RE CA CULTURAL TECHNOLOGY GROUP LTD

HCCW 190/2022

[2022] HKCFI 3790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO 190 OF 2022

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D E C I S I O N

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1.  There are 3 applications before the court:

(1)  The summons dated 12 July 2022 (“Strike Out Summons”) issued by CA Cultural Technology Group Limited (“Company”) to strike out the petition presented by Maxx Capital Finance Limited (“Petitioner”) on 27 May 2022 (as amended on 23 November 2022) on insolvency ground (“Petition”).

(2)  The summons dated 20 October 2022 issued by Ms Sun Ying, a supporting creditor (“SC”), for leave to be substituted as the petitioning creditor in the event that the Petition is struck out (“Substitution Summons”). 

(3)  The summons dated 21 October 2022 issued by the Company for a validation order in respect of the transfer of shares after the date of the Petition (“VO Summons”). 

2.  The Petitioner also issued a summons dated 23 November 2022 for leave to file a third affirmation of Ms Lo Yuk Yee (respectively “Lo 3^rd” and “Ms Lo”) in opposition to the Strike Out Summons.  I do not think that there is any justification for the Petitioner to file a further affirmation, having already filed 3 affirmations in opposition to the Strike Out Summons[1] and in the absence of any change of circumstances or proper explanation for the delay. 

3.  There is (rightly) no objection to the VO Summons.  This accords with the principle that a transfer of fully paid up shares is not objectionable (Re Tian Shan Development (Holding) Ltd [2022] HKCFI 781, §3).  I make an order in terms of §1 of the VO Summons with no order as to costs.

A.  BACKGROUND

4.  The Company is incorporated in the Cayman Islands and is a registered non-Hong Kong company.  Its shares are listed on The Stock Exchange of Hong Kong Limited.

5.  On 24 September 2021, the Petitioner holds the Secured Guarantee Notes due in 2022 (“Notes”) in the principal amount of HK$20,000,000, which is guaranteed by the Company pursuant to a Guarantee and Indemnity dated 29 October 2021.

6.  Events of default occurred, and the Company became liable to pay the amount due on the Notes on 29 March 2022.   

7.  By a statutory demand served on the Company on 4 May 2022 (“SD”), the Petitioner demanded the Company to pay HK$22,892,602.74, being the amount due and payable as of 4 May 2022 (“Debt”).

8.  At the meeting held on 31 May 2022 which lasted until the early morning of 1 June 2022 (“Meeting”), the parties agreed that the Debt would be settled by the Company paying HK$25,000,000 (“Settlement Sum”) to the Petitioner by instalments.  A「和解契約」dated 31 May 2022 (“SA”) was signed by Ms Lo on behalf of the Petitioner and by Mr Jason Chong on behalf of the Company (“Mr Chong”).  Ms Lo is the sole director of the Petitioner.

9.  The SA contains, inter alia, the following clauses:-

“一、 华夏文化 [i.e. the Company] 谨此确认欠曼盛融资 [i.e. the Petitioner] HK$25,000,000 … 此款项已经得到华夏文化的认可，华夏文化承担此款项责任。

二、为偿还该款项，华夏文化同意在本契约签署日提供一张日期为2022 年5 月31 日的HK$2,000,000 支票，并在本契约后两个工作天内向曼盛融资提供总共7 张日期为最后还款日的期票来向曼盛融资支付以下金额：

最后还款日	金额
2022年6月28日	HK$5,000,000
2022年7月28日	HK$3,000,000
2022年8月28日	HK$3,000,000
2022年9月28日	HK$4,000,000
2022年10月28日	HK$4,000,000
2022年11月28日	HK$3,000,000
2022年12月28日	HK$1,000,000

  如果华夏文化未能在签署本契约后两个工作天内向曼盛融资提供期票或提供的期票在某一最后还款日因任何原因未能兑现，华夏文化将被视为立即违反本契约，须立刻偿还所有未偿还欠款，而且所有未偿还欠款部分须自最后还款日起按实际逾期天数缴付年利率24%的利息，并计算复利。

