DAVID KONG v. PINE GROWTH MANUFACTURING CO LTD AND OTHERS

HCCW321/2006
& HCCW322/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 321 OF 2006

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HCCW322/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 322 OF 2006

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D E C I S I O N

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1. This application arises in the context of two petitions which were presented by Mr David Kong, the petitioner, on 24 June 2006 in respect of two companies in which he is a shareholder.  The companies are Pine Growth Manufacturing Company Limited which is the 1st respondent in HCCW321 of 2006 and Pine Development Limited which is the 1st respondent in HCCW322 of 2006.

2. Mr Kong holds 30 per cent of the issued shares of Pine Growth and 33 per cent of the issued shares of Pine Development.  The other shareholders in the two companies are members of the Chan family.  In the case of Pine Growth, 70 per cent of its shares are beneficially owned by Mr Chan Kin who I am told is the patriarch of the Chan family.  In Pine Development, the remaining 67 per cent of the shareholding is owned by Mr Charles Chan.

3. The directors of Pine Growth are Mr Chan Kin; Mr Charles Chan, who is the son of Mr Chan Kin; and James Chan, the brother of Charles Chan, along with Mr Kong.  The same persons, with the exception of Mr Chan Kin, are directors of Pine Development. 

4. Petitions having been presented on 24 June 2006, an application came before the court for the appointment of receivers or provisional liquidators in relation to the companies in December 2006.  However, in the event, the outcome of that application was that on 18 December 2006, the parties agreed to settle their disputes under the petitions.  As a result, they entered into a Tomlin Order, in effect, which provided for Mr Kong's shares to be sold to the respondents other than the companies on the basis of a valuation that was to take place.  The valuation was to be done by reference to the value of the companies on a going-concern basis without any discount, I think, for the fact that Mr Kong was a minority shareholder. 

5. The valuer to be appointed to carry out this valuation was to be a certified public accountant.  The valuer was directed by the terms that were agreed to take certain matters into account.  He was to be given access to the books and records of Pine Growth, Pine Development and a number of other companies and entities for the purpose of doing the valuation  Kong and his advisers were also to be given access to and to be permitted to take notes or make copies of books and records, whether in hard or soft copy, for the purpose of making representations to the valuer which both sides were entitled to do.  There was also a term relating to the obtaining of the release of Mr Kong from guarantees which he had given in respect of debts of the companies.  This is not surprising since it is natural that he would not wish to be under any further liability in respect of the debts of the companies after he ceased to be a shareholder of them. 

6. Since then, however, the working-out of the terms of settlement and their implementation has been bedevilled by difficulties and delays which has resulted in a number of applications to the court.  One such application was the one which came before me on 1 August 2007.  On that occasion, I gave certain further directions with a view to progressing the matter.  Those directions related both to the appointment of valuers and in relation to the inspection of documents by Mr Kong. 

7. Unfortunately, those directions have not resulted in much progress being made.  Parties appear to have reached an impasse in relation to the appointment of valuers and there have also been, it seems, further difficulties in relation to inspection and also in relation to the release of the petitioner from the guarantees that he has given. 

8. I shall deal first with the question of the appointment of valuers.  The matter now comes before me on two sets of two sets, the first set having been issued by Mr Kong and the second set by the respondents, each seeking the appointment of valuers.  Mr Kong seeks the appointment of Messrs Grant Thornton, whereas the Chans seek the appointment of Messrs Baker Tilley.  But so far as this issue is concerned - that of the appointment of valuers - the position is essentially the same in relation to both petitions and I shall therefore deal with them as if they were one matter. 

9. In the order of 1 August 2007, it was ordered that the respondent should co-operate with the petitioner to appoint Grant Thornton as valuer for the purposes of the valuation to be carried out under the terms of the Tomlin Order.  The order, however, went on to provide that if Grant Thornton should refuse accept appointment on terms acceptable to both parties, the parties should then seek to appoint Baker Tilley as the valuer.

10. There was, shortly after the hearing on 1 August, some dispute as to the precise terms in which this particular order should be made.  Initially, at the end of the hearing before me, it was left to counsel to try to sort out an agreed form of words.  This does not, however, seem to have happened.  In the event, what seems to have happened is that the petitioner's side put forward a draft for the court's consideration.  On becoming aware of this, the respondents responded, making certain comments and suggestions as to the appropriate wording to be adopted. 

