RE BEST TARGET ENTERPRISES LTD

HCCW 293/2020

[2020] HKCFI 2883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO 293 OF 2020

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D E C I S I O N

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1.  The applicant, Ho Chuck Restaurant Ltd, is the owner and the landlord of the premises at Shop Nos 43 (portion), 44-48, G/F, Ho Chuck Centre, 2-10 Kwai Yi Road, Kwai Chung. The debtor company (“Company”) was the tenant of the premises under a lease with the applicant dated 26 August 2014, for a 6-year term expiring on 19 September 2020. The Company has since March 2020 failed to pay rent, management fees and rates under the lease.

2.  On 9 July 2020, the applicant commenced proceedings against the Company in the Lands Tribunal.  On 25 August 2020, the Lands Tribunal entered judgment against the Company ordering it to deliver up vacant possession of the premises and to pay arrears of rent, mesne profits, management fees and rates.

3.  On 11 September 2020, pursuant to the judgment, the applicant issued an application in the Lands Tribunal for leave to issue a Writ of Possession and Fieri Facias Combined.  On the same date, the applicant also presented a winding-up petition in the High Court against the Company. Leave to issue a Writ of Possession and Fieri Facias Combined was granted by the Lands Tribunal and a writ was accordingly filed on 14 October 2020.  Meanwhile, the Company had moved out on or about 12 October 2020, leaving some goods and chattels in the premises.

4.  The applicant now seeks leave under section 183 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32) to proceed with execution of the judgment it has obtained.  The Company has not appeared or filed any evidence to oppose the application.  The Official Receiver has indicated that she has no objection to the application on the basis that the writ of possession does not affect any property of the Company and execution by way of writ of fieri facias is unobjectionable provided the proceeds of sale of the chattels are transferred to the liquidators of the Company if a winding up order is eventually made against it.

5.  While execution of the writ of possession seems to me to be unnecessary since the Company has vacated the premises, on the basis of the undertaking by the applicant to pay over the proceeds of sale of the chattels left at the premises to the Company’s liquidators if it is wound up on the petition, I am satisfied that the execution of the writ of fieri facias for which leave is sought would not be tantamount to a distraint levied on the tenant’s goods after the commencement of winding-up proceedings against the tenant which would not be permissible: Re Union (V-Tex) Shirts Factory Ltd [1977] HKLR 237.  The applicant here is more concerned with obtaining vacant possession of its own property than getting recompense out of the Company’s goods.  In the circumstances it also seems to me preferable for the chattels to be sold sooner rather than later.  I shall therefore grant the order sought.