CHINA PROPERTIES GROUP LIMITED v. JIC TRUST CO., LTD

FAMV No. 111 of 2025

[2026] HKCFA 21

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 111 OF 2025 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 197 OF 2023)

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DETERMINATION

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The Appeal Committee:

1.  Leave to appeal is sought in respect of the Questions and “or otherwise” grounds set out in the Annex to this Determination.

2.  We grant leave confined to Question 1(1) reformulated to remove the contentious matters it originally contained, as follows:

Whether the Court has jurisdiction to grant or uphold a winding‑up order in circumstances where the petitioner has assigned the debt to a third party in the Mainland without notice to the debtor even though the company did not challenge the locus standi of the petitioner at the time when the winding‑up proceedings were commenced and/or when the winding‑up order was made?

3.  We appreciate the need for this matter to be dealt with promptly.  The appeal will accordingly be listed for hearing on 11 September 2026.

ANNEX

Question 1

(1)     Whether the Court has jurisdiction to grant or uphold a winding‑up order in circumstances where it is not disputed or indisputable that the petitioner, having assigned the debt to a third party, has ceased to be a creditor of the company for the purpose of sections 177(1)(d) and 178 of the Companies (Windingup and Miscellaneous Provisions) Ordinance (Cap. 32) (‘CWUMPO’) (even though the company did not challenge the locus standi of the petitioner at the time when the winding-up proceedings were commenced and/or when the winding-up order was made)?

(2)     In any event, when it becomes aware that that the petitioner has ceased to be a creditor of the company, should the Court proceed to investigate whether the petitioner has the requisite locus standi to commence or maintain the winding-up proceedings, regardless of whether an application by the company for leave to adduce fresh evidence should be allowed (since the question of locus standi goes to the jurisdiction of the Court to make a winding-up order under section 177(1)(d) of CWUMPO, or at least gives rise to bona fide dispute)?

Question 2

(1)     In view of the approach expounded in Anan Group (Singapore) Pte Ltd v VTB Bank [2019] SGCA 41 (especially §§34, 35, 46 and 55‑59), whether the requirements contained in Ladd v Marshall [1954] 1 WLR 1489 (‘L v MTest’) should be relaxed by the Hong Kong courts in the context of winding-up proceedings; and if so, how and to what extent?

(2)     In any event, when considering the second limb of the L v M Test (i.e. the evidence, if believed, would or might have an important influence on the result of the case, though it need not be decisive), is the court entitled to take into account matters extrinsic to the evidence sought to be adduced (especially when the same is not in dispute) (cf: CA Judgment §21)?

Question 3

Regardless of the answers to Questions 1 and/or 2 above and in any event:

(1)     Whether undisputed or indisputable evidence showing that the petitioner has ceased to be a creditor and thus has no locus standi to commence or maintain any winding‑up proceedings should be admitted even if the L v M Test cannot be satisfied, since a refusal to admit such evidence (which goes to the Court’s jurisdiction to make a winding‑up order):

(a)     would affront common sense or a sense of justice (see, e.g.: Mulholland v Mitchell [1971] AC 666, at 680A; and Solicitor (529/2018) v Law Society of Hong Kong (No. 2) [2021] 5 HKLRD 445, at §§ 19‑21 & 24)? and/or

(b)     would be inconsistent with the underlying objectives set out in Order 1A of the Rules of the High Court (Cap. 4A) (see, e.g.: Evans v Tiger Investments Ltd [2002] 2 BCLC 185, at §§23 & 44)?

(2)     Whether the Court should decline to grant or uphold a winding‑up order on the ground that it would be contrary to the public policy of Hong Kong in circumstances where:

(a)     when the debt relied on is based on a consent judgment entered into by a foreign court, the granting or upholding of a winding‑up order on the basis of such a debt/or the consent order would have the same effect as recognizing or enforcing the foreign judgment;

(b)     in the premises, public policy considerations applicable in the context of recognition and/or enforcement of foreign judgments become relevant (whether by parity of reasons or otherwise); and

(c)     in the further premises, it would be contrary to fundamental notions of justice to uphold the WU Order, bearing in mind (as outlined above): (i) the Petitioner does not deny the Assignment and deliberately chose not to serve notice of assignment on the Company (Judgment §8).

The Company further relies on the ‘Or otherwise limb’ as follows:

Further or alternatively, irrespective of the CFA’s views on Questions 1 to 3 as set out above and in any event, leave should be granted to the Company to appeal to the CFA under the ‘or otherwise’ limb under section 22(1)(b) of the HKCFAO bearing in mind, among others:

(1)      It is not and cannot be disputed that: a) the Petitioner had assigned the Alleged Debt to the Third Party (whose identity remains undisclosed) prior to the WU Order, b) the Petitioner had deliberately chosen not to give notice of the Assignment to the Company before the WU Order was made, c) the learned Judge hearing the Petition did not consider the effect of the Assignment (i.e. lack of locus standi on the part of the Petitioner) before granting the WU Order, and d) the CA did not really address the question of jurisdiction (when it should have adopted a more proactive approach).

(2)      In these exceptional circumstances, grave injustice arose when the CA refused to admit the fresh evidence regarding the Assignment, and consequently failed to consider or find that: a) the Petitioner has no locus standi to see a winding‑up order; and/or b) there were bona fide disputes as to the petitioning debt and/or c) public policy considerations are against the granting or continuation of the WU Order.

(3)     Given the undisputed evidence of the Assignment in favour of the Third Party, there would be serious risks of complications and/or inconsistent claims between the Petitioner and the Third Party (which would in turn have adverse impacts on the general body of creditors as well as the orderly conduct of the winding-up proceedings).  Viewed thus, the most desirable as well as fair and just way to proceed forward would be set aside the WU Order.