11. One particular matter that was suggested by the respondents was the addition of the phrase "on terms acceptable to both parties" which I have just referred to, in the context of the appointment of the valuers.  Although the petitioner, I think, initially agreed to the inclusion of this phrase, he later sought in correspondence with the respondents in the court to withdraw his agreement to it.  The matter then fell to me to make a ruling and I ruled that the term should be included. 

12. Mr Scott, who has appeared today for the petitioner has sought to characterise this term as giving, in effect, a veto to the respondents over the appointment of Grant Thornton.  But, with respect, I do not think that this is an entirely accurate characterisation of the term.  I think that the relevant paragraph on my order of 1 August 2007 has to be construed as a whole.  Read as a whole, it requires the parties to co-operate, initially, at least in the first place, in the appointment of Grant Thornton.  I think that this imports a need to make genuine efforts to do so and to act reasonably in seeking Grant Thornton's appointment. 

13. However, it is also for the parties, as made clear by the following sentence in which reference is made to the possibility arising that Grant Thornton may not be prepared to accept appointment on terms acceptable to both parties, that the parties must try to agree the terms on which Grant Thornton should be appointed and it seems to me that provided that the terms which one or other party seeks to put forward are reasonable ones, they should be accommodated.  So understood, the order provides a measure of protection to both parties so that neither is forced to proceed with a valuation by a valuer on terms to which he has reasonable objection. 

14. In the event, the way in which matters developed was as follows:  Grant Thornton were invited to discuss the proposed appointment with the parties and to make a preliminary inspection of the documents relating to the company accounts with a view to providing a quotation.  This seems to have taken place reasonably soon after 1 August 2007 hearing.  By 10 September 2007, Grant Thornton had produced a draft fee proposal for discussion purposes.  It was clear from the document and the proposal itself that is was a draft for discussion purposes.  It was also made clear in the draft proposal that Grant Thornton would only be in a position to provide a firm proposal after an inspection of the underlying documents, books and records of the companies and other entities concerned. 

15. Notwithstanding this tentative and qualified nature of the proposal, an attendance note from the petitioner's solicitors dated 13 September 2007 appears to record that the petitioner had "accepted the proposal".  Nothing, however, was heard from the respondents.  A number of reminders were sent and eventually, on 17 October 2007, the respondents' solicitors wrote to those representing the petitioner saying that they were considering an appeal in relation to the 1 August 2007 order and felt that the appointment of the valuer should be put on hold until that matter was resolved. 

16. In the event, however, within a few weeks it was decided that no appeal would be proceeded with after all and, in November 2007, arrangements were made for Grant Thornton to inspect documents at the companies' offices.  However, shortly before that inspection was to take place, the petitioner decided to give notice of his intention to inspect the companies' books and records at the same time.  A consequence was that the inspection that should have taken place by Grant Thornton was delayed for some two weeks.  Each side blames the other for the delay.  However, as the delay was only of some two weeks, I do not regard it as particularly substantial and I do not think it necessary at this point for me to resolve the question of who was to blame for it. 

17. In January, Grant Thornton came up with a revised proposal in which they suggested that the fees would, in fact, be in the region of HK$1.2 million in addition to which there would be a charge for all disbursements that they incurred.  No cap was offered in respect of either the fees or the disbursements.  Again, this was accepted quite promptly by the petitioner.  The solicitors again pressed the respondents to respond to it.  After two reminders, the respondents gave their answer on 12 February 2008.  While accepting that there was no objection in principle to Grant Thornton's appointment on the grounds of competence or integrity, they made the point that the quotation had been increased by what appeared to be a fairly substantial amount.  It had increased by some 50 per cent from the lower ground of the initial rough quotation and by 20 per cent, $200,000.00, from the upper bound of that quotation. 

