RE LEHMAN BROTHERS FUTURES ASIA LTD

RE LEHMAN BROTHERS FUTURES ASIA LTD

The court exercised its jurisdiction to permit interim payments on account but limited the payment to 75% of the fees claimed for the provisional liquidation period (excluding fees relating to billing tasks) and 100% of other disbursements, granted liberty to apply for further interim payments, required undertakings...

Source-derived case information.

Citation
RE LEHMAN BROTHERS FUTURES ASIA LTD
Parties
Subject of Winding Up Petitions: Lehman Brothers group companies (LBSA, LBFA, LBCCA, Lehman Brothers Asia Limited, LBAH, LBACC, LBQ, LBN); Applicants (provisional Liquidators Then Liquidators): Paul Brough, Edward Middleton and Patrick Cowley (KPMG); Interested Party/opponent on Safeguards: Official Receiver; Solicitors to the Provisional Liquidators (principal Firm): O'Melveny & Myers; Solicitors Instructed by the Provisional Liquidators: Linklaters; Solicitors Instructed by the Provisional Liquidators: Mayer Brown JSM
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 August 2009
Case Number
HCCW452/2008
Procedural Posture
Companies (winding Up) / Directions Hearing on Interim Payments and Assessment of Liquidators' Remuneration (judgment on Interim Payment)
Outcome
Interim payments ordered in part; validation order granted; further directions reserved for final assessment
Legal Topics
Provisional Liquidators' Remuneration, Interim Payment on Account, Validation Order Under S182, Assessment Procedure for Fees, Billing Task Recoverability, Undertakings and Security
Source Language
en
Company Law Insolvency Law Civil Procedure Costs and Taxation of Fees Provisional Liquidators' Remuneration Interim Payment on Account Validation Order Under S182 Assessment Procedure for Fees +2 more

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Parties

Lehman Brothers group companies (LBSA, LBFA, LBCCA, Lehman Brothers Asia Limited, LBAH, LBACC, LBQ, LBN)

Subject of Winding Up Petitions

Paul Brough, Edward Middleton and Patrick Cowley (KPMG)

Applicants (provisional Liquidators Then Liquidators)

Official Receiver

Interested Party/opponent on Safeguards

O'Melveny & Myers

Solicitors to the Provisional Liquidators (principal Firm)

Linklaters

Solicitors Instructed by the Provisional Liquidators

Mayer Brown JSM

Solicitors Instructed by the Provisional Liquidators

Procedural Posture

Companies (winding Up) / Directions Hearing on Interim Payments and Assessment of Liquidators' Remuneration (judgment on Interim Payment)

Legal Issues

  1. 1 Whether court has jurisdiction to order interim payment to provisional/liquidators
  2. 2 Appropriate quantum/percentage for interim payment on account of fees and agents' fees
  3. 3 Whether fees for billing-related tasks are recoverable and payable on interim basis

Ratio Decidendi

The court exercised its jurisdiction to permit interim payments on account but limited the payment to 75% of the fees claimed for the provisional liquidation period (excluding fees relating to billing tasks) and 100% of other disbursements, granted liberty to apply for further interim payments, required undertakings from the Provisional Liquidators and principal Hong Kong solicitors to repay any excess, and validated the payments under section 182; billing-task fees were excluded from interim payment pending further assessment.

Court Disposition

Interim payments ordered in part; validation order granted; further directions reserved for final assessment

Orders

  • Interim payment of 75% of fees claimed by the Provisional Liquidators and their agents for the Provisional Liquidation Period, excluding fees incurred in relation to the Billing Tasks
  • Interim payment of 100% of other disbursements (excluding agents' fees) for the Provisional Liquidation Period