CHINA MEDICAL TECHNOLOGIES, INC. (IN LIQUIDATION) v. WU XIAODONG AND OTHERS

CHINA MEDICAL TECHNOLOGIES, INC. (IN LIQUIDATION) v. WU XIAODONG AND OTHERS

Section 276 is procedural only and does not create an independent cause of action; Rule 58 mandatorily requires s276 applications to be made by summons in winding up proceedings; therefore the pleaded s276 'claim' in the Statement of Claim disclosed no reasonable cause of action and those parts must be struck out; the Plaintiffs' attempt to cure by RHC O2 r1 failed and their O2 r1 Summons was dismissed.

Citation
[2019] HKCFI 2957
Parties
Plaintiff (in Liquidation): China Medical Technologies, Inc; Plaintiff: CMED Technologies Ltd; Plaintiffs (joint and Several Liquidators): Cosimo Borrelli and Yuen Lai Yee; Defendant (1st): Wu Xiaodong; Defendant (2nd): Samson Tsang Tak Yung; Defendant (3rd): Chen Zhong; Defendant (4th): Zhu Feng (Charles); Defendant (5th): Chong Wing Hip; Defendant (6th): Hao Xiaoqing Allan; Defendant (7th): Supreme Well Investments Limited; Defendant (8th): East Hope International Limited; Defendant (9th): Cheer Link International Limited; Defendant (10th): Innovative Technology Investment Limited; Defendant (11th): Dynamic Sense Limited; Defendant (12th): Time Region Holdings Limited; Defendant (13th): Bi Xiaoqiong; Defendant (14th): Worldpro Investments Limited; Defendant (15th): Long Chart Investments Limited; Defendant (16th): Chavis Investments Limited; Defendant (17th): Sinowell International Investment Limited; Defendant (18th): Chengxuan International Ltd; Defendant (19th): Weixiao Medical Technology Limited; Defendant (20th): WB International Holding Pte Ltd; Defendant (21st): Max Prosper Enterprises Limited; Defendant (22nd): Jun Yun Bi; Defendant (23rd): Global Flash Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 December 2019
Case Number
HCA1417/2013
Procedural Posture
Civil Company Winding Up / Misfeasance / Interlocutory (strike Out and Procedural Summons Hearing in Chambers)
Outcome
Parts of the Statement of Claim concerning s276 struck out; Plaintiffs' RHC O2 r1 Summons dismissed; costs nisi in favour of 2nd Defendant
Legal Topics
Misfeasance, Section 276 Companies (winding Up and Miscellaneous Provisions) Ordinance, Companies (windingup) Rules Rule 58, Strike Out, Abuse of Process, Liquidator Remedies
Source Language
EN
Company Law Insolvency Equity Civil Procedure Misfeasance Section 276 Companies (winding Up and Miscellaneous Provisions) Ordinance Companies (windingup) Rules Rule 58 Strike Out +2 more

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Parties

China Medical Technologies, Inc

Plaintiff (in Liquidation)

CMED Technologies Ltd

Plaintiff

Cosimo Borrelli and Yuen Lai Yee

Plaintiffs (joint and Several Liquidators)

Wu Xiaodong

Defendant (1st)

Samson Tsang Tak Yung

Defendant (2nd)

Chen Zhong

Defendant (3rd)

Zhu Feng (Charles)

Defendant (4th)

Chong Wing Hip

Defendant (5th)

Hao Xiaoqing Allan

Defendant (6th)

Supreme Well Investments Limited

Defendant (7th)

East Hope International Limited

Defendant (8th)

Cheer Link International Limited

Defendant (9th)

Innovative Technology Investment Limited

Defendant (10th)

Dynamic Sense Limited

Defendant (11th)

Time Region Holdings Limited

Defendant (12th)

Bi Xiaoqiong

Defendant (13th)

Worldpro Investments Limited

Defendant (14th)

Long Chart Investments Limited

Defendant (15th)

Chavis Investments Limited

Defendant (16th)

Sinowell International Investment Limited

Defendant (17th)

Chengxuan International Ltd

Defendant (18th)

Weixiao Medical Technology Limited

Defendant (19th)

WB International Holding Pte Ltd

Defendant (20th)

Max Prosper Enterprises Limited

Defendant (21st)

Jun Yun Bi

Defendant (22nd)

Global Flash Limited

Defendant (23rd)

Procedural Posture

Civil Company Winding Up / Misfeasance / Interlocutory (strike Out and Procedural Summons Hearing in Chambers)

Legal Issues

  1. 1 Whether s276 proceedings can be pleaded as a cause of action in an ordinary High Court action
  2. 2 Whether Rule 58 requires s276 applications to be made by summons in winding up proceedings
  3. 3 Whether s276 creates an independent cause of action or is purely procedural

Ratio Decidendi

Section 276 is procedural only and does not create an independent cause of action; Rule 58 mandatorily requires s276 applications to be made by summons in winding up proceedings; therefore the pleaded s276 'claim' in the Statement of Claim disclosed no reasonable cause of action and those parts must be struck out; the Plaintiffs' attempt to cure by RHC O2 r1 failed and their O2 r1 Summons was dismissed.

Court Disposition

Parts of the Statement of Claim concerning s276 struck out; Plaintiffs' RHC O2 r1 Summons dismissed; costs nisi in favour of 2nd Defendant

Orders

  • Liberty to the parties to apply for directions in relation to s276 in terms similar or substantially similar to the consent summons dated 22 November 2019