CHINESE STRATEGIC HOLDINGS LTD AND ANOTHER v. JAMES WARDELL AND ANOTHER

HCCW 146/2013

[2019] HKCFI 1236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING‑UP PROCEEDINGS NO 146 OF 2013

________________

________________

________________

________________________________

R E A S O N S   F O R   D E C I S I O N

________________________________

The Application 

1.  On 25 February 2019 I granted the Applicants’ summonses for the removal of James Wardell and Lui Chau Yuet as the liquidators of Joy Rich Development Limited (“Company”). There was also before me a summons issued by the liquidators for the committee of inspection (“COI”) to be dissolved, which as a consequence of removal of the liquidators I dismiss.  These are the reasons for my decision.

Legal Principles

2.  It is convenient to start by summarising the principles that apply to removal applications and then deal with the background and facts.

3.  Section 196(1) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Cap 32 (“Ordinance”), gives the court a discretion to remove liquidators “on cause shown”.  As Millet J (as he then was) observed in Re Keypak Homecare Ltd[1], this is not the same as “if the court sees fit”. There is a burden on the applicant to demonstrate a reason why the court should remove a liquidator. The court will not do so readily. The longer a liquidator has been in office and, as a consequence, the greater his familiarity with the affairs of the company and the greater the disruption and cost his replacement will entail, the more compelling the “cause” will normally have to be[2].  Regardless of the length of his appointment at the time the application is made, unless the matter relied on is particularly serious it is likely that more than one event which calls into question a liquidator’s conduct of the liquidation will have to be shown. Judges are alive to the risk that too readily acquiescing to applications will encourage disgruntled creditors to misuse the procedure[3]; and judges are also alive to the damage that may be caused to a liquidators’ reputation by removal by the court[4]. I have taken these considerations into account in the present case, which involves an application to remove liquidators who have been in office for five years. My reason for finding that, notwithstanding these factors, sufficient cause has been shown to justify removing the liquidators turns on the nature of the complaints that I have found proved in the present case. This brings me to the principles that guide the court’s assessment of a liquidator’s conduct.

4.  The court is guided principally by what is in the best interests of those who have an economic interest in the liquidation[5]  In the case of an insolvent liquidation that will be the interests of the creditors. In the case of a solvent liquidation it will be the interests of both the creditors and contributories; the latter being interested in the surplus that will be available for distribution after the company’s debts have been paid and the liquidation expenses met.

5.  The Company is solvent, albeit the position may have been unclear when the liquidators were appointed and before the significant recent rise in property prices.  I also note in passing that the other creditors and the Company’s sole shareholder have been notified of the present application and have chosen not to attend.

6.  Consistent with the approach described in [4], it is unnecessary for an applicant to demonstrate impropriety on the part of liquidators in order to obtain their removal, although, of course,      the probity and fairness of liquidators’ conduct is relevant[6] and most applications involve criticism of it. Assessing whether the criticism is justified involves identifying not only a liquidator’s duties, but also the standard to which a liquidator is to be held.

7.  A liquidator is an officer of the court. As Fok JA (as he then was) observed in his judgment in Re Legend International Resorts Limited [7] as a consequence he is entrusted with the reputation of the court for the impartial and proper dispatch of duties arising from his appointment and in so doing is held to the same standards as a judge[8].

8.  A liquidator is a fiduciary and has a duty to act bona fide in the interests of the liquidation, which primarily means the best interests of those with an economic interest in it.  In the context of liquidators’ remuneration this means that liquidators are entitled to be paid for activities which a reasonably prudent man, faced with the same circumstances in relation to his own affairs, would spend his own money on doing[9]. In my view the same consideration informs an assessment of whether or not liquidators have conducted a liquidation in a manner consistent with its best interests, because those with an economic interest in its outcome must be assumed to want and benefit from speed and economy.  Liquidators should aim to do the minimum not act in a manner inclined to produce controversy and delay; for the only party who benefit from that are the liquidators as fees escalate.  Liquidators have no commercial or proprietary interest in a liquidation; only duties, for which they are entitled to be paid for carrying out. It is perhaps helpful with a view to clarifying what this means in practice to point out that there is a difference between the autonomy that a liquidator has in conducting a liquidation and the nature of his interest in the process.

