RE JACKIN TOTAL FULFILMENT SERVICES LTD

RE JACKIN TOTAL FULFILMENT SERVICES LTD

The court concluded that, absent the parent company guarantee dated 30 January 2008, it would have ordered the winding up of the company; accordingly JSM succeeded for the period up to and including 30 January 2008 and is entitled to its costs for that period, to be taxed if not agreed. The petitioner's application to vary the costs order between it and the company was refused because no legal obligation existed for the company to provide the detailed explanation the petitioner sought and speculative assertions do not alter the normal rule that costs follow the event.

Citation
RE JACKIN TOTAL FULFILMENT SERVICES LTD
Parties
Supporting Creditor: Johnson, Stokes & Masters
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 September 2008
Case Number
HCCW628/2006
Procedural Posture
Winding Up Petition (insolvency) / Decision on Costs Following Dismissal of Winding Up Petition and Applications to Vary Costs Order Nisi
Outcome
Costs order nisi varied as to supporting creditor JSM; petitioner's application to vary costs as between petitioner and company denied
Legal Topics
Winding Up, Costs Orders, Statutory Demand, Parent Company Guarantee
Source Language
EN
Insolvency Civil Procedure Costs Winding Up Costs Orders Statutory Demand Parent Company Guarantee

Case Brief

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Parties

Johnson, Stokes & Masters

Supporting Creditor

Procedural Posture

Winding Up Petition (insolvency) / Decision on Costs Following Dismissal of Winding Up Petition and Applications to Vary Costs Order Nisi

Legal Issues

  1. 1 Whether the original costs order nisi between the petitioner and the company should be varied
  2. 2 Whether the supporting creditor (JSM) is entitled to its costs given the parent company guarantee provided shortly before judgment
  3. 3 Whether a company receiving a statutory demand has an obligation to explain disputes in detail such that costs should be adjusted

Ratio Decidendi

The court concluded that, absent the parent company guarantee dated 30 January 2008, it would have ordered the winding up of the company; accordingly JSM succeeded for the period up to and including 30 January 2008 and is entitled to its costs for that period, to be taxed if not agreed. The petitioner's application to vary the costs order between it and the company was refused because no legal obligation existed for the company to provide the detailed explanation the petitioner sought and speculative assertions do not alter the normal rule that costs follow the event.

Court Disposition

Costs order nisi varied as to supporting creditor JSM; petitioner's application to vary costs as between petitioner and company denied

Orders

  • The costs of and occasioned by JSM in the petition up to and including 30 January 2008 are to be paid by the company to JSM, to be taxed if not agreed
  • The petitioner shall pay the company's costs of the petitioner's application to vary the costs order nisi