RE SINO AMERICAN TELECOM INC.

RE SINO AMERICAN TELECOM INC.

Where an opposing contributory alleges that a winding‑up petition is presented for an improper purpose and is an abuse of process, that party must promptly present and prove the abuse‑of‑process case before the hearing of the petition; failure to do so risks dismissal for delay and, if the allegation fails, the petition proceeds to be heard.

Citation
RE SINO AMERICAN TELECOM INC.
Parties
Petitioner: Petitioner; Company: Sino American Telecom Inc.; Opposing Contributory: Mr. Allan Yuen; Opposing Creditor: Mr. Andrew Chan
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 October 1999
Case Number
HCCW329/1998
Procedural Posture
Companies (winding Up) Proceedings / Preliminary Ruling on Procedural Challenge Prior to Hearing of Winding‑up Petition
Outcome
Court directed that opposing contributory (Mr Allan Yuen) who alleges abuse of process must present his case before the hearing; if he establishes abuse the petition will not be heard; if he fails the petition will proceed and the court will then consider who should begin.
Legal Topics
Winding Up, Insolvency, Abuse of Process, Striking Out Petition, Burden of Proof, Cross‑examination
Source Language
EN
Company Law Insolvency Civil Procedure Winding Up Abuse of Process Striking Out Petition Burden of Proof Cross‑examination

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Parties

Petitioner

Petitioner

Sino American Telecom Inc.

Company

Mr. Allan Yuen

Opposing Contributory

Mr. Andrew Chan

Opposing Creditor

Procedural Posture

Companies (winding Up) Proceedings / Preliminary Ruling on Procedural Challenge Prior to Hearing of Winding‑up Petition

Legal Issues

  1. 1 Whether the winding‑up petition should be struck out as an abuse of process
  2. 2 Who bears the burden to begin at the hearing
  3. 3 Whether an opposing contributory must present an abuse‑of‑process case before the hearing

Ratio Decidendi

Where an opposing contributory alleges that a winding‑up petition is presented for an improper purpose and is an abuse of process, that party must promptly present and prove the abuse‑of‑process case before the hearing of the petition; failure to do so risks dismissal for delay and, if the allegation fails, the petition proceeds to be heard.

Court Disposition

Court directed that opposing contributory (Mr Allan Yuen) who alleges abuse of process must present his case before the hearing; if he establishes abuse the petition will not be heard; if he fails the petition will proceed and the court will then consider who should begin.

Orders

  • Opposing contributory Mr Allan Yuen is to present his abuse‑of‑process case before the hearing of the petition
  • If Mr Yuen succeeds the petition will be dismissed as an abuse of process; if he fails the petition will proceed to hearing and the court will then determine commencement of evidence