RE PO SUN CONSTRUCTION & ENGINEERING LTD.

HCCW 246/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO. 246 of 1999

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D E C I S I O N

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1. The petition has been issued by a sub-contractor of the Company which is the main contractor of a building project. The petition is based on interim certificates which have been issued in favour of the Petitioner. On 9th November 1999, the petition was heard and it was also heard on 10th November 1999.

2. The Company's case in opposition to the petition is, firstly that the interim certificates were not debts as such. Secondly, that it is entitled to a set off because of various delays in the building works on the part of the Petitioner. Thirdly, that it is entitled to a set off because of the Petitioner's occupation of one of the sites for a period when it was supposed to have been let. And fourthly, that it is entitled to a set off on the basis of an indemnity against a claim made by the owner against the Company which was due to the occupation of the site by the Petitioner which has itself been the subject of a decision by Mr. Justice Findlay.

3. Of course, if there is a valid set off, that would mean that the debts are disputed. There were no opposing or supporting creditors and there are still no opposing or supporting creditors. There is no public element involved. On 10th November judgment was reserved. On 29th November 1999, a Consent Summons was issued by the parties. The first order sought is that the petition be withdrawn, however, I think it is more appropriate that the petition be dismissed and I would also grant an order in terms of paragraphs 2 and 3 of the summons.