XCHRX PINEMILL CO. LTD. v. LAI HONG SAN AND OTHERS

HCCW 19/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP)

CWU NO. 19 OF 1998

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D E C I S I O N

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1. This is an application by a creditor for the examination of the five Respondents under section 221 of the Companies Ordinance.

2. It is clear that the Court has jurisdiction to make an order under section 221 on a creditor's application. However, since the purpose of an order under section 221 is to assist liquidators in the course of the administration of the winding-up, the Court should and would take serious note of the position and the views of the liquidators of the company.

3. I regret to say that such reports as the liquidators have filed with the Court were pro-forma cursory reports and these liquidators have not seen fit to report to the Court in any detail whatsoever concerning any difficulties they have encountered in the administration of this winding-up.

4. Mr Agnew's affirmation filed on 24 December 1999 takes things only very little further. The Court has not been given any information as to why Mr Agnew says that the answers to the questionnaire would assist in the winding-up, although he also says that further investigation may ensue as a result of answers given.

5. In my view, before the Court can consider whether any order should be made under section 221, the Court should be informed in greater detail of the liquidators' view of the position.

6. In any event, the 2nd to 4th Respondents have offered by way of undertaking to answer the questionnaire by 14 January 2000. The difficulty with the 5th Respondent is that although he has by counsel confirmed today his willingness to provide answers to the questionnaire, he has not given instructions to his solicitors to give an undertaking to provide the answers by that date and he is at the moment incontactable.

7. However, I do not wish to make any order or direction regarding the 5th Respondent in relation to a section 221 application in the absence of any full exposition of the liquidators' position because, in my view, the analysis must start with the liquidators' attitude to the company affairs.

8. Therefore, the order I propose to make is that on the undertaking of the 2nd to 4th Respondent by their respective counsel to provide answers to the questionnaire served on them on 8 December 1999 by 14 January 2000, I direct that the liquidators do file with Court a further report by 28 January 2000, and the present summons be adjourned to a date to be fixed with half a day tentatively fixed. The solicitors for the 5th Respondent do report to Court by close of business on 4 January 2000 with an indication whether they would be prepared and able to give a similar undertaking on behalf of the 5th Respondent and if no undertaking is given, then any party is to be at liberty to restore the hearing, on giving one day's notice with half an hour estimated.