  四、在签署本契约后，[the Petitioner] 同意指示或促使其律师在2022年6月1日向法院提交同意传票 (consent summons) 以撤回清盘呈请(HCCW190/2022)。”

10.  Between 05:30-05:38 and 12:43-13:30 on 1 June 2022, Ms Lo sent various text messages to Mr Patrick Mak (“Mr Mak”), solicitor for the Company, stating that:

(1)  there was an error in the number of shares stated in the SA;

(2)  two further board resolutions of the Company were required to (a) authorise a new settlement agreement; and (b) protect the Petitioner’s rights against “possible hair cut loss in the Soft touch liquidation” (together “CPs”);

(3)  the Petitioner would not withdraw the Petition for the time being; and

(4)  the Petitioner required a cheque covering the first instalment and the legal fee.

11.  In response to Ms Lo’s messages, at 14:02 on 1 June 2022, Mr Mak replied “Ok” and “Will be ready soon”.

12.  On 1 June 2022, 劉學忠 (“Mr Lau”) on behalf of the Company informed the Petitioner that the following 3 items were ready for collection at 32/F, No. 9 Queens Road Central, the Galleria (“Galleria”):

(1)  A cheque dated 1 June 2022 drawn in favour of the Petitioner in the amount of HK$2,000,000 (“1^st Cheque”);

(2)  Another cheque dated 1 June 2022 drawn in favour of the Petitioner’s solicitors in the sum of HK$200,000 (“2^nd Cheque”) as the Petitioner’s legal costs in relation to the SA; and

(3)  A board resolution confirming that the Petitioner’s debt would not be reduced by any hair-cut as a result of the Company’s restructuring (collectively “3 Items”).

13.  The Petitioner did not collect the 3 Items.  Thereafter:

(1)  Mr Lau took a photo of the 3 Items and sent it to Ms Lo by WhatsApp at 5:54pm 1 June 2022;

(2)  Mr Lau informed Ms Lo via WhatsApp messages that the Company’s personnel had been waiting for 3 hours but the Petitioner’s representative did not collect the 3 Items; and

(3)  Mr Lau called Ms Lo but could not get hold of her.

14.  By letter dated 2 June 2022 addressed to Messrs. K.B. Chau & Co (“KBC”), solicitors for the Petitioner, Messrs. Patrick Mak & Tse (“PMT”) recorded the Petitioner’s refusal to collect the 3 Items, and urged the Petitioner to comply with its obligations under the SA and withdraw the Petition.  The letter enclosed the 3 Items. 

15.  In their letter dated 1 June 2022 (received by PMT on 2 June 2022) KBC stated that the Company had failed to provide a cheque of HK$2,000,000 by 31 May 2022, which the Petitioner considered to be a material breach of the SA.  The Petitioner stated that it “shall no longer consider itself bound by the [SA]”, that it would not “provide its consent with [sic] the withdrawal of the [Petition] in the captioned proceedings” and had standing instructions to proceed with the Petition.

16.  By letter dated 2 June 2022, PMT stated that the Company had fully complied with the terms of the SA and the Company was “willing to discuss and adjust the number of involved shares accordingly on the same date”.

17.  In response, in their letter dated 6 June 2022 KBC stated that (1) the 1^st Cheque was not in compliance with the SA as it was not dated 31 May 2022; (2) a representative of the Petitioner went to Galleria on 1 June 2022 but was only allowed to take a picture of the 3 Items; and (3) the Company had not provided 7 post-dated cheques to the Petitioner within 2 days as required by clause 2 of the SA.  The Petitioner took the view that the SA no longer existed. 

