FU HAY KIN v. BELLS CONSTRUCTIONS (ASIA) LTD AND ANOTHER

HCMP 163/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 163 OF 2003

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R U L I N G

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1. This is an urgent application for an interim injunction to restrain the creditor's voluntary winding up. The Creditor's Voluntary Winding Up had actually commenced in 17 Jan 2003. In the alternative the application is for a temporary stay of the Creditor's Voluntary Winding Up.

2. I will direct that the applicant to make his application by inter parte summons.

3. It is trite law that the Court will not normally grant any order against a party who is not given an opportunity to be heard. In this case the applicant asked the Court to make an order ex parte against the 1st respondent restraining the 1st respondent from continuing with its winding up process or in effect staying the winding up process. It is not contended before me that if an inter parte application were made, then the respondent would be in a position to do anything which would frustrate the purpose of the application, nor had it been contended that if this application is to be dealt with by way of an inter parte summons returnable on the coming Friday or even the summons day next week, the company is in a position to do such thing as would frustrate the purpose of the application.

4. In the circumstances, I am not prepared to entertain the ex parte application.

5. I would only add that I think it is highly arguable that the winding up of a company would not affect the several liability of any person under section 168O and hence the whole basis of the applicant's fear and his justification for the application for the interlocutory relief may not be a sound one. However in the absence any thorough argument I would not like to make any ruling on this point.