RE ORIENTAL KINGDOM RESTAURANT HOLDING LTD

HCCW 395/2020

[2021] HKCFI 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO 395 OF 2020

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DECISION

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1.  By a notice of motion dated 1 March 2021, the Director of Legal Aid (“the LA Director”) acting for and on behalf of the petitioner seeks the following order:

(1)  the petition herein be dismissed with no order as to costs;

(2)  the petitioner’s own costs be taxed in accordance with the Legal Aid Regulations; and

(3)  the Official Receiver’s costs agreed at HK$4,100 be borne by the petitioner and be deducted from the deposit paid to the Official Receiver’s Office (“the Deposit”).

2.  On 9 March 2021, I directed that the application be determined on paper without an oral hearing.  On 11 March 2021, the LA Director has provided me the written submissions in support of the application.

3.  The facts are simple and straightforward.  The petitioner was granted legal aid to issue a winding up petition against Oriental Kingdom Restaurant Holding Limited (“the Company”).  The petition was filed on 23 November 2020 and served.  On 22 January 2021, the petition was advertised and gazetted.  On 26 January 2021, the petitioner received ex-gratia payment in the sum of HK$21,647.09 from the Protection of Wages on Insolvency Fund Board (“the Board”) pursuant to section 16 of the Protection of Wages on Insolvency Ordinance (“the Ordinance”).

4.  Section 24(1) of the Ordinance provides: -

“(1) Where a payment is made under section 16 to an applicant in respect of wages due to him, or in respect of liability to pay him a severance payment, whether or not the severance payment is due when that payment under section 16 is made, all his rights and remedies with respect to those wages or severance payment, as the case may be, existing immediately before that payment under 16 shall, to the extent of the amount of that payment under section 16, be transferred to and vest in the Board for the benefit of the Fund and the Board may take such steps as it considers necessary to enforce those rights and remedies.”

5.  Since the Board has made payment to the petitioner, it steps into the shoes of the petitioner to the extent of the payment against the Company.  The petitioner’s rights of claim are now transferred to and vests in the Board.

6.  The petitioner no longer wants to pursue these proceedings. The Board has been invited but it has indicated that it would not take over the petition to substitute the petitioner.

7.  The notice of motion and the supporting affirmation have been duly served on the Company and its shareholder and director.

8.  The Official Receiver has no objection to the dismissal of the petition and the Official Receiver’s costs are agreed at HK$4,100.  That sum will be paid out of the Deposit.

9.  In view of all the above, I am of the view that the application made by the LA Director should be allowed.  I allow the application.  There be an order in terms of the notice of motion.

10.  I thank the LA Director for the assistance rendered to the court.