18. They suggested that, in the circumstances, it might make sense to obtain a further quotation from an alternative party.  They suggested, given that Baker Tilley was the second choice of valuer that the parties had identified in the order of 1 August 2007, that they should approach Baker Tilley for a quotation.  The petitioner's response was that he was not prepared to wait what might for what might be several more months before another quotation was provided and urged that the respondents agree to the Grant Thornton proposal.  This the respondents were not prepared to do.  They said, therefore, that they would ask Baker Tilley to provide a quotation and would invite them to inspect the documents that had been inspected by Grant Thornton before doing so.  But it is fair to note that the petitioners were invited to attend the proposed meeting and inspection by Baker Tilley but they chose not to do so.  It is also, I think, relevant to note that the respondent indicated, when indicating that they would be approaching Baker Tilley, that they accepted that if no quotation was obtained from Baker Tilley, I think it was within seven days, a reasonably short space of time in the circumstances, they would accept Grant Thornton as the valuers and would go ahead and now confirm that appointment. 

19. As it happened, Baker Tilley were able to and did provide a quotation within seven days.  It was substantially lower than the latest quotation from Grant Thornton.  The offer was to do essentially the same work at a fee of HK$800,000.00 which represented a cap on their fees.  More accurately, they agreed to produce the valuation required on a time-cost basis with an overall cap of $800,000.00 in respect of both their fees and their disbursements. 

20. The time that it was expected that would be necessary to produce the valuation was the same as the shortest estimate on the part of Grant Thornton.  It was slightly shorter than the outside range of the time estimate that had been given by Grant Thornton.  That was six to eight weeks, whereas Baker Tilley indicated that they anticipated that a valuation could be produced within six weeks.  Not surprisingly perhaps, the respondent suggested that in the light of the substantially lower fees that were proposed to be charged by Baker Tilley, the parties should simply appoint Baker Tilley as the valuer for the purposes of the valuation exercise. 

21. The petitioner did not respond at once, but responded a couple of weeks later expressing various concerns about Baker Tilley.  The concerns appear to have related principally to the fact that a senior partner of Baker Tilley had been charged with a criminal offence.  It has to be said, however, that this related to matters that had taken place back in 2004.  It is not entirely clear when the petitioner is said to have become aware of this fact but, in any event, the partner concerned was eventually acquitted and is also no longer a partner of Baker Tilley, as I understand it.  There were also some reservations expressed by Mr David Webb, a well-known corporate activist, who had expressed some concerns about the audit by Baker Tilley of the accounts of certain companies which were their clients for audit purposes. 

22. The petitioner also went back to Grant Thornton to inquire whether they could improve their quotation.  It is not clear whether this was made known to the respondents but it does not appear to have been.  It was also not clear from the initial correspondence whether or not Grant Thornton had been provided with the quotation prepared by Baker Tilley, although I am told in Mr Coleman's submissions, that they were. 

23. As it happens, Grant Thornton came back with an improved proposal and proposed to charge HK$1 million by way of fee, which they said would be the cap, although their fees would, of course, be charged in the usual way on a time-cost basis and if the time spent resulted in a lower figure, then a lower figure would be charged.  Their hourly rates were, however, rather higher than those of persons of similar seniority within Baker Tilley.  It is also fair to point out that the proposed fee of $1 million as an outside cap was subject to a qualification in that if it turned out that a substantially lower time was required than had been anticipated, or if it took considerably longer than had been anticipated to obtain the information necessary, it might be necessary to increase the fee beyond the cap.  The cap of, apparently, HK$22,000.00 was also proposed in respect of the disbursements although the precise status of this cap is a little clear having regard to the terms of the quotation requested. 

24. The respondent remained of the view that the parties should use Baker Tilley as the valuer on the grounds that they were still cheaper than the proposal by Grant Thornton.  The petitioner, for his part, insisted on Grant Thornton.  This resulted in the petitioner issuing the two summonses which he has issued which are now before me.  As I have noted, the respondents responded with summonses of their own, calling for the appointment of Baker Tilley and it is said for the petitioners that it is not reasonable to reject the latest offer by Grant Thornton having regard to the fact that the difference in price is, as they put it, "only HK$200,000.00 which makes a difference of HK$100,000.00 to each party" and they say that if it is necessary, they are prepared to pay the excess over 50 per cent of the fees that would be charged by Baker Tilley.

25. Before the hearing, there were also some suggestions from both sides about the possibility of appointing other valuers instead.  These originated, I think, from the petitioner but, in the event, they have not been pressed for by either party today principally on the basis that this would lead to further delay. 

