LAM CHUN FUNG v. WONG WAI TUNG AND OTHERS

LAM CHUN FUNG v. WONG WAI TUNG AND OTHERS

The prayer for a winding-up order was struck out because the petition failed to set out any adequate reasons why winding up was sought as an alternative, rendering that prayer an abuse; consequences include an order that the Petitioner pay the 1st Respondent’s costs on a common fund basis with a certificate for counsel; sealed validation order costs could not be varied by the court in the circumstances and, separately, the Companies Court has power under section 182 Cap 32 to vary substantive validation orders when justified by changing circumstances.

Citation
[2019] HKCFI 3034
Parties
Petitioner (hccw 150/2018); 1st Defendant (hca 2057/2018): Wong Wai Tung; 1st Respondent (hccw 150/2018); Plaintiff (hca 2057/2018): Lam Chun Fung; 2nd Respondent (hccw 150/2018); 8th Defendant (hca 2057/2018): Meanmax Limited; 2nd Defendant (hca 2057/2018): Chan Yuk Bong; 3rd Defendant (hca 2057/2018): Siu Pui Shan Ivy; 4th Defendant (hca 2057/2018): Wong Kan Foon; 5th Defendant (hca 2057/2018): Chan Kin Ho Zack; 6th Defendant (hca 2057/2018): Yeung Ting Yan; 7th Defendant (hca 2057/2018): Whyhow Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 December 2019
Case Number
HCA2057/2018
Procedural Posture
Companies Winding Up Proceedings and Related Shareholder Action / Interlocutory Applications: Strike Out Summons, Amendment/variation of Validation Orders, Case Management
Outcome
Prayer for winding-up struck out; Petitioner ordered to pay 1st Respondent’s costs on a common fund basis with a certificate for counsel; court declined to amend earlier sealed costs order for validation applications; held Companies Court may vary substantive validation orders under section 182 Cap 32
Legal Topics
Winding Up, Validation Orders Under Section 182 Cap 32, Costs Assessment and Common Fund Costs, Abuse of Process, Just and Equitable/unfair Prejudice Petitions
Source Language
EN
Company Law Civil Procedure Costs Law Winding Up Validation Orders Under Section 182 Cap 32 Costs Assessment and Common Fund Costs Abuse of Process Just and Equitable/unfair Prejudice Petitions

Case Brief

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Parties

Wong Wai Tung

Petitioner (hccw 150/2018); 1st Defendant (hca 2057/2018)

Lam Chun Fung

1st Respondent (hccw 150/2018); Plaintiff (hca 2057/2018)

Meanmax Limited

2nd Respondent (hccw 150/2018); 8th Defendant (hca 2057/2018)

Chan Yuk Bong

2nd Defendant (hca 2057/2018)

Siu Pui Shan Ivy

3rd Defendant (hca 2057/2018)

Wong Kan Foon

4th Defendant (hca 2057/2018)

Chan Kin Ho Zack

5th Defendant (hca 2057/2018)

Yeung Ting Yan

6th Defendant (hca 2057/2018)

Whyhow Limited

7th Defendant (hca 2057/2018)

Procedural Posture

Companies Winding Up Proceedings and Related Shareholder Action / Interlocutory Applications: Strike Out Summons, Amendment/variation of Validation Orders, Case Management

Legal Issues

  1. 1 Whether the prayer for a winding-up order can stand where the petition fails to state why winding up is sought as an alternative
  2. 2 Whether the petitioner’s inclusion of an unreasoned winding-up prayer amounts to abuse of process justifying enhanced costs
  3. 3 Whether the court can vary sealed validation orders or otherwise revisit costs once an order is sealed

Ratio Decidendi

The prayer for a winding-up order was struck out because the petition failed to set out any adequate reasons why winding up was sought as an alternative, rendering that prayer an abuse; consequences include an order that the Petitioner pay the 1st Respondent’s costs on a common fund basis with a certificate for counsel; sealed validation order costs could not be varied by the court in the circumstances and, separately, the Companies Court has power under section 182 Cap 32 to vary substantive validation orders when justified by changing circumstances.

Court Disposition

Prayer for winding-up struck out; Petitioner ordered to pay 1st Respondent’s costs on a common fund basis with a certificate for counsel; court declined to amend earlier sealed costs order for validation applications; held Companies Court may vary substantive validation orders under section 182 Cap 32

Orders

  • Prayer for winding-up struck out
  • Petitioner to pay 1st Respondent's costs on a common fund basis with a certificate for counsel