RE L & D ASSOCIATES LTD. (Number 189471)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

COMPANIES WINDING-UP NO. 534 OF 1996

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D E C I S I O N

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1. This is an application for a stay of the winding up pending appeal.

2. The company in question was wound up by order of the Master on the 30th of October 1996. The issue which is said to arise on the appeal is whether the Master had jurisdiction. It is contested on behalf of the Appellant that he had no jurisdiction because it was a contested petition. On behalf of the Respondents (the Petitioners in the winding-up) it is pointed out that the Notice to Appear was on behalf of the joint receivers and managers and although it may be worded on "behalf of the company" there is a contest as to the capacity of the joint receivers to represent the company. In those circumstances, I wish to say no more about the merits of the appeal because that is a matter of the Court of Appeal and not for myself.

3. I have before me, therefore, an application for a stay of the winding up pending appeal. In my view the practice is very clear. Such a stay should not be granted by the court at first instance, which I regard myself; if at all, it should be granted by the Court of Appeal but on the authorities it appears that it should not. As Cons J.A. said in the case of Bank Negara Indonisia 1946 v. Interasian Traders Finance Limited [1980] HKLR 622 at 624:-

"The machinery of winding up gives ample reasons for the English practice which is never to grant a stay pending appeal: in re. A&BC Chewing Gum Limited A company is not without some protection I understand that advertisement of the order may be restricted. And a company may bring an appeal within a very short space of time."

4. The time scale of this matter does not encourage me to have sympathy for the Appellants. The order as I have said was made on the 30th October 1996. On the 7th November I was asked to and did appoint special managers. It was not until the 25th November that the Appellant saw fit to file a Notice of Appeal. Since then, as I understand, two further things have happened. First of all, the Notice of Appeal has been amended, or there is a draft amendment. Secondly, it would appear that the appeal was not set down within time. That according to the practice of the Court of Appeal is likely to cause the appeal to be struck out in any event.

5. On top of that as I indicated to the parties I have on file a report from the Official Receiver which is headed "Preliminary Report" and is dated the 2nd January. It says in paragraph 2 "No statement of affairs has been submitted to the Official Receiver pursuant to Section 190 of the Company Ordinance to date. The company's assets as estimated in an unsigned statement of affairs prepared in the name of Gold Konic Limited which was one of the corporate directors are at $4,268,584.00, (c) the company's liabilities are returned in the same statement of affairs at $91,512,670.00."

6. In the circumstances, I have no alternative but to refuse this application.