RE RICHEL GROUP HONG KONG LTD.

RE RICHEL GROUP HONG KONG LTD.

Section 209 gives contributories jurisdiction to seek a stay of the winding-up; where liquidators adopt a neutral or non-oppositional stance, a contributory may pursue an application (including in the company\u0027s name) to set aside the judgment and the absence of express liquidator consent is procedural not substantive; the Petitioner\u0027s preliminary locus challenge therefore failed and the Notice of Motion must proceed to full hearing with directions for evidence and listing before another judge.

Citation
RE RICHEL GROUP HONG KONG LTD.
Parties
Petitioner / Creditor / Plaintiff in Underlying Action: Carrefour Korea Ltd; Company (2nd Defendant / Respondent): Richel Group Hong Kong Limited; 1st Defendant: Worldplex Industrial Ltd; 3rd Defendant / Applicant to Set Aside Default Judgment: Mr Hector Gerardo Pines; Contributory / Former Director: Mr Julian Gonzalez; Contributory / Former Director: Mr Alberto Martinez Boehden; Joint and Several Liquidators (appointed 15 June 1999, Provisional From 4 March 1999): Mr Nicholas Hill and Mr Fan Wai Kuen
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 January 2000
Case Number
HCCW77/1999
Procedural Posture
Companies Winding Up Proceedings / Interlocutory Application for Stay of Winding Up and Leave to Apply in the Company\u0027s Name to Set Aside a Default Judgment (preliminary Issue Heard)
Outcome
Petitioner\u0027s preliminary challenge dismissed; Notice of Motion allowed to proceed to full hearing
Legal Topics
Winding Up, Contributories\u0027 Locus/standing, Setting Aside Default Judgment, Powers and Duties of Liquidators, Jurisdictional Basis for Stay
Source Language
EN
Companies Law Insolvency Civil Procedure Winding Up Contributories\u0027 Locus/standing Setting Aside Default Judgment Powers and Duties of Liquidators Jurisdictional Basis for Stay

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Parties

Carrefour Korea Ltd

Petitioner / Creditor / Plaintiff in Underlying Action

Richel Group Hong Kong Limited

Company (2nd Defendant / Respondent)

Worldplex Industrial Ltd

1st Defendant

Mr Hector Gerardo Pines

3rd Defendant / Applicant to Set Aside Default Judgment

Mr Julian Gonzalez

Contributory / Former Director

Mr Alberto Martinez Boehden

Contributory / Former Director

Mr Nicholas Hill and Mr Fan Wai Kuen

Joint and Several Liquidators (appointed 15 June 1999, Provisional From 4 March 1999)

Procedural Posture

Companies Winding Up Proceedings / Interlocutory Application for Stay of Winding Up and Leave to Apply in the Company\u0027s Name to Set Aside a Default Judgment (preliminary Issue Heard)

Legal Issues

  1. 1 Whether a contributory may apply to the Court in the name of the company to set aside a judgment on which a winding-up petition is based
  2. 2 Whether s.209 Companies Ordinance provides jurisdiction for a contributory to apply for a stay of winding-up
  3. 3 Whether the consent of liquidators is a precondition to a contributory applying in the company\u0027s name to set aside judgment

Ratio Decidendi

Section 209 gives contributories jurisdiction to seek a stay of the winding-up; where liquidators adopt a neutral or non-oppositional stance, a contributory may pursue an application (including in the company\u0027s name) to set aside the judgment and the absence of express liquidator consent is procedural not substantive; the Petitioner\u0027s preliminary locus challenge therefore failed and the Notice of Motion must proceed to full hearing with directions for evidence and listing before another judge.

Court Disposition

Petitioner\u0027s preliminary challenge dismissed; Notice of Motion allowed to proceed to full hearing

Orders

  • Dismissed the Petitioner\u0027s application on the preliminary issue with costs
  • Directed parties to file evidence on the Notice of Motion