powers and Duties, Section 228 a Appointment of Provisional Liquidators
Source Language
EN
Company Law Insolvency Law Contract Law Winding Up Shareholders' Agreement Statutory Demand Directors' Powers and Duties Section 228 a Appointment of Provisional Liquidators

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Parties

BOZELL ASIA (HOLDING) LIMITED

Petitioner

CAL INTERNATIONAL LIMITED

1st Respondent

CAL/BOZELL HOLDINGS LIMITED

2nd Respondent

PETER DE KRASSEL

1st Plaintiff

CAL INTERNATIONAL LIMITED

2nd Plaintiff

FRANCIS ROXAS MORAN

1st Defendant

THOMAS YEUNG SIN KIT

2nd Defendant

MICHAEL ANDERSON

3rd Defendant

BOZELL ASIA (HOLDING) LIMITED

4th Defendant

CAL BOZELL HOLDINGS LIMITED

5th Defendant

Procedural Posture

Winding Up and Miscellaneous Proceedings / Judgment

Legal Issues

  1. 1 Whether CAL/Bozell Holdings Limited (CBH) was unable to pay its debts within meaning of Companies Ordinance section 177(1)(d)
  2. 2 Whether Bozell Asia (Holding) Limited (BAH) was a creditor with locus to present a winding up petition
  3. 3 Whether the Shareholders' Agreement barred presentation of a winding up petition or otherwise fettered petitioner's rights

Ratio Decidendi

The court concluded CBH was unable to pay its debts and that BAH had established a debt due to it; the Shareholders' Agreement did not bar BAH from presenting a winding up petition; although the use of section 228A by directors was open to question, the appropriate remedy was to stay the section 228A proceedings and allow compulsory winding up on insolvency grounds to proceed.

Court Disposition

Winding up petition on insolvency grounds upheld; proceedings under section 228A stayed; compulsory winding up to proceed

Orders

  • Stay of winding up proceedings under section 228A of the Companies Ordinance
  • Proceed with compulsory winding up proceedings on grounds of insolvency under section 177 of the Companies Ordinance