26. In considering this aspect of the matter, I think it necessary first to have regard to the terms of the order.  I have already indicated my interpretation of it.  I have to say that I do not think that the way in which the parties have approached this matter indicates that either party has actually followed the appropriate course of conduct.  It seems to me that what should have happened was as follows:  I say first that while it was certainly envisaged that Grant Thornton should be appointed as a first choice of valuer, it was equally made clear in the order that the terms on which they were appointed had to be acceptable to both parties.  I would have though it obvious that one of the principal terms which would be of concern to the parties would be the question of cost. 

27. It was therefore necessary for the parties to have some idea as to what sort of costs they were prepared to pay in respect of the valuation.  To do this, it might well have been necessary for them to obtain quotations from a number of valuers with a view to seeing what the effective market rate was for the production of a valuation in a situation such as this.  It appears that a number of estimates have been obtained by the petitioner from other firms, principally, I think, PriceWaterhouse Coopers and, I think, Deloittes, which are rather more than those of Grant Thornton.  But, as Mr Coleman rightly observed, both of those firms are members of what is popularly known as "the big four" accounting practices who tend to charge rather higher fees for their services.  The choice of valuers in this case and the suggested choice of valuers in the event that neither of these two - Grant Thornton or Baker Tilley - were appointed, was for firms of qualified valuers, certified public accountants outside of "the big four".

28. In the circumstances, it seems to me that it was therefore reasonable for the respondent to suggest that a quotation should be obtained from Baker Tilley.  Having obtained such a quotation and having observed the, at that stage, substantial difference in the prices for the services that were quoted as between the two, it seems to me that it would have been open and perhaps sensible for the parties to have gone back to Grant Thornton informing them of the amount on the Baker Tilley quotation and asking them whether they would be prepared to match it and accept appointment on those terms.  This does not seem to have been done. 

29. I do not know whether they would have accepted.  They might; they might not.  The fact that they have put forward a quotation in a higher sum than that by Baker Tilley, even if it was on the basis of having seen the Baker Tilley quotation, does not indicate that is necessarily their last word on the matter.  If the parties were to approach them on the basis that they are prepared to appoint them on terms that are the same as those that are offered by Baker Tilley, then it may be that Grant Thornton would decide to accept the appointment.  Whether or not they do so would be a matter for them. 

30. If they chose not to do so, then, under the terms of the order, the appointment should have been offered to Baker Tilley who, one assumes, would accept.  I do not think that the respondents can be criticised as being unreasonable or being desirous of obtaining a valuation for the purposes of the settlement exercise at the lowest reasonable cost. 

31. As for the allegation that has been made that the respondents have been seeking to put obstacles in the way of valuation of the valuation proceeding at every opportunity, I do not think that the criticism is one that is entirely fair.  I accept, however, that the respondents would appear to have been guilty of some quite substantial delay in the initial period.  In particular, they failed to respond to the first quotation by Grant Thornton in September until mid-October and they again failed to respond to the revised quotation for a period of about one month between January and February this year.  They have, therefore, been responsible for delay of some two to three months. 

32. But that said, once they did respond to the second quotation, it does seem to me that they proceeded reasonably quickly to obtain a quotation from Baker Tilley and, what is more, indicated that if Baker Tilley were not in a position to provide such quotation within a relatively short timeframe, they would accept the appointment of Grant Thornton.  Thereafter, such further delay as has occurred seems to me to have been a result of both parties, the petitioner no less the respondents digging in their heels.  This is particularly unfortunate because it seems to me that if the matter had been approached in a spirit of greater co-operation, it may have been that a valuation would by now have been produced at less cost than has, in fact, been incurred as a result of these proceedings. 

33. I should also deal with the two other objections that have been voiced to the appointment of Baker Tilley.  I do not think that either of them are well-founded.  I do not think that the concern about the involvement of the ex-partner of Baker Tilley in criminal proceedings is a valid one and nor is that based on the concerns expressed by Mr Webb.

