RE BOLDWIN CONSTRUCTION CO LTD

RE BOLDWIN CONSTRUCTION CO LTD

The court held that provisional liquidators, under the express powers in the Appointment Order (paras 2(9) and 2(10)), may exercise shareholders' rights in BF to (a) fix their remuneration on a Panel A time-cost basis to be paid from BF's assets and (b) obtain an indemnity from BF, provided the indemnity is limited to actions in relation to BF and the resolutions cease to apply if a petition to wind up BF is presented; the Shareholders' Resolutions of 6 November 2002 fall within the provisional liquidators' powers; the provisional liquidators are also authorized to present a petition to wind up BF and to apply for their appointment as provisional liquidators of BF (subject to judicial...

Citation
RE BOLDWIN CONSTRUCTION CO LTD
Parties
Company Subject to Winding Up (hccw 345/2002): Maintain Profits Limited; Company Subject to Winding Up (hccw 346/2002): Myriad Gold Corporation; Subsidiary and Sole Material Asset of the Parent Companies: B F Construction Company Limited; Petitioner / Contributory / Creditor: Madam Law Wai Duen Nina; Opposing Contributory / Respondent: Mr Chan Shiu Chick; Joint and Several Provisional Liquidator: Mr Charles Chan Wai Dune; Joint and Several Provisional Liquidator: Mr James Wardell
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 August 2003
Case Number
HCCW340/2002
Procedural Posture
Companies (winding Up) / Interlocutory Summons for Directions Following Appointment of Provisional Liquidators
Outcome
Interlocutory orders granted in part: remuneration basis changed; shareholders' resolutions validated as within provisional liquidators' powers with conditions; power granted to petition to wind up BF; related costs directions made.
Legal Topics
Winding Up, Provisional Liquidators, Remuneration of Officeholders, Shareholders' Resolutions, Indemnity, Powers of Shareholders Vs Directors, Bank Account Control
Source Language
EN
Company Law Insolvency Corporate Governance Civil Procedure Winding Up Provisional Liquidators Remuneration of Officeholders Shareholders' Resolutions +3 more

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Parties

Maintain Profits Limited

Company Subject to Winding Up (hccw 345/2002)

Myriad Gold Corporation

Company Subject to Winding Up (hccw 346/2002)

B F Construction Company Limited

Subsidiary and Sole Material Asset of the Parent Companies

Madam Law Wai Duen Nina

Petitioner / Contributory / Creditor

Mr Chan Shiu Chick

Opposing Contributory / Respondent

Mr Charles Chan Wai Dune

Joint and Several Provisional Liquidator

Mr James Wardell

Joint and Several Provisional Liquidator

Procedural Posture

Companies (winding Up) / Interlocutory Summons for Directions Following Appointment of Provisional Liquidators

Legal Issues

  1. 1 Whether provisional liquidators' remuneration may be charged to the assets of a related non-liquidated company (BF) by shareholders' resolution
  2. 2 Whether provisional liquidators may obtain an indemnity from BF for actions taken in relation to BF
  3. 3 Whether the Shareholders' Resolutions passed by the provisional liquidators fall within their powers under the Appointment Order

Ratio Decidendi

The court held that provisional liquidators, under the express powers in the Appointment Order (paras 2(9) and 2(10)), may exercise shareholders' rights in BF to (a) fix their remuneration on a Panel A time-cost basis to be paid from BF's assets and (b) obtain an indemnity from BF, provided the indemnity is limited to actions in relation to BF and the resolutions cease to apply if a petition to wind up BF is presented; the Shareholders' Resolutions of 6 November 2002 fall within the provisional liquidators' powers; the provisional liquidators are also authorized to present a petition to wind up BF and to apply for their appointment as provisional liquidators of BF (subject to judicial...

Court Disposition

Interlocutory orders granted in part: remuneration basis changed; shareholders' resolutions validated as within provisional liquidators' powers with conditions; power granted to petition to wind up BF; related costs directions made.

Orders

  • Remuneration of the provisional liquidators to be charged on a time-cost basis at the standard Panel A scale agreed between the Official Receiver and the Hong Kong Society of Accountants and paid out of the assets of Maintain Profits or Myriad Gold as appropriate (para (1) of summons)
  • Provisional liquidators may exercise powers of Maintain Profits and Myriad Gold as shareholders of BF by shareholders' resolution to cause BF to indemnify the provisional liquidators and to provide for their remuneration to be charged to and paid out of BF's assets provided that (a) such resolutions cease to apply...