HO MAN KIT JOHN v. FUNG CHU KWONG AND OTHERS

HO MAN KIT JOHN v. FUNG CHU KWONG AND OTHERS

Because s228A is to be applied strictly and an ordinary members’ resolution was reasonably practicable in the circumstances, the director’s use of s228A was improper; the resolution of 5 August 2013 was defective, the liquidation was wrongly commenced and must be stayed.

Citation
HO MAN KIT JOHN v. FUNG CHU KWONG AND OTHERS
Parties
Petitioner: HO MAN KIT JOHN; 1st Respondent: FUNG CHU KWONG; 2nd Respondent: HYDROGEN EVOLUTION INCORPORATED; 3rd Respondent: PEDAGOGIC INNOVATIONS LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 November 2013
Case Number
HCCW107/2012
Procedural Posture
Companies (winding Up) Proceedings Under Companies Ordinance (sections 168 a and 177(1)(f)) / Chambers Application to Stay a Voluntary Winding Up; Judgment on Stay (decision Given)
Outcome
Winding up commenced on 5 August 2013 was stayed.
Legal Topics
Winding Up, Director Powers Under S228 a, Unfair Prejudice (s177), Derivative Action (s168 A), Stay of Proceedings
Source Language
EN
Company Law Insolvency Law Civil Procedure Winding Up Director Powers Under S228 a Unfair Prejudice (s177) Derivative Action (s168 A) Stay of Proceedings

Case Brief

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Parties

HO MAN KIT JOHN

Petitioner

FUNG CHU KWONG

1st Respondent

HYDROGEN EVOLUTION INCORPORATED

2nd Respondent

PEDAGOGIC INNOVATIONS LIMITED

3rd Respondent

Procedural Posture

Companies (winding Up) Proceedings Under Companies Ordinance (sections 168 a and 177(1)(f)) / Chambers Application to Stay a Voluntary Winding Up; Judgment on Stay (decision Given)

Legal Issues

  1. 1 Whether s228A was properly invoked by the sole director to commence a voluntary winding up
  2. 2 Whether s228A was misused to avoid trial of the petitioner’s complaints and to stifle proceedings
  3. 3 Whether the winding up commenced on 5 August 2013 was wrongly commenced and should be stayed

Ratio Decidendi

Because s228A is to be applied strictly and an ordinary members’ resolution was reasonably practicable in the circumstances, the director’s use of s228A was improper; the resolution of 5 August 2013 was defective, the liquidation was wrongly commenced and must be stayed.

Court Disposition

Winding up commenced on 5 August 2013 was stayed.

Orders

  • Stay the winding up of Pedagogic Innovations Limited commenced on 5 August 2013; declaration that the resolution passed on 5 August 2013 was defective