RE GOLDEN GATE INTERNATIONAL KINDERGARTEN AND NURSERY LTD

RE GOLDEN GATE INTERNATIONAL KINDERGARTEN AND NURSERY LTD

Because the petitioner's claimed debt is contingent on the company becoming profitable, a contingency that cannot occur once the company is insolvent and subject to winding up, the debt is not admissible to proof and the petitioner is not a creditor for the purposes of s179; therefore the petitioner lacked locus to present the petition and the petition must be dismissed.

Citation
[2018] HKCFI 641
Parties
Petitioner: Wong Shui Fun; Opposing Contributory: Estate of Wayne Ko; Company/respondent: Golden Gate International Kindergarten and Nursery Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 February 2018
Case Number
HCCW210/2017
Procedural Posture
Companies Winding Up Proceedings / Hearing on Petition
Outcome
petition dismissed
Legal Topics
Contingent Debts, Locus Standi of Creditor, Proof of Debt, Winding Up, Statutory Interpretation
Source Language
EN
Company Law Insolvency Law Bankruptcy Contingent Debts Locus Standi of Creditor Proof of Debt Winding Up Statutory Interpretation

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Parties

Wong Shui Fun

Petitioner

Estate of Wayne Ko

Opposing Contributory

Golden Gate International Kindergarten and Nursery Limited

Company/respondent

Procedural Posture

Companies Winding Up Proceedings / Hearing on Petition

Legal Issues

  1. 1 Whether the petitioner is a contingent creditor with locus to present a winding up petition
  2. 2 Whether a debt contingent on the company becoming profitable can be admitted to proof if winding up is sought
  3. 3 Application and interplay of ss179 and 263 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Cap 32

Ratio Decidendi

Because the petitioner's claimed debt is contingent on the company becoming profitable, a contingency that cannot occur once the company is insolvent and subject to winding up, the debt is not admissible to proof and the petitioner is not a creditor for the purposes of s179; therefore the petitioner lacked locus to present the petition and the petition must be dismissed.

Court Disposition

petition dismissed

Orders

  • Petition dismissed
  • Costs order nisi that the petitioner pays the opposing contributory's costs of the petition