RE THE EXPRESS BUILDERS CO LTD (the Company)

RE THE EXPRESS BUILDERS CO LTD (the Company)

Where the court's taxation process of provisional liquidators' fees was put in train before a s209A(1) conversion order, the court has jurisdiction to complete that assessment rather than permitting withdrawal and deferring assessment to the committee of inspection; s209A/209B are primarily deeming and priority provisions and do not automatically shift assessment of pre-conversion provisional liquidators' fees to the committee; accordingly the court ordered the fee notes to remain in the taxation process and proceeded to finalize assessment if no adequate response received, and awarded costs to the Official Receiver to be paid from the company's assets.

Citation
RE THE EXPRESS BUILDERS CO LTD (the Company)
Parties
Company: The Express Builders Company Limited; Provisional/liquidators: David John Kennedy and Fan Wai Kuen (RSM Nelson Wheeler Corporate Advisory Services Limited); Official Receiver: The Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 November 2004
Case Number
HCCW409/2003
Procedural Posture
Companies (winding Up) / Chambers Decision on Jurisdiction and Costs After Hearing
Outcome
Court ruled that the taxation process commenced before the s209A conversion order should be completed by the court; fee notes must not be withdrawn; only the Official Receiver's costs of the jurisdiction hearing ordered to be paid out of the Company's assets; Liquidators not entitled to recoup their hearing costs...
Legal Topics
S209 a Conversion to Creditors' Voluntary Winding Up, Remuneration of Provisional Liquidators, Jurisdiction to Tax Costs, Committee of Inspection Powers, Official Receiver Duties
Source Language
EN
Company Law Insolvency Law Procedural Law S209 a Conversion to Creditors' Voluntary Winding Up Remuneration of Provisional Liquidators Jurisdiction to Tax Costs Committee of Inspection Powers Official Receiver Duties

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

The Express Builders Company Limited

Company

David John Kennedy and Fan Wai Kuen (RSM Nelson Wheeler Corporate Advisory Services Limited)

Provisional/liquidators

The Official Receiver

Official Receiver

Procedural Posture

Companies (winding Up) / Chambers Decision on Jurisdiction and Costs After Hearing

Legal Issues

  1. 1 Whether the court has jurisdiction after an order under s209A(1) to commence or complete taxation of provisional liquidators' fees where taxation was begun before conversion
  2. 2 Whether the committee of inspection in a creditors' voluntary winding up can approve pre-conversion fees of provisional liquidators and require the Official Receiver to pay from the Companies Liquidation Account
  3. 3 Allocation of costs for the jurisdiction hearing

Ratio Decidendi

Where the court's taxation process of provisional liquidators' fees was put in train before a s209A(1) conversion order, the court has jurisdiction to complete that assessment rather than permitting withdrawal and deferring assessment to the committee of inspection; s209A/209B are primarily deeming and priority provisions and do not automatically shift assessment of pre-conversion provisional liquidators' fees to the committee; accordingly the court ordered the fee notes to remain in the taxation process and proceeded to finalize assessment if no adequate response received, and awarded costs to the Official Receiver to be paid from the company's assets.

Court Disposition

Court ruled that the taxation process commenced before the s209A conversion order should be completed by the court; fee notes must not be withdrawn; only the Official Receiver's costs of the jurisdiction hearing ordered to be paid out of the Company's assets; Liquidators not entitled to recoup their hearing costs...

Orders

  • Fee notes of the provisional liquidators are not to be withdrawn from the taxation process
  • If no response to the court's letter dated 7 February 2004 is received from the liquidators within 14 days the court will finalise its assessment of the provisional liquidators' fees and disbursements