RE WELIFE TECHNOLOGY LTD

HCCW 63/2025

[2026] HKCFI 1044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMI NISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO 63 OF 2025

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J U D G M E N T

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1.  This is the substantive determination of the winding up petition presented by the Petitioner against Welife Technology Limited (the “Company”)  on 5 February 2025 (“the Petition”)  on the ground that the Company fails to pay a debt in the sum of RMB 9.4 million.

2.  On 4 February 2026, the Company took out a summons (the “Summons”)  to adduce a PRC legal opinion on the enforceability of the Remuneration Agreement (as define below)  in case the same is governed by the PRC laws. I dismiss the Summons on the basis that it was too late.  To be fair, the Petitioner would need time to respond to the said PRC legal opinion.  There is no satisfactory explanation as to why the said PRC legal opinion could not have been adduced earlier.  Ms Lau SC for the Company also fairly agree that the Company does not need to rely on the said PRC legal opinion for the purpose of the present hearing.  In the circumstances, I dismiss the Summons with costs to be paid by the Company to the Petitioner, to be taxed on party to party basis, if the parties cannot reach an agreement on the quantum of the same.

MATERIAL FACTS

3.  The Company, together with its subsidiaries, was a full-service restaurant group in Hong Kong and the PRC offering Cantonese dining and banquet services including wedding banquet services more commonly known as“煌府”.  The Company was formerly known as Palace Banquet Holdings Limited between 7 June 2018 to 21 December 2022.

4.  In about 2023, the board of the Company was chaired by Mr Hu Zhi Xiong (“Mr Hu”).  Mr Tam Ka Wai (“Mr Tam”), one of the then executive directors of the Company, held 51% of the shares of the Company through his wholly owned company Wonderful Cosmos Limited (“WCL”).

5.  Since 30 November 2022, the 51% shares held by WCL had been subject to a share charge in support of a facility agreement to which WCL was a borrower.  WCL defaulted on its obligations under the facility agreement on or about 31 December 2022, and a formal notice was issued to WCL on 4 August 2023 that the share charge had become enforceable.

6.  On 8 August 2023, receivers (“Receivers”)  were appointed in relation to the 51% shares held by WCL, which were then sold on 24 November 2023 to Brilliant Global Assets Limited (“BGAL”), Happy Century Global Limited (“HCGL”)  and Ms Zhong Miaoxian (“Ms Zhong”), who acquired approximately 29.57%, 16.48% and 4.96% of the shares respectively.

7.  After an annual general meeting (“AGM”)  on 25 October 2023, Mr Hu remained as the only non-executive director (“NED”)  and Mr Tam remained as the only executive director (“ED”)  of the Company.

8.  Thereafter, following the validation orders granted by this Court on 5 March 2024 and 9 April 2024 to validate the transfer and registration of the shares held by BGAL, HCGL and Ms Zhong, Mr Tam and Mr Hu resigned as directors of the Company on 17 May 2024.

9.  An extraordinary general meeting (“EGM”)  was convened and held on 22 May 2024 in which resolutions were passed to (i)  remove Mr Hu and Mr Tam as directors of the Company and (ii)  appoint new directors.

10.  The Petitioner’s case is that it has reached an agreement, by way of the Remuneration Agreement (as defined below)  with the Company pursuant to which a fixed sum of RMB9.4 million is presently due to the Petitioner (the “Petition Debt”).

11.  The Petition Debt is said to arise from three agreements between the Company and the Petitioner (“Agreements”), namely

(1)  全面战略合作协议(“Framework Agreement”)  dated 24 June 2022;

(2)  业务发展委托协议 (“Consultancy Agreement”)  dated 8 July 2022; and

(3)  费用结算协议 (“Remuneration Agreement”)  dated 14 July 2023.

12.  The Remuneration Agreement was signed by Mr Tam on behalf of the Company one year after the Consultancy Agreement.  It acknowledges the work done by the Petitioner and states that the Petitioner had incurred expenses up to the sum of RMB 9,400,000 pursuant to the Consultancy Agreement.

13.  The Company challenges the authenticity of the provision of services, which almost immediately became the subject of enquiry from the Stock Exchange of Hong Kong Limited (“SEHK”).

14.  On 18 July 2023, the SEHK issued a letter to the Company to enquire on, inter alia:

(1)  The services to be provided by the Petitioner under the Consultancy Agreement, in particular (i)  whether there is any committed number of brands to be introduced successfully and events to be arranged by the Petitioner and their agreed timeline, if any and (ii)  the nature and amount of expenses expected to be incurred;

(2)  The board’s assessment on the expertise and experience of the Petitioner in providing the above services to the Company; and

(3)  The detailed basis of the consultancy fee and the board’s assessment on whether it is fair and reasonable and in the interest of the Company and its shareholders as a whole.

15.  On 24 July 2023, upon receipt of a complaint, the SEHK issued a further letter to the Company to enquire on, inter alia, the detailed analysis (both quantitative and qualitative)  on the benefit of the Consultancy Agreement and whether and how it is in line with the business strategies of the Company.