9.  The court will be slow to interfere with a liquidator’s decision.  It is for a liquidator to use his own professional judgement and expertise and decide how a liquidation should be conducted and determine issues that arise during its course unless they fall into those categories which the Ordinance requires to be sanctioned by the court. The court will only interfere with liquidator’s decision sought to be impugned by a creditor or contributory, if it is demonstrated to have been reached in bad faith or is one that no reasonable liquidator could have reached[10].  In the case of an insolvent company, so it is not directly relevant here, a liquidator’s functions also include investigating the causes of the company’s failure and the conduct of those concerned in its dealings and affairs[11].  This function serves a public interest in enabling the authorities to take action against those guilty of misconduct in relation to a company’s affairs. This duty is not, however, a licence for a liquidator to deplete a company’s assets conducting investigations, which it can reasonably be foreseen will achieve little of value.

10.  It has been a perennial concern of Companies Judges that too many liquidators approach liquidations as a commercial venture, which they exploit for their own financial benefit.  They are not.  It is incumbent on liquidators not only to be guided by the interests of the estate, but be seen to be doing so and not to behave in a manner which invites concern that they are managing a liquidation for their own benefit or with indifference to the duties and standards which they are under.

11.  It might be thought that there is some inconsistency between holding a liquidator to such high standards and the judicial caution explained in [3].  They are reconciled in this way: the court may be satisfied that cause for removal has been shown, but take the view, as the court having a discretion is entitled to, that a liquidator should not be removed, because it would not be in the overall best interests of creditors and/or contributories to do so.

12.  I now turn to consider the Applicant’s complaints.

Applicants’ Case Summarised

13.  Mr William Wong SC, who appeared for the Applicants[12], submitted that the Applicants’ loss of confidence in the liquidators arises from what they say are the cumulative shortcomings in their conduct of the liquidation.  These in summary are as follows:

(1)  The flawed way in which the liquidators initially constituted the committee of inspection (“COI”), including refusing to provide the Applicants’ with proofs of debt as the Applicants were clearly entitled to under Rule 7 of the Proof of Debt Rules, Cap 6E, and responded to the Applicants’ application to the court for its reconstitution, which included making a cross-application to have the COI dissolved.

(2)  The Applicants were successful in their application.  However, the liquidators failed without any proper justification to convene a meeting for the COI to be reconstituted.

(3)  The liquidators have commenced unfair preference and misfeasance applications again Chan Yuen Wa (“CYW”) and her sister Chen Muhua (“CMH”), together the (“Chens”).  Although s 200(1) of the Ordinance requires the liquidators to “have regard to any directions that may be given by resolution of the creditors or contributories at any general meeting, or by the committee of inspection” the liquidators have persistently failed to keep the COI informed of the progress of the proceedings and refused to provide copies of documents; subsequently offering to provide them if the removal summons were withdrawn and the Applicants agreed to fund the unfair prejudice and misfeasance applications. The liquidators attempt to justify their conduct, serve not to exculpate it, but rather demonstrate the adversarial, antagonistic and self-interested way in which the liquidators have gone about their job.

The Company and its Winding Up

14.  The Company is an investment holding company incorporated in July 2008 with one asset, a house at 28 Middle Gap Road, which it purchased in late 2008 for HK$110,000,000.  The house is      now very valuable.  The most recent valuation is in excess of HK$750,000,000.  CYW is the sole shareholder of the Company and was its sole director between December 2008 and September 2012 when she was replaced by Lu Bo Huai. From evidence filed by CYW in the winding-up it would appear to be her case that she had little involvement in the operations of the Company, which were primarily handled by her sister CMH and Ben Lau.  The evidence suggests that CMH and Ben Lau were initially in a relationship, which subsequently ended in 2011. In June 2013, CYW petitioned to wind up the Company on the grounds of insolvency relying on debts allegedly owed to her, which was ordered on 7 August 2013.  The liquidators were appointed on the same day by the Official Receiver.

