RE MF GLOBAL HONG KONG LTD

Parties

Procedural Posture

Companies (winding Up) / Application to Convert Court Winding Up to Creditors' Voluntary Winding Up and Determination Whether S202(1) Companies Ordinance Applies (decision on Conversion and Statutory Interpretation)

Legal Issues

1. 1 Whether a provisional liquidator in office under section 194(1)(aa) of the Companies Ordinance is a "liquidator" for the purposes of section 202(1)
2. 2 Whether moneys realised by such provisional liquidators must be paid into the Companies Liquidation Account and attract ad valorem fees under the Companies (Fees and Percentages) Order Cap 32C
3. 3 Whether the court should convert the court winding ups into creditors' voluntary winding ups and appoint the provisional liquidators as joint and several liquidators and establish committees of inspection, and the appropriate committee composition

Ratio Decidendi

A provisional liquidator in office by virtue of section 194(1)(aa) of the Companies Ordinance is not a "liquidator" for the purposes of section 202(1); therefore section 202(1) and the ad valorem fee provisions of the Companies (Fees and Percentages) Order do not apply to sums realised by such provisional liquidators absent legislative change.

Court Disposition

Application granted in part: both liquidations converted to creditors' voluntary winding up; provisional liquidators appointed as joint and several liquidators; committees of inspection appointed; statutory construction ruling that s202(1) does not apply to provisional liquidators in office under s194(1)(aa).

Orders

• Both MF Global Hong Kong Limited and MF Global Holdings HK Limited converted to creditors' voluntary winding up pursuant to section 209A of the Companies Ordinance
• Patrick Cowley, Fergal Power and Lui Yee Man (KPMG) appointed as joint and several liquidators of each company under section 194(1)(c)