16.  On 25 August 2023, following the Company’s submission that the agreed consultancy fees of the Petitioner under the Remuneration Agreement was determined based on the costs incurred by the Petitioner, the SEHK further issued a letter to the Company to make detailed enquiry on, inter alia:

(1)  The sequence of events involving the negotiation of key terms including the services scope and service fee under each of the agreements between the Company and the Petitioner;

(2)  Key terms, including but not limited to the scope, performance guarantee, pricing basis and payment terms for each type of services provided by the Petitioner, and whether each of the expense items is subject to a cap;

(3)  The board’s view on whether and how the pricing basis for each type of the services was fair and reasonable;

(4)  The detailed breakdown for the costs of RMB 9,400,000 incurred and whether such costs had been approved by the Company in advance;

(5)  Whether and how, with quantitative and qualitative analysis, the services provided by the Petitioner were beneficial to the Company; and

(6)  Whether and how the services were in line with the Company’s business strategy.

17.  The SEHK issued two further letters to the Company on 24 October 2023 and 20 November 2023 respectively, inviting for its submissions on the above enquiries, to which the Company had not addressed.

18.  Following the change in directorship in the Company, on 28 June 2024, the Petitioner issued a statutory demand (the “SD”)  for the Petition Debt.

19.  Upon receipt of the SD, the current board of the Company set up an internal investigation committee and made enquiries with various departments and personnel within the Company.  The investigation revealed no board resolutions, documents, invoices, communication and financial record whatsoever within the Company that could possibly support the provision of services by the Petitioner.  The services purportedly acknowledged under the Remuneration Agreement were unheard of by the Company.

20.  Thereafter, the Company also followed up with the SD and the Petition by:

(1)  Issuing letters on 12 July 2024 to nine of its former directors, including Mr Tam and Mr Hu, demanding all of such former directors (i)  to provide the Company with all information, record, data and documents in relation to and/or to address all the enquiries from the SEHK, including the abovesaid enquiries about dealings with the Petitioner, and (ii)  to return or give information about all documents of the Company; none of them replied to the said letters.

(2)  Asking its former directors by way of letter on 28 February 2025 for details, board resolutions and verifying documents in relation to the Petition Debt.

(3)  Asking the Petitioner by way of letter on 12 March 2025 for factual details, tender document or pitching materials, full particulars of the brands introduced and promotional events allegedly held by the Petitioner, supporting documents for the promotional events allegedly held, breakdown on the expenses alleged incurred by the Petitioner, and other supporting documents such as receipts invoices and contracts with third parties.

(4)  Asking the Petitioner by way of letter on 1 April 2025 to the Petitioner for all the invoices in relation to the alleged business development and promotional services as stated in the Petition.

(5)  Reporting to the Hong Kong Police Force and the public security in Shenzhen, the PRC on 14 April 2025 and 9 June 2025 respectively, for the suspected theft of the Company’s seal and documents by the Company’s former directors including Mr Tam.

21.  None of the former directors nor the Petitioner made any reply to the above-mentioned letters.

APPLICABLE LEGAL PRINCIPLES

22.  The applicable legal principles in this area of the law are well established.  In order to successfully oppose a petition on the basis of a bona fide dispute on substantial grounds, the Company has to adduce sufficiently precise factual evidence, which is believable, and must establish that it has a defence of substance.

23.  The key is for the Court to assess whether there are real and substantial disputes of fact which render the summary procedure of a bankruptcy and/or winding up proceedings unsuitable for the determination of such real and substantial disputes of fact.  In such scenario, the validity of petitioning debt would need to be fully investigated in a trial: see Re Cao Zhong [2021] HKCFI 3143 at §90(3).

ANALYSIS AND DETERMINATION

24.  I have considered the parties’ submissions, both written and oral, in detail.  I have come to the view that this Petition has to be dismissed.

25.  First, the Petitioner does not have a liquidated debt claim. Clause 2 of the Remuneration Agreement which grounds the Petition only sets out what costs the Petitioner had incurred.  Clause 3 specifically states that, subject to the approval of the SEHK, the payment method is by way of issuance of new shares to the Petitioner.  The Petitioner does not have a claim for a specific sum of money.  Its claim for specific performance is subject to the approval of the SEHK which was not obtained.

26.  The Petitioner might have a claim in damages.  But that is not what is set out in the SD. The Petitioner does not have a liquidate claim. It cannot sum for a specific sum under the Remuneration Agreement.

27.  Importantly, when regulatory approval was not obtained, the Company made the following public announcement on 17 November 2023:

“The Company is in active discussions with Jasons Holdings with the view to determine and agree on its remuneration under the Business Development Consultancy Agreement, including the amount and the manner upon which Jasons Holdings shall be paid. As at the date of this announcement, no agreement has been reached between the Company and Jasons Holdings. Further announcements will be made by the Company if and when appropriate.” (Emphasis added.)

28.  It does indicate that, arguably, the Remuneration Agreement is gone.  The parties were then renegotiating how the Petitioner’s remuneration should be paid under the Consultancy Agreement, including the amount and the manners, but no agreement had been reached.  In such circumstances, I am of the view, the Company has raised a bona fide defence that the Petitioner can no longer rely on the Remuneration Agreement.

