In re Skytruck International Ltd.

HCCW 794/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP NO.794 OF 1998

------------

------------

------------------------

J U D G M E N T

------------------------

1. This is a petition by Chan To Ching ("the Petitioner") to wind up Skytruck International Limited ("the Company"). The Company is indebted to the Petitioner in the sum of a little over HK$80,000, but there are 19 other employees to whom the Company owes in the aggregate approximately HK$1.246 million at the date of the petition, 4 November 1998.

2. The Company opposes the winding-up petition on the basis that it obtained summary judgment in the sum of approximately HK$5.5 million with interests and costs under an Order 14 application before Barnett J. However, a stay of execution pending the appeal to the Court of Appeal was granted by Barnett J on 21 September. Accordingly, the Company is unable to proceed with the execution of the judgment which, of course, would greatly exceed the amount that is owing to the Petitioner and the other employees of the Company if the Company were to be successful on the appeal.

3. It is clear from the affirmation of Wong Wing Kwong filed on behalf of the Company that the Company is unable to meet its debts as they fall due. It is anticipated that the appeal will be heard in March. Clearly the court ought not grant an adjournment of that length given that there is no certainty that the Company would succeed on the appeal and the Petitioner and the other employees would be seriously prejudiced because the Insolvency Fund Board is withholding payment pending the resolution of this petition.

4. Mr Luk, counsel for the Company, sought an adjournment of 14 days within which to file further evidence regarding the financial position of Mr Lau who is the appellant in the High Court Proceedings and against whom judgment has been obtained. I do not myself see how that evidence can assist in the present case if, as I have indicated, it would not be a proper exercise of the court's discretion to postpone the winding-up pending the determination of the appeal from the Order of Barnett J.

5. It is regrettable that the Company has been put in this position by Mr Lau. It could have appealed against the stay of execution granted on 21 September given the impact on the Company, but it did not. In all the circumstances, it would not be a proper exercise of my discretion not to make the winding-up order sought given the clear prejudice to the Petitioner and the other employees in this case. I, therefore, make a winding-up order with costs to the Petitioner.