34. As far as the criminal proceedings are concerned, as I have observed, they are matters that happened in 2004.  The partner in question was acquitted and is no longer a partner of Baker Tilley.  As for the other matters, it seems to me that Baker Tilley is an organisation of reasonably substantial size and whoever is elected to be the valuer for the purposes of this project is likely to be a partner of Baker Tilley who has no involvement with any of the matters in respect of which some concerns would be expressed.  There should be no difficulty if Baker Tilley do come to be appointed at the end of the day in ensuring that whoever signs off on the valuation is someone who has no blemishes on his record so far as either of the parties are concerned. 

35. As far as the other point that was taken that the Baker Tilley entity that provided the quotation did not call itself Baker Tilley, Certified Public Accountants, but was a limited company whose name suggests that it provides corporate recovery or corporate restructuring services, it seems to me that, at the end of the day, the question of the initial order requires that the valuation be carried out by a certified public accountant.  It seems to me that as long as a member of Baker Tilley or of Grant Thornton, as the case may be, who is in fact a certified public accountant provides a valuation that is required, that requirement will be met.  I, therefore, do not think that this objection is a valid ground for ruling Baker Tilley out of the candidacy for position of valuer, they having been expressly chosen by both the parties in the course of the hearing on 1 August 2007. 

36. It will be apparent from what I have said that the appropriate course that I think should take place is for Grant Thornton to be offered the appointment on terms that are identical to those that have been tendered by Baker Tilley.  If Grant Thornton declined to accept on that basis, then the appointment should be offered to Baker Tilley.  If Baker Tilley should also, for whatever reason, decline to accept the appointment then, no doubt, the matter will have to come back before the court but I very much hope that this will not be necessary. 

37. In the circumstances, it follows that I would not propose to make an order in terms precisely of either parties' applications in this matter.

38. I turn now to the question of discovery or, rather, inspection of the books and records of the various companies which are to feature in the valuation exercise.  It is clear that there has been some hold-up in relation to the inspection and provision of documentation.  The principle reason for this appears to have been an unwillingness or inability on the part of the parties to agree a sensible procedure for carrying out the inspection and for obtaining the necessary copies. 

39. So far as the question of inspection is concerned, it seems to me that terms of the earlier orders are quite clear.  The petitioner is entitled, with the assistance of his advisers, to inspect the documents and, for this purpose, he is to be given access to the information recorded in electronic forms on computers and systems of the companies concerned.  It is fair to say that the alternative is for the petitioner to provide such copies whether in hard or soft form at an early stage.  It seems to me that it will not be possible to avoid altogether the need for some inspection by the petitioner because the petitioner will wish reasonably to be satisfied that what he is provided with is, in fact, everything to which he is entitled under the terms of the order.  It is therefore necessary for that inspection to take place and to be completed and for that to be done as soon as possible.  Once that is done, the question of how copies are provided is really a mechanical question which the parties can deal with but, for their guidance, I would say this:  it is understandable that the respondents may have some concerns about allowing the petitioner to physically make copies from their computer systems.  While that is a reasonable concern, it does seem to me that the solution is to provide soft copies of documents identified by the petitioner in the course of his inspection by their being copied onto compact disks or digital versatile disks. 

40. The only question that arises is as to the cost of doing so.  It seems to me that just as the respondent would have been entitled to charge reasonable photocopying charges which the petitioner appears to accept at the rate of $1.00 per page copied, in the same way, the respondents should be entitled to a reasonable amount for the service of providing soft copies on DVD of the relevant documents. 

41. The dispute as to this seems to turn on the difference between the physical cost and the DVD and what I would have to say is a relatively nominal sum of $200.00 to cover part of the costs of providing the service of copying.  In the same way as the charge of HK$1.00 per page for photocopying does not represent the cost of the physical paper on which the copies are made, that also includes an element for the overheads or upkeep on the photocopying machines and the time of the persons involved in making the photocopies, it seems to me that the sum of HK$200.00 for one DVD which is likely to be sufficient to hold, one would hope, all of the documents so far required to be copied for the benefit of the petitioner, seems to be a reasonable amount to pay even if it is necessary to have two DVDs because the cost in question is likely to be far less than the cost of obtaining the same documents in hard-copy form by photocopying. 

42. It has to be said that the correspondence indicates that although certain questions that were raised by the respondents as to the precise documents that were required to be copied and as to the format in which the copies were desired by the petitioner, do not seem to have been answered by the petitioner. 