18.  In PMT’s letter of 7 June 2022, they pointed out that the SA was signed by the parties on 1 June 2022 and should have been so dated.  However, before the date was rectified, Ms Lo sent the messages which constituted breaches of the SA.  Due to the Petitioner’s breaches, the Company “is not bound by the obligations provided in the [SA]”.  If the Petitioner decided not to comply with the SA, it should not keep the 1^st and 2^nd Cheques.

19.  In their letter dated 9 June 2022, KBC returned the 1^st and 2^nd Cheques to PMT. 

20.  By letter dated 13 June 2022, PMT stated that the Company would like to give a chance to the Petitioner to remedy the breaches; the 3 Items were ready for the Petitioner’s collection and requested the Petitioner to remedy its breaches.  The Petitioner did not respond.

21.  In view of the Petitioner’s refusal to withdraw the Petition, the Company issued the Strike Out Summons.

B.      DISCUSSION

22.  Mr William Wong SC (leading Mr Tony Ko), counsel for the Company, submits that the Petition should be struck out because:

(1)  there is a bona fide dispute on substantial grounds in respect of the Debt;

(2)  the Petitioner’s refusal to withdraw the Petition amounts to an abuse of process; and

(3)  the Company is, and has always been, solvent.

23.  In her 2^nd Affirmation Ms Lo opposes the Strike Out Summons on the following grounds:

(1)  The SA did not reflect the full agreement between the parties and was erroneous[2];

(2)  As it was not possible for the parties to proceed on the basis of the SA, the Petitioner had to “discharge” the SA, and Mr Mak agreed to it[3];

(3)  The board resolutions provided to the Petitioner was only a meeting minutes signed by Mr Chong without the signatures of other board members of the Company.  It is unclear whether the resolutions were properly passed[4];

(4)  Even if the SA is not discharged, by reason of the Company’s breaches, all outstanding sums under the SA became immediately due and payable[5]; and

(5)  The Company is insolvent in view of (a) its failure to pay the Debt or the Settlement Sum; (b) the delay in publishing its audited annual results; and (c) the total liabilities stated in the unaudited results and the prospectus for the rights issue[6].

24.  Mr John Hui (appearing with Mr Billy Liu), counsel for the Petitioner, submits that the Strike Out Summons should be dismissed for the following reasons:

(1)  The Petitioner is a creditor and has locus to pursue the Petition.  The court should not waste time and resources to determine whether the Debt has been compromised;

(2)  The SA has been discharged by the parties by mutual consent before it became operative; and

(3)  The Company is insolvent and the Strike Out Summons serves no useful purpose.

25.  Mr Simon Kwok, counsel for SC, is neutral to the Strike Out Summons but states that SC intends to apply for leave to be substituted as petitioning creditor in the event that the Petition is struck out. 

26.  I shall deal with the issues in turn.

B1.  Whether the Debt is bona fide disputed on substantial ground

27.  Mr Wong accepts that the onus is on the Company to adduce “sufficiently precise factual evidence” to satisfy the court that there is a bona fide dispute on substantial ground in respect of the Debt.  If the court comes to the view that the dispute over the construction of a settlement agreement is not one which can be summarily decided in the companies court, it constitutes a bona fide dispute on substantial ground and the petition should be dismissed (see for eg., Re First GNP Hong Kong Ltd [1995] 2 HKC 380, 384E-G). 

28.  Mr Wong submits that the Debt relied on in the Petition has already been compromised and discharged in that under the SA, the Petitioner agreed to forebear the Debt in return for the Company agreeing to pay the Settlement Sum in the manner provided in the SA.  Reliance is placed on the following principles:

(1)  In Foskett on Compromise, 9^th ed, §§8-03 to 8-07:

“… If the promised or actual forbearance to pursue the claim is construed as being in return for the promised performance of some act by the other party, such agreement will be regarded as one involving the immediate discharge of the claim. Where, however, the promised or actual forbearance is construed as being in return for the actual performance of some act by the other party, the claim forborne will not be discharged until such performance takes place. The propositions may be illustrated by reference to two simple examples:

(a) A agrees not to pursue his claim against B in return for B’s promise to pay A the sum of £10,000 within 28 days;

(b) A agrees not to pursue his claim against B if B pays to A the sum of £10,000 within 28 days.

