Hong Kong Judgment

Court of First Instance

RE EDWIN E & M ENGINEERING LTD

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Source document

01

Holding and result

Because the petition debt was undisputed and the company withdrew its opposition, the court was satisfied that a winding-up order should be made; costs are to be paid out of the company's assets and a single set of costs applies for supporting creditors.

Court disposition

Winding-up order made against Edwin E & M Engineering Limited

Orders

  • Winding-up order made against the Company
  • Petitioner's costs to be paid out of the Company's assets
  • One set of costs for all supporting creditors to be paid out of the Company's assets

02

Material facts

Parties

Mr Chan Yuk Lam Terry

Petitioner Counsel: Mr Joseph Lo (Director of Legal Aid)

Edwin E & M Engineering Limited

Company/respondent Counsel: Mr Tam Kin Yip (instructed by Ivan Tang & Co.)

Chung Yuen E & M Limited

Supporting Creditor Counsel: Ms Evelyn Lee Hoi See (instructed by Andrew W Y Ng & Co.)

Mr Siu Ping Kwan

Supporting Creditor

Mr Lai Shu Ming

Supporting Creditor

Mr Chan Man To

Supporting Creditor

Official Receiver's Office

Interested Party Counsel: Miss Vivian Yeung

Amounts and remedies

  • Labour Tribunal Award (individual Petitioner): HKD 7,478.4
  • Aggregate Indebtedness to 16 Employees: HKD 980,757.6

03

Procedural history

  1. Posture

    Companies (winding Up) / Judgment Winding Up Order Made

04

Questions and positions

Legal issues

Party arguments

Applicant
Petitioner relied on a Labour Tribunal award for $7,478.40 and supporting creditors including a judgment creditor (Chung Yuen) whose settlement had been defaulted, seeking winding-up for unpaid debts.
Respondent
Company initially opposed and filed two affidavits but withdrew opposition at hearing and did not dispute the debts.

05

Court’s reasoning

  1. 01

    Companies Ordinance, Chapter 32 / established insolvency principle

    Where a company is unable to pay its debts and the debt is undisputed a winding-up order is appropriate

  2. 02

    Court practice and Companies Ordinance, Chapter 32

    Costs of petition and costs among supporting creditors are payable out of the assets of the company upon a winding-up order

06

Ratio, limits and disposition

Ratio decidendi

Because the petition debt was undisputed and the company withdrew its opposition, the court was satisfied that a winding-up order should be made; costs are to be paid out of the company's assets and a single set of costs applies for supporting creditors.

Obiter and limits

  • Supporting creditor Chung Yuen's judgment debt became immediately due upon default under the settlement agreement
  • Company had filed affidavits but cessation of opposition removed any factual dispute over debt

Court disposition

Winding-up order made against Edwin E & M Engineering Limited

  • Winding-up order made against the Company
  • Petitioner's costs to be paid out of the Company's assets
  • One set of costs for all supporting creditors to be paid out of the Company's assets

Source and reliance status

Court of First Instance · 22 September 2003

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Judgment text

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Source document

Court of First Instance

Judgment· 22 September 2003

RE EDWIN E & M ENGINEERING LTD

bjbjU HCCW000689/2003 HCCW 689/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE COMPANIES (WINDING-UP) NO. 689 OF 2003 ____ IN THE MATTER of EDWIN E & M ENGINEERING LIMITED AND IN THE MATTER of the Companies Ordinance, Chapter 32 ____ Coram: Hon Kwan J in Court Date of Hearing: 22 September 2003 Date of Judgment: 22 September 2003 ______

J U D G M E N T ______ 1. This is a petition to wind up Edwin E & M Engineering Limited ("the Company") presented by Mr Chan Yuk Lam Terry based on an award obtained from the Labour Tribunal on 8 October 2002 in the sum of $7,478.40. By the same award, the Company is also indebted to 16 other employees in the aggregate sum of $980,757.60.

2. There are four supporting creditors to this petition, including Chung Yuen E & M Limited, which is a judgment creditor and had previously petitioned to wind up the Company but had withdrawn its petition on reaching a settlement with the Company in April 2003. However, as the Company has defaulted in making payment to this supporting creditor under the settlement agreement, the entire remaining balance of the judgment debt has become due to this supporting creditor.

3. The Company has initially opposed the petition and has filed two affidavits in opposition. I am, however, informed by counsel appearing for the Company today that the Company no longer wishes to oppose the petition.

4. As the debt in the petition is not in dispute and opposition is withdrawn by the Company, I make a winding-up order against the Company. The petitioner's costs are to be paid out of the Company's assets. There will also be one set of costs for all the supporting creditors, to be paid out of the assets of the Company. (S Kwan) Judge of the Court of First Instance High Court Representation: Mr Joseph Lo, of the Director of Legal Aid, for the Petitioner Mr Tam Kin Yip, instructed by Messrs Ivan Tang & Co., for the Company Ms Evelyn Lee Hoi See, instructed by Messrs Andrew W Y Ng & Co., for the Supporting Creditor, Chung Yuen E & M Ltd Three Supporting Creditors: Mr Siu Ping Kwan, Mr Lai Shu Ming and Mr Chan Man To, acting in person, present Miss Vivian Yeung, instructed by the Official Receiver's Office " % & ' 2 t% HCCW000689/2003 Judiciary Normal.dot Judiciary Microsoft Word 9.0 Unisys HCCW000689/2003 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, Chapter 32

Legislation

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