RE BAKED REPULSE LTD

HCCW 275/2026

[2026] HKCFI 3873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO 275 OF 2026

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REASONS FOR DECISION

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1.  By Summons issued on 15 June 2026 the petitioner, Gold Shine Investment Limited (“Petitioner”), applies under s.183 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32”) (“CWUMPO”) for leave to proceed with execution of a Writ of Possession filed on 4 May 2026 in LDPE 266/2026.  After hearing submissions made on behalf of the Petitioner, I dismissed the Summons. These are the reasons for my decision.

2.  The Petitioner is the registered owner of a property at No. 28 Beach Road, Hong Kong, which is a shopping arcade located at Repulse Bay known as “The Pulse”.

3.  By a lease agreement dated 5 November 2024 (“Lease Agreement”), the Petitioner agreed to let Shop No. 113 on Level 1 of The Pulse (“Property”) to Baked Repulse Limited (“Company”) for a fixed term of 6 years commencing on 5 June 2024 at the base rent of HK$90,000 per month for the first year and HK$95,000 per month for the second year, which is payable in advance on the first day of each calendar month and is exclusive of management fee, air-conditioning charges, promotional charges, government rates and all other outgoings.  If the monthly turnover of the Company exceeds HK$1 million, it shall pay a turnover rent at 10% of the turnover.   

4.  Pursuant to the Lease Agreement, the Company took possession of the Property and operated a restaurant and a bar there until it moved out of the Property in March 2026.

5.  The Petitioner says that the Company has since 1 December 2025 failed to pay the rent payable under the Lease Agreement.  On 4 March 2026, the Petitioner commenced proceedings at the Lands Tribunal against the Company under LDPE 266/2026 claiming the outstanding rent and an order for vacant possession of the Property.

6.  The Company did not enter appearance in the proceedings.  On 17 April 2026, the Petitioner obtained a final judgment whereby the Company was ordered to (1) deliver vacant possession of the Property to the Petitioner, (2) pay arrears of rent or mesne profits at HK$95,000 per month from 1 December 2025 until delivery of vacant possession, (3) other unpaid fees and charges specified in the judgment, and (4) costs.

7.  On 24 April 2026, the Petitioner issued an application at the Lands Tribunal for leave to issue a writ of possession which was granted.  On 4 May 2026, the Petitioner issued a Writ of Possession which was addressed to the Bailiff of the Lands Tribunal requiring him to enter the Property and cause the Petitioner to have possession of the Property.

8.  It is not clear, and the Petitioner has not explained why, it was necessary for the Bailiff to be involved in order to take possession of the Property, given that in the affirmation filed in support of the Summons, the Petitioner said that the Company had already moved out of the Property in March 2026. When this Court raised the matter with Mr Luk, solicitor for the Petitioner, he confirms that the Company has already moved out of the Property but the Petitioner wants more “certainty” and considers that it is necessary to involve the Bailiff.  It is difficult to see why the Petitioner could not take possession of the Property when the Company neither occupied the Property nor resisted the Petitioner taking possession of the Property.

9.  In the meantime, on 15 April 2026, the Petitioner presented a winding up petition against the Company in these proceedings, which is scheduled to be heard before a Master on 8 July 2026.

10.  The Petitioner says that it has been advised that “pursuant to s.183 of CWUMPO, if the Company is eventually wound up by the Court, any execution in force against the estate or effects of the Company after the commencement of the winding-up shall be void”.  The Petitioner was also informed by a letter dated 13 May 2026 issued by the Bailiff Office that it had “suspended action on the Writ of Possession”.

11.  I note that in the letter issued by the Bailiff Office entitled “Action No. LDPE 266/2026”, it stated that “our record shows that one or more company winding-up petitions have been presented against the judgment debtor in this action”, after reciting s.183 of CWUMPO, it asked the Petitioner to check with the Official Receiver’s Office “so as to confirm whether or not the companies winding-up petitions against the judgment debtor in this action are still in force.  Meanwhile we shall suspend actions in this case.”

12.  This was followed by the Petitioner issuing the Summons to ask for leave to proceed with execution of the Writ of Possession.

13.  In response to the Petitioner’s request to confirm whether they have any objection to the Summons, in their letters dated 2 and 10 June 2026, the supporting creditor and the Official Receiver both confirmed that they have no objection to the Summons, on the basis that the Petitioner “would only recover possession of the [Property]” and “the Writ of Possession does not affect any property of the Company”.

14.  In my view, the application is based on a mis-understanding of the effect of s.183 of CWUMPO and is wholly unnecessary.  

15.  Section 183 of CWUMPO provides:

“Avoidance of attachments, etc.

Where any company is being wound up by the court, any attachment, sequestration, distress, or execution put in force against the estate or effects of the company after the commencement of the winding up shall be void to all intents.

16.  As is clear from the wordings of s.183, it only affects “the estate or effects of the company”.  It has no application over any assets which do not belong to the company.  Even if there is any doubt on the application of s.183 (I do not think there is), it is sufficient to read Butterworths Hong Kong Company Law (Winding Up and Miscellaneous Provisions) Handbook, 6^th ed., §183.02 where it states that “This section avoids any execution, etc put into force against the company’s assets after the commencement of the winding-up” (underlined added).

17.  The suggestion that once a winding-up petition is presented against a company, it would have the effect of avoiding any attachment or execution over any assets owned by a third party (such as a landlord which has leased its property to the use of a company) is wholly without basis and only falls to be rejected.

18.  In the present case, there is no suggestion (still less evidence) that the Company holds any rights or interests in the Property.  I am unable to see any basis to suggest that s.183 of CWUMPO applies to the Property or that there is any reason (none has been articulated) as to why the Petitioner should be required to apply for leave under s.183 before it can take possession of the Property.