If B fails to make the payment within the period specified, A’s remedy under (a) would merely be to sue B for damages upon the compromise …

… Where there is a clear and unconditional discharge, abandonment or release of a claim by one party in return for the promised performance by the other of a series of acts, that original claim can never be revived …

Generally speaking, therefore, a compromise agreement will discharge all original claims and counterclaims unless it expressly provides for their revival in the event of breach. Where a party wishes to be able to revive his original claim in the event of the other party’s failure to comply with his obligations under the compromise, he would be well-advised to insist that a term to that effect should be incorporated …”(underlined added)

(2)  In Wealthy Tech Group Holdings Ltd v Yung May Fong Betty and Ors [2021] HKCFI 2966, Recorder Eugene Fung SC said:

“Accordingly, whether or not an original claim can be sued upon as a result of a breach of a compromise is a question of construction of the compromise agreement. This is consistent with the principles relating to accord and satisfaction in the law of contract. In order to establish a valid compromise, it must be shown that there has been agreement (accord) which is complete and certain in its terms, and that consideration (satisfaction) has been given or promised in return for the promised or actual forbearance to pursue the claim: Chitty on Contracts (33^rd ed, 2018) §22-013. As stated by the learned editors of Chitty on Contracts at §22-015, ‘the question is one of the construction of the accord: whether it was intended that the promise itself or the performance of the promise should discharge the original claim’ …” (underlined added)

29.  Mr Hui does not dispute the above principles.  He contends the SA did not compromise the Debt for 2 reasons:

(1)  The SA was “irrevocably discharged by mutual consent of the Company and the Petitioner in the early morning of 1 June 2022, before it ever came into operation” (“Mutual Consent point”); and

(2)  Properly construed, the SA is executory in nature in that the Debt would only be discharged upon full performance of the SA by the Company (“Construction point”). 

30.  So far as the Mutual Consent point is concerned, Mr Hui submits that as a matter of law:

(1)  The circumstances in which a compromise agreement can be discharged include “where the parties agree to release each other from performance or further performance under the compromise (i.e. rescission) whether or not a new agreement is made thereafter” (Foskett, §7-08).

(2)  If a contract is executory on both sides and neither side has performed the whole of its obligations under it, it may be rescinded by mutual agreement, express or implied.  The consideration for the discharge is found in the abandonment by each party of its right to performance or damages.  A contract rescinded by agreement is completely discharged and cannot be revived (Chitty on Contracts, 34^th ed.,§§25-027 & 25-028).

31.  Mr Hui points to Lo 2^nd where Ms Lo says that shortly after the SA had been entered into on 1 June 2022, the Petitioner found that the SA did not reflect the full agreement between the parties[7] in that:

(1)  clause 3 of the SA misstated the number of shares pledged which should be released by the Petitioner upon full repayment; and

(2)  the SA did not record the CPs.  In view of these outstanding items, the Petitioner was not prepared to implement the SA which would otherwise compromise the Debt.  This was agreed to by the Company through Mr Mak’s replies as described in §11 above. 

32.  Mr Hui makes 3 further points:

(1)  The mutual consent to discharge the SA “stands out all the more when the objective context and the importance of the outstanding matters to be agreed are taken into account”.  These include (a) the need to protect the Petitioner’s legal position; (b) the need to negotiate a new settlement agreement to include the CPs to the withdrawal of the Petition; and (c) the parties never agreed on the amount of the legal fees to be borne by the Company.  The SA must be discharged first so that the parties could negotiate on a new settlement agreement. 

(2)  There were subsequent attempts to negotiate a new settlement agreement (as described in §§12 - 20 above), which serve as “strong circumstantial evidence that the SA had already been discharged by mutual consent”. 