15.  Chinese Strategic Holdings Limited (“CSH”) is a listed company and Fameway Finance Limited (“Fameway”) is one of its subsidiaries. 

16.  On 29 October 2012 Fameway obtained a judgment against the Company for HK$81,013,800 for which it has partial security. On 22 February 2013, CSH had obtained a judgment for HK$2,011,045 against the Company.  The claims arise from loans made to the Company.

17.  From these facts one might assume that the liquidation would be straightforward.  The house would be sold and the substantial proceeds used to repay creditors and what remains distributed as a dividend to CYW.  This is not what has happened.

18.  The Chens say that the Company’s affairs were managed by Ben Lau until, I assume, the relationship between CMH and Ben Lau ended in late 2011.  Despite the Chens’ allegations that in directing the affairs of the Company they acted at Ben Lau’s directions, it is their case that they paid the initial HK$10,000,000 deposit on the house and subsequently injected funds necessary for the Company to repay a mortgage on the property.

19.  Between 2008 and 2011 the Company entered into various loans.  The parties currently claiming to have lent to the Company and to be creditors of the Company are: The Chens, a company called Revelry Gains and the Applicants.

20.  As I understand the position the Chens’ claims arise from the sums that they paid on behalf of the Company by way of deposit and repayment of the initial mortgage.

21.  Revelry Gains is the assignee of the rights of its parent company, Building and Loan Agency Limited (“BLA”), which lent some HK$200,000,000 to the Company secured by a floating charge over the assets of the Company which includes the house.  BLA is a subsidiary of listed company, HK Building and Loan Agency Limited (“HKBL”). There is currently a mortgage action between the Company and Revelry Gains which was commenced before the Petition was issued, which DHCJ Kent Yee has given leave to the Chens to conduct on behalf of the Company. The Chens say that Revelry Gains is controlled by Ben Lau.

22.  The Chens apparently say that both HKBL and CSH are controlled by Ben Lau and that the loans he directed that the Company obtain from BLA and Fameway were part of a scheme to enable him to siphon monies from the two listed companies for his own benefit.

23.  CSH denies that Ben Lau controls it.  The Liquidators have not adduced any evidence before me, which demonstrates that Ben Lau does control CSH.  Neither have the liquidators adduced any evidence before me to suggest that Fameway (or CSH) did not advance money to the Company.  It maybe that Ben Lau misappropriated money received by the Company from Fameway (and the Chens say that the loans were, at his direction, paid by the Company to him), but that would not ipso facto deprive Fameway of a right to repayment.  The principal issue that arises in the liquidation is whether or not the Chen sisters and Ben Lau have raised loans allegedly on behalf of the Company collateralised against the house for their personal benefit.  However, as it has become clear over time that the house is so valuable that there will be a surplus available for the contributories one might have thought that what was required was to identify the independent creditors and ensure that they are paid promptly.  I have not seen anything which indicates that the Chens suggest that the Applicants are not entitled to repayment of the sums they advanced even if the advances they made to the Company have subsequently been misapplied.

24.  It would appear that the principal controversy in the liquidation concerns use of the Company by Ben Lau to raise money and whether or not the loans involved impropriety on behalf of either the Chen sisters or Ben Lau.  However, those disputes are resolved there will be a surplus.  It does not seem to me at present that there is any good reason to think that the Applicants should not be paid.  In my view liquidators alive to their duty to conduct the liquidation for the benefit of those with an economic interest in it, which in the first instance would be the creditors, would in these circumstances have established whether any of those with an economic interest in the liquidation had a credible reason to dispute any of the creditors’ claims, proceeded to agree to a sale of the house and advance the determination of the competing claims that seem to arise between the Chen sisters and Ben Lau, principally in relation to the Revelry Gains claim.

