Hong Kong Judgment

Court of First Instance

RE TOP AWARD CO LTD

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Source document

01

Holding and result

Because the petitioning debt was supported by an undisputed Labour Tribunal award and the company was unable to pay and filed no evidence in opposition while its director lacked leave to represent it, the court was obliged to order the company wound up and to order costs to be paid out of the company's assets.

Court disposition

Company ordered to be wound up

Orders

  • Top Award Company Limited is to be wound up
  • Petitioner's costs to be paid out of the Company's assets

02

Material facts

Parties

Hashtam Khan

Petitioner Counsel: Miss Fanny Lo, of the Director of Legal Aid

Top Award Company Limited

Company

Official Receiver

Official Receiver Counsel: Mrs Christine Sit

Amounts and remedies

  • Labour Tribunal Award Amount: HKD 125,305.43
  • Total Indebtedness to Other Employees: HKD 290,288.63

03

Procedural history

  1. Posture

    Companies (winding Up) / Winding Up Petition — Final Judgment (order to Wind Up)

04

Questions and positions

Legal issues

Party arguments

Applicant
Petitioner relied on an undisputed Labour Tribunal award for $125,305.43, served a demand on the company, and filed the winding-up petition after the company failed to pay; petitioner rejected the company's proposal to pay by instalments.
Respondent
The company, via its director Mr Daswani, stated it wished to pay by instalments and lacked funds for legal representation; no leave was obtained for the director to represent the company and no evidence in opposition was filed.

05

Court’s reasoning

  1. 01

    Companies Ordinance, Chapter 32

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

  2. 02

    Labour Tribunal award dated 5 June 2003 / Court practice

    An undisputed judgment or tribunal award establishing a debt supports a winding-up petition.

  3. 03

    Court of First Instance practice and procedure

    A director must obtain leave of the court before representing a company in proceedings if the company is unrepresented and claims lack of funds.

06

Ratio, limits and disposition

Ratio decidendi

Because the petitioning debt was supported by an undisputed Labour Tribunal award and the company was unable to pay and filed no evidence in opposition while its director lacked leave to represent it, the court was obliged to order the company wound up and to order costs to be paid out of the company's assets.

Obiter and limits

  • A proposal to pay by instalments does not prevent winding-up where the petitioner refuses the arrangement.
  • Directors must apply for leave before representing their companies in such court proceedings if the company is unrepresented.

Court disposition

Company ordered to be wound up

  • Top Award Company Limited is to be wound up
  • Petitioner's costs to be paid out of the Company's assets

Source and reliance status

Court of First Instance · 10 November 2003

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Judgment reading view

Judgment text

The complete available source text.

Source document

Court of First Instance

Judgment· 10 November 2003

RE TOP AWARD CO LTD

bjbj HCCW 1010/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE COMPANIES (WINDING-UP) NO. 1010 OF 2003 ____ IN THE MATTER of TOP AWARD COMPANY LIMITED and IN THE MATTER of the Companies Ordinance, Chapter 32 ____ Before: Hon Kwan J in Court Date of Hearing: 10 November 2003 Date of Judgment: 10 November 2003 ______

J U D G M E N T ______ This is a petition to wind up Top Award Limited ( the Company ) presented by Mr Hashtam Khan based on an award obtained against the Company in the Labour Tribunal in the sum of $125,305.43. The award was made on 5 June 2003. Apart from the petitioner, the Company is indebted to three other employees in the total sum of $290,288.63. A demand for the petitioner s debt was served on the Company on 12 August 2003. The petition herein was filed on 10 September 2003. When the petition was heard by a master on 5 November 2003, the Company was represented by its director Mr Daswani who informed the master that the Company wished to pay the debt by instalments and that this was rejected by the petitioner. Mr Daswani was explained by the master that he would need to seek leave of the court before he could represent the Company in these proceedings, if it is the Company s position that it is unable to arrange for legal representation due to the lack of funds. Up to today, Mr Daswani has not obtained leave to represent the Company, and no evidence in opposition has been filed by the Company. As the petitioning debt is not in dispute and the Company is not in a position to pay, I must make an order to wind up the Company in these circumstances. 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 Fanny Lo, of the Director of Legal Aid, for the Petitioner The Company: Top Award Ltd, not represented Mrs Christine Sit, for the Official Receiver

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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

Legislation referenced in the available case record.

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