IN RE THE SHOP CLOTHING LTD. t/a THEME

IN RE THE SHOP CLOTHING LTD. t/a THEME

Where a creditor's petition remains unsatisfied and the company is insolvent, the court is not bound to dismiss a winding-up petition by consent of the petitioner and the company; the court retains a discretion under Cap.32 and on the facts it was proper to make an order to wind up the company.

Citation
IN RE THE SHOP CLOTHING LTD. t/a THEME
Parties
Petitioning Creditors: Charris Company Limited; Mullein Company Limited; Wettersley Company Limited; Brightsmart Limited; Excellent Base Limited; Company: The Shop Clothing Limited trading as THEME; Official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 March 1999
Case Number
HCCW927/1998
Procedural Posture
Companies Winding Up (creditors Petition) / Adjourned Hearing and Determination
Outcome
Order to wind up The Shop Clothing Limited under Companies Ordinance Cap.32 made
Legal Topics
Winding Up, Compulsory Liquidation, Consent Summons, Court Discretion
Source Language
EN
Company Law Insolvency Civil Procedure Winding Up Compulsory Liquidation Consent Summons Court Discretion

Case Brief

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Parties

Charris Company Limited; Mullein Company Limited; Wettersley Company Limited; Brightsmart Limited; Excellent Base Limited

Petitioning Creditors

The Shop Clothing Limited trading as THEME

Company

Official Receiver

Official Receiver

Procedural Posture

Companies Winding Up (creditors Petition) / Adjourned Hearing and Determination

Legal Issues

  1. 1 Whether the court must dismiss a creditors winding-up petition when the petitioning creditors and the company consent to dismissal
  2. 2 Whether the court retains discretion to make a compulsory winding-up order despite consent to dismiss
  3. 3 Validity and effect of the company's proposed voluntary winding-up resolutions and notices

Ratio Decidendi

Where a creditor's petition remains unsatisfied and the company is insolvent, the court is not bound to dismiss a winding-up petition by consent of the petitioner and the company; the court retains a discretion under Cap.32 and on the facts it was proper to make an order to wind up the company.

Court Disposition

Order to wind up The Shop Clothing Limited under Companies Ordinance Cap.32 made

Orders

  • Order that The Shop Clothing Limited trading as THEME be wound up under Cap.32
  • Order nisi for costs in favour of the Petitioning Creditors