25.  The liquidators have commenced misfeasance and unfair prejudice proceedings against the Chens.  The Chens have commenced contribution proceedings against Ben Lau for any sums the court should order them to pay in the misfeasance and unfair prejudice proceedings.      I note that at the Case Management Conference (“CMC”) in those proceedings on 12 October 2018 senior Counsel for the Chens, Barrie Barlow SC, complained on behalf of his clients about the liquidators’ lack of progress in bringing to resolution the dispute about the propriety of the loans raised by the Company, which he observed seemed to involve fraud by either the Chens or Ben Lau; the issue was whom.   As things stand Mr Lau is, or at least was apparently living in the house rent free in October 2018.  The trials of both the liquidators claim and the contribution action are fixed for July of this year.

26.  Ms Cheung made much of the complexity of these claims in her submissions in answer to the Applicants’ complaints.  In particular she argued that the most problematic aspect of the liquidation has been the Applicants’ failure to cooperate with the liquidators investigation[13].  As I understand it, this concern seems to arise from the fact that the Chens allege that the Applicants are controlled by Ben Lau.  As I have already observed, the liquidators do not suggest that the advances were not made to the Company.  It maybe that the Applicants could have provided the liquidators with information about the genesis of the loans that they made, but it is unclear to me why this makes any difference to the Applicants’ right to prove in the liquidation, and Ms Cheung did not suggest any reason for them not to be able to do so.  The information the liquidators apparently would like to obtain goes to the misfeasance and unfair preference claims against the Chens.  If the liquidators felt that there was helpful information that the Applicants should be able to provide they could have availed themselves of s286 of the Ordinance.

The Applicants Complaints

27.  As I have explained the Applicants rely on three matters in support of their application.

28.  CSH sought, as in my view they were clearly entitled to having been admitted for voting purposes, copies of the proofs of debt on 31 July 2014.  It was not until 10 February 2015 that the liquidators’ solicitors, Stephenson Harwood, eventually agreed to allow the proofs to be inspected.  Stephenson Harwood’ s correspondence is adversarial and unconstructive.  It reads as if the liquidators simply did not want to provide copies.  Stephenson Harwood do not give any reason why provision of the proofs causes the liquidators concerns.  This is not of itself a complaint of great weight, and Mr Wong did not suggest otherwise.  The way the Applicants put their case is that their complaints taken together show a pattern of conduct, which legitimately has caused them to lose confidence in the liquidators’ competence and objectivity.  The second complaint is more substantial in my view.

29.  Having obtained the Chens’ proofs, the Applicants were concerned about the constitution of the COI on which the Chens sat,  their proofs having been admitted for the value of their claims and Fameway’s proof rejected on the grounds that it was fully secured,   which at the time Fameway thought it was not.  On 13 April 2015      the Applicants issued a summons to reconstitute the COI.  It was fixed for hearing on 9 July 2015.  On 30 June 2015 the liquidators issued a summons for the COI to be dissolved.  The summons were adjourned for substantive hearing on 2 March 2016. Shortly before the hearing the liquidators agreed that CMH and CYW’s proofs should be valued at HK$1 for voting purposes as the Applicants’ summons sought.

30.  I rejected the liquidators arguments and application for the reasons explained in my decision dated 7 April 2016. I ordered that the COI be reconstituted.  A creditors meeting was held on 16 May 2016, but it was inquorate as the Chens and another creditor aligned with them did not attend.  On 3 June 2016 the Applicants asked the liquidators to apply to court to reconstitute the COI or to reduce the quorum to two.  Initially the liquidators’ reaction, through Stephenson Harwood’s letter of 7 June 2016, was to ask the Applicants the legal basis for making such an application, which I find surprising.  The Applicants’ solicitors replied   on 22 June 2016, identifying the relevant statutory provisions.       On 24 June 2016 Stephenson Harwood wrote “The Liquidators will put forward your clients’ proposal to the Court”.  On 27 June 2016 the Applicants’ solicitors requested copies of the proposal put to the court.  This was not supplied despite chasing letters.  On 29 July 2016 Stephenson Harwood replied. The letter states in the 2^nd and 3^rd paragraphs:

“The Liquidators filed their report to the Court on 15 July 2016 (the ‘Liquidators’ Report’) in relation to your clients’ proposal set out in your letter dated 22 June 2016 together with the Liquidators’ comments.

