RE SANMENXIA TIANYUAN ALUMINUM CO LTD

HCCW 122/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO 122 OF 2012

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D E C I S I O N S

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1.  The Petitioner and the Respondent in the present Petition have settled the Petitioner’s claim and agreed that the Petition should be dismissed. When the Petition came on before me on 12 November 2012 a supporting creditor, Fujian Quanzhou Wanguo Development Company Limited, applied to be substituted pursuant to Rule 33 of the Companies (Winding-Up) Rules. I granted the order despite the opposition of the Petitioner and the Respondent. The Petitioner’s opposition seemed to be motivated largely by self-interest although Mr Abraham Chan, who appeared for the Petitioner, was not able to explain to me precisely what this was.

2.  Much of the opposition focused on the fact that the supporting creditor issued a winding-up petition and it was suggested that it would be a waste of costs to order substitution and the supporting creditor should be left to pursue its own petition.  However, as that petition has not yet been advertised and the supporting creditor has undertaken to withdraw its petition and pay the Company’s costs up to the time of the application to do so, it seems to me that the objection falls away.

3.  The Respondent also argued that the supporting creditor does not have locus to present the Petition.  The argument turns on the wording of Rule 33, which provides that the Court may “substitute as petitioner any creditor …. who in the opinion of the Court would have a right to present a petition ….”. Mr Brian Wong, who appeared for the Respondent, submitted that as the supporting creditor has already presented a petition it did not have a present right to do so and, therefore, does not satisfy the Rule.  I disagree.  The reference in the Rule to a “right to present a petition” must in my view refer simply to a right in respect of a debt which makes the applicant a present, contingent or prospective creditor within the meaning of section 179 of the Companies Ordinance.  The supporting creditor satisfies this criteria.  The fact that it has already presented a petition is relevant to whether or not the Court should in this particular case order substitution, but as the supporting creditor is prepared to undertake to withdraw the existing petition it does not in my view constitute a bar to substitution being ordered.