29.  The Petitioner has not affirmed or alleged that after the Remuneration Agreement, the Petitioner and the Company have reached a new agreement to the effect that the Company undertakes to pay the fixed sum of RMB 9.4 million cash to the Petitioner under the Remuneration Agreement or a new agreement.  There is no such agreement.

30.  On this ground alone, I am of the view that the Petition should be dismissed.

31.  Secondly, I am in agreement with Ms Lau SC for the Company that although in the Company’s public announcement dated 14 July 2023, the Company has agreed and acknowledged that the Petitioner had performed its contractual obligations under the Remuneration Agreement, the SEHK has raised legitimate questions in the series of correspondences, first dated 18 July 2023, just 4 days after the 14 July 2023 public announcement.

32.  The SEHK followed by its letters dated 24 July 2023, 25 August 2023 and 24 October 2023 to question the business rationales and justifications for the engagement of the Petitioner.  The questions raised by the SEHK were not adequately addressed.

33.  The Company’s case is that Mr Tam and the Petitioner were acting in collusion or conspiracy with the intent to cause harm to the Company by signing the Remuneration Agreement.

34.  I do not find it necessary to determine this issue at this stage. It suffices for the present purpose to state that I am of the view that the issue of whether the engagement of the Petitioner was in the best interests of the Company and whether the Petitioner had notice, actual or constructive, of Mr Tam’s breaches of his fiduciary duties to the Company is a matter that cannot be determined summarily.  I am satisfied that the Company has raised bona fide defences which need to be investigated in a full trial.

35.  Thirdly, I am persuaded that the fact that the Petitioner is not able to adduce evidence to prove that it had performed the services as set out in the Remuneration Agreement is a material factor in convincing this Court that the probity of the alleged services rendered pursuant to the Consultancy Agreement and the Remuneration Agreement need to be fully investigated.

36.  Mr Mak for the Petitioner fairly accepted that whilst there are some contemporaneous documents which tend to show that some services were provided, but the documents do not, on their own, prove that services were provided to the Company and costs were incurred to the level of RMB 9.4 million.  Mr Mak referred this Court to some receipts, but they do not specifically relate to the Company.

37.  In the normal course of events, one expects that the Petitioner, as services provider, will be able to produce invoices for the services rendered together with evidence and/or supporting documents of disbursements.  Such documents were conspicuously missing.

38.  I also accept that, pursuant to the Remuneration Agreement, there should be:

(1)  communication record showing the recommendation of 16 catering brands made by the Petitioner to the Company;

(2)  communication record showing (i)  discussion on the Company’s business need and/or the communication and reporting on the business conferences held by the Petitioner to the Company;

(3)  communication record showing the regularly provided market competition information, business resources information and catering projects information; and

(4)  communication record showing the regularly provided recommendations of catering brands, introduction of latest catering business, technology, information, investment, project development, and information about organisation of brand marketing events.

39.  Mr Mak for the Petitioner referred this Court to the acknowledgment of the services provided in the public announcement dated 14 July 2023.  However, in view of the lack of meaningful responses to the legitimate questions raised by the SEHK, I am of the view that there are substantial and bona fide disputes on whether a total costs of RMB 9.4 million had been incurred and they related to the Company.

40.  I also note that the Remuneration Agreement was meant to reimburse the expenses actually incurred (实报实销)  by the Petitioner.  It is inexplicable as to why the Petitioner could have failed to produce the record of expenses that was aligned with the expenses set out in the Remuneration Agreement.  The Petitioner should have kept the relevant records for a period of, at least, 7 years.

41.  Fourthly, the Company also submitted that Mr Tam did not have the relevant authority to enter into the Remuneration Agreement.  The Company relies on an internal fund control protocol (內部資金控制制度)  (the “Protocol”), pursuant to which non-operating payment to third parties over HK$1,200,000 per year must be approved by the board and size test must be conducted to decide whether it is necessary to convene a members’ general meeting to approve the transaction.

42.  No board resolutions approving the Remuneration Agreement, conducting the size test and/or convening any members’ general meeting could be found.  In other words, Mr Tam was acting without or outside the authority from the Company to enter into the Remuneration Agreement with the Petitioner.

43.  However, at the present stage, there is no concrete evidence to put the Petitioner on inquiry into Mr Tam’s lack of authority.  This is particularly so in view of the public announcements made by the Company.

44.  Finally, although the Company also submitted the Remuneration Agreement is unenforceable under the PRC law, as I dismissed the Summons, there is no evidence to support the same.  A mere allegation is insufficient to raise a bona fide dispute on substantial grounds.

DISPOSITION

45.  For all the reasons stated above, I dismiss the Petition with costs to the Company.

46.  I also make a cost order nisi that there be a certificate for two counsel and the costs are to be taxed on party to party basis if not agreed. This costs order nisi will be made absolute within 14 days from the date hereof unless an application is taken out to vary the same with the said 14-day period.

47.  Finally, it remains for me to thank counsel for their helpful assistance.