Upon considering the Liquidators’ Report, the Court has directed the Liquidators to take out an inter-parte summons concerning the formation of a Committee of Inspection. The inter parte summons will be served on you and all other unsecured creditors in due course.”

31.  The Applicants were never supplied with the Report to the court and it did not form part of the liquidators’ evidence. Given the fact that it had caused me to direct that an inter partes summons be issued      I checked the court file.  What the liquidators sought in the report was that there be no COI and the contents of the report were, unsurprisingly, directed to persuading the court to so order despite my decision in April and my reasons for it.  There is only one paragraph in the report, [24], which makes reference to what the Applicants asked the liquidators to seek:

“Fameway and Chinese Strategic requested the Liquidators to apply to the Court to hold a court meeting pursuant to section 287 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance Cap 32 and Rule 112 of the Companies (Winding Up) Rules (Cap 32H), and to change the quorum of the meeting pursuant to Rule 113 of the Companies (Winding Up) Rules (Cap 32H)”

32.  It is clear why the liquidators did not provide the Applicants with the report.  It sought to do the opposite to what the Applicant’s requested.  In my view Stephenson Harwood’s letters materially misrepresented the contents of the liquidators’ report.  I asked at the hearing if Stephenson Harwood at the time of writing the 29 July 2016 letter had seen the report.  I was told that the partner present was not sure.  It was not suggested that the liquidators had not seen the letter and were unaware that the Applicants had been misled; I think it is a compelling inference that the liquidators consciously allowed Stephenson Harwood to misrepresent what the court had been told by their letters of 24 June and 29 July.

33.  This is not a matter of which the Applicants were aware until I brought it to their attention, but Mr Wong quite reasonably adopted it as another example of the liquidators’ unsatisfactory conduct.

34.  As a result of my clerk’s letter in response to the report on 12 August 2016 the liquidators issued a summons again seeking an order that the COI be dissolved.

35.  After an exchange of correspondence, on 14 October 2016 the liquidators proposed to enter a consent summons for convening a creditors meeting with a quorum of two.  It was filed on 20 October 2016 and the order was made on 31 October 2016.  The meeting took place on 2 December 2016.  The Applicants and another creditor called Pius, apparently aligned with the Chens, were appointed.

36.  The liquidators made an application on 16 December 2016 for the court’s approval of the results of the meeting.  As it transpired the application was made in the form of a report prepared by, and filed by, the liquidators not Stephenson Harwood, which did not state that it contained an application.  As a consequence the Master who received it did not realise that in Appendix 8 to the report there was a draft order, which the liquidators wished the court to make.

37.  Written applications to the Companies Court, whether to judges or masters, are increasingly common and in my experience the court deals with them quickly.  However, occasionally, but fortunately infrequently, papers get mislaid or overlooked and come to my attention as a result of solicitors writing to the court asking about the status of the application, which has not been dealt with as promptly as they are used to.  Despite chasing letters from the Applicants’ solicitors asking whether the order had been made, neither the liquidators nor Stephenson Harwood approached the Master’s clerk to find out what had happened to the application.  In answer to a letter from the Applicants’ solicitors dated 28 April 2017, Stephenson Harwood wrote on 28 April 2017 stating that if the Applicants wanted the liquidators to check the status of the application they should first answered some unrelated questions.  Understandably frustrated by the liquidators and their solicitors’ apparent indifference to the application, by this time made some six months earlier, on 19 June 2017, the Applicants’ solicitors wrote to the Clerk to the Registrar asking about the progress of the application.  This brought the application to the attention of Master Lai, who dealt with it immediately, and resulted in an entirely justified rebuke for the liquidators, but not,      I note, an apology to the Applicants from the liquidators or      Stephenson Harwood.  Stephenson Harwood’s letter of 26 July 2017 to the Applicant’s solicitors following Master Lai’s letter, written presumably on the liquidators’ instructions, can only sensibly be viewed in the circumstances as consciously adversarial: ignoring their clients’ blunder and choosing to criticise the Applicants in respect of an unrelated issue.

