Hong Kong Judgment

Court of First Instance

RE BEIJING INVESTMENT LTD

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01

Holding and result

The court concluded there was no certain prospect of the Company receiving the anticipated commission and the petitioner would not agree to an adjournment; accordingly the Company was unable to pay its debts and should be wound up, with costs paid from the Company's assets.

Court disposition

Company wound up

Orders

  • Company ordered to be wound up
  • Petitioners costs to be paid out of the Companys assets

02

Material facts

Parties

World Realty Limited

Petitioner Counsel: Miss Jane TC Ho, instructed by Messrs Ford, Kwan & Co.

Beijing Investment Limited

Respondent Counsel: Mr Au Tung Ho Alick (director, representing the Company)

Amounts and remedies

  • Judgment Debt: HKD 916,890.98
  • Anticipated Commission: HKD 4,000,000

03

Procedural history

  1. Posture

    Winding Up Petition Under Companies Ordinance, Cap. 32 / Hearing and Judgment (winding Up Petition)

04

Questions and positions

Legal issues

Party arguments

Applicant
Petitioner relied on an interlocutory judgment debt of HK$916,890.98 (assessed), service of a demand under section 178 and submitted it would not agree to an adjournment; therefore the Company is unable to pay its debts and should be wound up.
Respondent
Company, through its director, stated it is acting as agent for the sale of a hotel in the Mainland and due diligence is ongoing; if sale completes it expects to receive a commission of HK$4,000,000 around February 2006 and sought accommodation/adjournment; Company lacks funds to instruct counsel.

05

Court’s reasoning

  1. 01

    Companies Ordinance, Cap. 32; established insolvency principles

    A company may be wound up if it is unable to pay its debts.

  2. 02

    Companies Ordinance, Cap. 32 s178

    A demand served under section 178 is proper evidence for a petition based on inability to pay.

  3. 03

    High Court discretion and case law

    Speculative or uncertain future receipts are insufficient to defeat a winding up petition; the court exercises discretion to refuse adjournment where prospects are not sufficiently certain.

06

Ratio, limits and disposition

Ratio decidendi

The court concluded there was no certain prospect of the Company receiving the anticipated commission and the petitioner would not agree to an adjournment; accordingly the Company was unable to pay its debts and should be wound up, with costs paid from the Company's assets.

Obiter and limits

  • Leave was granted for the Companys director to represent the Company due to lack of funds to engage solicitors.
  • The Company claimed to be acting as agent in a Mainland hotel sale and undergoing due diligence, but such prospects were not deemed sufficiently certain to avert winding up.

Court disposition

Company wound up

  • Company ordered to be wound up
  • Petitioners costs to be paid out of the Companys assets

Source and reliance status

Court of First Instance · 12 December 2005

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Judgment text

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Source document

Court of First Instance

Judgment· 12 December 2005

RE BEIJING INVESTMENT LTD

bjbj ompanies Ordinance, Cap. 32 ____ Before: Hon Kwan J in Court Date of Hearing: 12 December 2005 Date of Judgment: 12 December 2005 ___

J U D G M E N T ___ This petition is presented by World Realty Limited to wind up Beijing Investment Limited ( the Company ) on the ground that the Company is unable to pay its debts. The petitioning debt is a judgment debt in the sum of HK$916,890.98 with interests and costs obtained by an interlocutory judgment dated 30 September 2004 in HCA No. 3557 of 2003 and assessed by the court at the sum that I have mentioned on 7 July 2005. On 20 July 2005, the petitioner served a demand under section 178 of the Companies Ordinance, Cap. 32 on the Company for the judgment debt. The Company has obtained leave for its director, Mr Au Tung Ho Alick, to represent the Company, as the Company does not have funds to engage legal representatives. Mr Au informed this court that the Company is acting as an agent in respect of the sale of a hotel in the Mainland and due diligence is being carried out by the interested party at the moment. If the transaction should be successfully concluded, the Company may expect to receive a commission of HK$4 million in around February 2006. I see no certain prospect of the Company receiving the commission envisaged at the moment. The petitioner has informed the court it is not prepared to accommodate the Company by agreeing to an adjournment. In the circumstances, I think it is proper to wind up the Company. The petitioner s costs are to be paid out of the Company s assets. (S Kwan) Judge of the Court of First Instance High Court Miss Jane TC Ho, instructed by Messrs Ford, Kwan & Co., for the Petitioner The Company, represented by its director, Mr Au Tung Ho Ali Pkqgim) 1udk 1udk U V i$&`G 5<>| user HCCW.dot setup Microsoft Word 9.0 Judiciary Hong Kong Title Microsoft Word Document MSWordDoc Word.Document.8

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Companies Ordinance, Cap. 32

Legislation

Legislation referenced in the available case record.

Section 178, Companies Ordinance, Cap. 32

Legislation

Legislation referenced in the available case record.

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