43. It seems to me that this may be due to the fact that the parties' relationship is such that the breakdown has been such that neither party is willing to trust the other.  That may be so but the fact is that the order for this settlement that has been agreed between the parties to be put into effect in order to enable the matter to be brought to a close in a way which hopefully will satisfy both parties, it is necessary for the parties to co-operate and be sensible in their approach to all of these issues. 

44. In this regard, it seems to me that the legal advisers of the parties bear in equal responsibility for making sure that their clients are given advice that is both sensible and responsible.

45. In relation, therefore, to the question of discover, it does not seem to me that it is necessary to make a separate order.  What is needed is for the existing orders to be carried out.  I see no reason why that should not be done as a matter of priority.  While I accept that the respondent has a business to run and that his company is in operation, it does seem to me that the question of provision of documentation is a matter that can be dealt with reasonably quickly, particularly if it is dealt with in soft-copy form and I would expect that there should be very little further delay in enabling such inspection which is to take place and the provision of copies that are required as a result of such inspection. 

46. It is always open, of course, to the petitioner to serve copies of the relevant orders on the respondents with penal notices attached and if there are further difficulties in relation to inspection and provision of copies, if the circumstances are such as to warrant it, appropriate proceedings for enforcement may be brought. 

47. I deal finally with the question of the guarantees and it seems to me that the position in relation to the guarantees is, at the end of the day, not similar to that in relation to inspection and provision of documents. 

48. The relevant term of the Tomlin order that related the question of the guarantees did call for the parties to cooperate.  It also required the respondents to procure, in effect, in co-operation with the petitioner, the release of the petitioner from the guarantees which he had provided in relation to the debts of the companies and entities concerned. 

49. In practical terms, it seems that we are now dealing only with one set of guarantees issued in favour of the HongKong & Shanghai Banking Corporation.  It seems to me that both parties should have been in touch with the bank, not just to find out the terms of the guarantees, but also to find out what needed to be done to enable Mr Kong to be released from them.  This does not yet appear to have been done by either party.  While it is entirely reasonable for Mr Scott to say that this is something that the respondent should have done, it seems to me that it just as much the case that this is something that Mr Kong should have done by asking the bank what needed to be done and what they would be looking for from the respondents in order to enable him to be released from his guarantees.  It may be that the bank will say that that was a matter that they would not discuss with the respondents rather than Mr Kong but at least if Mr Kong had asked, he would have been in a position to tell the respondents that this was what the bank said and the ball would then be very firmly in their court. 

50. It seems to me as far as the HongKong Bank guarantees are concerned, the appropriate solution would probably be for the parties to write jointly through their solicitors to HongKong Bank to enquire what HongKong Bank would require in order to release Mr Kong unconditionally from his guarantees whether in terms of substitute security or any other requirements that might be called for by the bank.  If the question was one of providing subsequent security, having found that out, it seems to me that the obligation would then be on the respondents in compliance with the relevant paragraph in the Tomlin Order to take steps to ensure that this was done and thereby to procure the release of Mr Kong from the guarantees.  But, as I say, since at this stage it seems to me that both parties could have done something more in this respect, I do not propose to make an order as to this other than to leave it to the parties to take steps to carry that part of the Tomlin Order into effect. 

51. Having indicated the way forward, it seems to me that there is no reason why that should not be done in a matter of days or perhaps, at the outside, a week or so while the respective solicitors liaise as to the terms of the letter to be sent to the HongKong & Shanghai Banking Corporation.

52. Finally, I would say that while the petitioner may well be understandably frustrated about the apparent lack of progress in the achievement of the valuation and clean break which he had, no doubt, hoped to achieve as a result of the settlement on 18 December 2006, it does seem to me that not all of the fault for the delay can be put at the door of the respondent.  Some fault, no doubt, does lie with the respondent but it seems to me that the petitioner must also bear a portion of the responsibility. 

53. As I have observed, the difficulties that have beset this case are mainly due to the unfortunate breakdown in the relationship between the parties but the fact is that as the parties have resolved, by their settlement, to try to deal with that breakdown by going their separate ways, it seems to me that they would be better advised to try to co-operate to enable that to be done than to fight about every single point that could conceivably be fought over in the process of doing so.