38.  I will not go through all the correspondence between the Applicants’ solicitors and Stephenson Harwood in the following months.  What is clear is that the Applicants, who by this time were on the COI, demonstrated an interest in understanding how the liquidation was progressing and in the particular the misfeasance and unfair preference claim. On 23 January 2018 Stephenson Harwood replied to the applicants’ enquiries simply stating that as a result of ongoing discussions which might lead to a settlement of all claims in the liquidation the misfeasance and unfair preference summons had been adjourned sine die.       On 30 January 2018 the Applicants’ solicitors wrote complaining about the exclusion of the COI from the decision to adjourn the summons.  Although it would appear that the Applicants were a party to the discussions I agree with the Applicants that this was not a reason to ignore the COI and not discuss with it the adjournment of the misfeasance and unfair preference summons.  It seems to me clear that the liquidators had no interest in involving the COI in their deliberations      and were wilfully ignoring my explanation of the role of the COI in my April 2016 decision and showing either indifference or ignorance of s199(2) of the Ordinance and Schedule 25 (Part 1 Para 3), which provides that liquidators should exercise the power to compromise claims with the sanction of the COI, which necessarily involves consultation with it.

39.  The Applicants’ also complain that the liquidators refused to provide the COI with copies of the evidence filed in the misfeasance and unfair preference application.  It was suggested by Ms Cheung during her address that the liquidators were reluctant to provide evidence to the Applicants’ because of the suggestion by the Chens that the Applicants were aligned with Ben Lau and a concern that to do so would be seen as unfairly assisting the Ben Lau “camp”.  It is perhaps understandable that the liquidators were concerned about appearing to be impartial, but it seems to me that there was a straightforward solution to the issue. The liquidators could have written to CYW and CMH’s solicitors and told them that they proposed to provide the members of the COI with the evidence on a particular date unless they objected, and if they did the liquidators would consider making the appropriate application to the court for directions. 

40.  The reason for the liquidators’ refusal to provide documents also sits ill with the proposal in Stephenson Harwood’s letter of 28 November 2018 that the liquidators provide copies of the affirmations if the Applicants fund the misfeasance and unfair preference application and withdraw the removal application, which had by that time been issued.

41.  The liquidators were appointed six years ago to liquidate a company, which has one asset: the house.  The house has not been sold.  The liquidation would appear from the evidence filed for this application to have been mired in constant arguments between the liquidators and those people or companies claiming to have an interest in the liquidation. As I have already noted both the Chen sisters and the Applicants appear to be unhappy that the liquidators rather than facilitating the resolution of the disputes between the Chen sisters and Ben Lau, which appear to be central to the completion of the liquidation, have allowed the liquidation to become mired in peripheral and needless arguments which serve no purpose other than to escalate costs.  The totality of the correspondence in the exhibits before me reveals a continuously adversarial approach to dealing with the Applicants and a wilful indifference to my April 2016 order and the reasons for it.  It seems to me that it is entirely unsurprising that the Applicants have lost confidence in the liquidators and decided that they should be removed.

42.  Even allowing for the latitude that the court gives liquidators in determining how best to conduct a liquidation, it seems to me that the liquidators conduct, as well as causing the Applicants to loose confidence, demonstrates that the liquidators have lost sight of their primary obligation, namely, to advance the interests of the creditors and contributories by obtaining the maximum return for them as quickly as is reasonably possible.  I also find it troubling that the liquidation has gone on as long as it has.  There is no evidence of the Liquidators being concerned to deal with the matter timeously.  They seem to be quite content for the matter to drag on, and fees and expenses escalate.

43.  As well as removing the liquidators I will also make an order for a creditors meeting to be convened by the Official Receiver who shall replace the liquidators in order for creditors to consider appointing alternative insolvency practitioners as the liquidators of the Company.