LU JUN v. ASTROTEC COMPANY LTD (IN LIQUIDATION)
- Citation
- LU JUN v. ASTROTEC COMPANY LTD (IN LIQUIDATION)
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 12 January 2015
- Posture
- Section 255 Application Under Companies (winding Up and Miscellaneous Provisions) Ordinance (cap.32) / Interlocutory Application to File Opposing Evidence Out of Time
- Case number
- HCMP3125/2014
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 12 January 2015
- Posture
- Section 255 Application Under Companies (winding Up and Miscellaneous Provisions) Ordinance (cap.32) / Interlocutory Application to File Opposing Evidence Out of Time
- Case number
- HCMP3125/2014
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The application to file opposing evidence out of time was refused because the respondent's delay was unexplained and unparticularised, its stated logistical excuses (director in Shanghai, festive season) were not credible in the modern communications context and/or postdated the deadline, and the respondent's evidence lacked substantive particulars and conflicted with the winding-up statement, with no authority shown to justify the asserted use of s228A.
Court disposition
Application to file the respondent's opposing evidence out of time refused
Orders
- Application to file the respondent's opposing evidence out of time is refused
02
Material facts
Parties
LU JUN (呂俊)
Applicant Counsel: Mr Jonathan Wong, instructed by DeaconsASTROTEC COMPANY LIMITED (IN LIQUIDATION)
Respondent Counsel: Mr Kevin Li, instructed by Y L Yeung & CoAmounts and remedies
- Days Delay Before Filing: 1
03
Procedural history
Posture
Section 255 Application Under Companies (winding Up and Miscellaneous Provisions) Ordinance (cap.32) / Interlocutory Application to File Opposing Evidence Out of Time
04
Questions and positions
Legal issues
- 01
Whether the respondent may file opposing evidence out of time
- 02
Whether the short delay and late instruction of counsel were excusable
- 03
Whether logistical reasons (director in Shanghai, festive season) justify late filing in the modern communications era
- 04
Whether the respondent's evidence contains sufficient particulars and substantive justification for the use of s228A to defeat a creditor's contractual right to appoint a receiver
- 05
Whether the respondent's explanation is consistent with the statement of winding-up filed
Party arguments
- Applicant
- The applicant argued that the respondent's application to file evidence out of time should be refused because the respondent only instructed lawyers one day before the filing deadline, the asserted difficulties obtaining instructions from the Shanghai-based sole director were unparticularised and unjustified in the age of modern communication, the festive season was not a valid reason and postdated the deadline, and the respondent's evidence lacked substance, particulars and was inconsistent with the winding-up statement.
- Respondent
- The respondent relied on difficulty obtaining instructions from its sole director resident in Shanghai, the impact of the festive season on securing instructions and the late instruction of counsel as explanations for the delay; the respondent also advanced an explanation that the s228A procedure had been used to frustrate a contractual right to appoint a receiver and implied that this justified the actions of the director.
05
Court’s reasoning
Legal principles
- 01
High Court discretion as applied in decision text
The court will refuse late evidence where delay is unexplained or unparticularised and the applicant does not demonstrate sufficient justification for extension of time
- 02
Decision text and modern procedural expectations
Assertions of difficulty in obtaining instructions must be particularised and credible; modern communications reduce the weight of physical remoteness as an excuse
- 03
Decision text
The festive season or public holidays will not automatically justify non-compliance where the deadline had already expired and the assertion is unparticularised
- 04
Companies (Winding Up and Miscellaneous Provisions) Ordinance Cap.32 s228A and decision text
Use of statutory powers such as s228A must be legitimate and supported by authority and particulars where relied upon as a defence to creditor rights
06
Ratio, limits and disposition
Ratio decidendi
The application to file opposing evidence out of time was refused because the respondent's delay was unexplained and unparticularised, its stated logistical excuses (director in Shanghai, festive season) were not credible in the modern communications context and/or postdated the deadline, and the respondent's evidence lacked substantive particulars and conflicted with the winding-up statement, with no authority shown to justify the asserted use of s228A.
Obiter and limits
- Shanghai is a short flight away and modern technology diminishes distance as an excuse
- The festive season cannot rescue an unparticularised delay that occurred before the season
- No authority was cited to demonstrate the legitimacy of using s228A to frustrate a creditor's contractual right to appoint a receiver
Court disposition
Application to file the respondent's opposing evidence out of time refused
- Application to file the respondent's opposing evidence out of time is refused
Source and reliance status
Court of First Instance · 12 January 2015
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 12 January 2015
HCMP 3125/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 3125 OF 2014 _____ IN THE MATTER of ASTROTEC COMPANY LIMITED and IN THE MATTER of Section 255 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance Cap. 32 ____
BETWEEN LU JUN (呂俊) Applicant and ASTROTEC COMPANY LIMITED (IN LIQUIDATION) Respondent Before: Hon Anthony Chan J in Chambers Date of Hearing: 12 January 2015 Date of Decision: 12 January 2015 ____
D E C I S I O N ____ There is before me an application to file the opposing evidence of the respondent out of time. For four reasons, I refuse this application. Firstly, the respondent only instructed its lawyers 1 day before the deadline for the filing of its evidence. Such delay is unexplained. Secondly, there is an unparticularised assertion that there was “difficulty” in taking instructions from the sole director of the respondent who lives in Shanghai. With respect, such a reason can no longer be accepted in an age of modern technology. In any event, Shanghai is only a short flight away. Thirdly, it is suggested that the festive season had added to the difficulty in question. Again, the assertion is unparticularised. In any case, the festive season only came into play after the expiration of the deadline for filing the respondent’s evidence. Finally, I am unable to see much substance in the evidence of the respondent. It contains no proper particulars. It suggests that the s 228A procedure was used to frustrate a contractual right to appoint receiver, which might be exercised by a major creditor. If true, I am not at all convinced that this was a legitimate exercise of the power under s 228A by the director of the respondent. No authority has been cited before me to demonstrate the legitimacy of such an action. Perhaps more importantly, this explanation is contrary to the statement of winding-up filed in these matters. Accordingly, this application is refused. (Anthony Chan) Judge of the Court of First Instance High Court Mr Jonathan Wong, instructed by Deacons, for the applicant Mr Kevin Li, instructed by Y L Yeung & Co, for the respondent
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