(3)  There can be a discharge of a compromise agreement regardless of “whether or not a new agreement is made thereafter” (§30(1) above).  Even though the parties failed to enter into a new settlement agreement following negotiations, this cannot detract the fact that the SA had already been discharged in the early morning of 1 June 2022.  This is particularly so because the Petitioner never provided the Company with any binding promises that a new settlement agreement would be entered into.  Even if there were such promises, an agreement to negotiate would be too uncertain to have any binding force, such that the Petitioner was not obliged to enter into any new settlement agreement with the Company upon the mutual consent to discharge the SA (Courtney & Fairbairn Ltd v Tolaini Bros (Hotels) Ltd [1975] 1 WLR 297, 301, per Lord Denning).

33.  I am unable to see how Mr Mak’s replies can be construed as the Company’s agreement to discharge the SA, given that Ms Lo had not in her messages requested the Company to discharge the SA.  Nor did Mr Mak say that the Company agreed to discharge the SA.  In any event, there is no evidence to suggest that Mr Mak had been authorised by the Company to agree to discharge the SA, even assuming Ms Lo’s messages can be construed as a request to discharge the SA.  Neither did the Company in any of the subsequent correspondence state that it agreed to discharge the SA.   

34.  As regards the alleged deficiencies of the SA and the need to protect the Petitioner, these are not matters which would entitle the Petitioner to regard the SA as having been discharged. 

35.  The Mutual Consent point must fail.

36.  As for the Construction point, Mr Hui submits that as a matter of law:

(1)  Whether or not an original claim can be sued upon as a result of a breach of a compromise is a question of construction of the compromise agreement.  The question is whether it was intended that the promise itself or the performance of the promise should discharge the original claim (Wealthy Tech,§22).

(2)  Whether the settlement agreement was executory in nature or provided for executed performance as satisfaction is entirely a matter of construction.  For a proper construction of the agreement, all the surrounding circumstances, which sometimes are called the matrix of facts, must be considered (Kin Wah J F Construction & Engineering Co Ltd v L & M Foundation Specialist Ltd, CACV28/2005, 28 July 2005, §18).

(3)  As a matter of contractual interpretation, “[t]he fact that a particular construction leads to a very unreasonable result must be a relevant consideration.  The more unreasonable the result the more unlikely it is that the parties can have intended it …” (L. Schuler A.G. v Wickman Machine Tool Sales Ltd [1974] AC 235, 251E, per Lord Reid).   

37.  Mr Hui argues that as a matter of proper construction, the Debt is not intended to be discharged until due and full performance by the Company of its obligations under the SA in view of the following matters:

(1)  The Debt is indisputably owed to the Petitioner.

(2)  There is no express clause in the SA which suggests that the Debt would not be revived in the event of breach.  The SA provides that the Petitioner agreed to procure the filing of a consent summons upon the signing of the SA, this is entirely different from agreeing to an immediate discharge of the Debt.

(3)  The whole purpose of the SA, as reflected by the provision that the Company were to provide 7 post-dated cheques, was to allow the Company more time to repay its indebtedness.  It was not intended to, and would not make any commercial sense, for the Petitioner to discharge the Debt immediately without the counter-performance from the Company. 

38.  I am unable to agree with Mr Hui’s arguments:

(1)  Under the SA, the Debt is compromised and discharged by the Company agreeing to assume a new obligation viz., to pay the Settlement Sum in the manner provided in clause 2. 

(2)  That the Debt is discharged upon signing the SA is reinforced by the wordings of clause 2, which provide that upon the events of defaults stipulated therein, the Settlement Sum will become immediately due and payable. 

(3)  Other than asserting that the SA is executory in nature, Mr Hui is unable to point to any clause which suggests that the SA is executory in nature or that the Debt “is not intended to be discharged until due and full performance by the Company of its obligations under the SA”.  Any such alleged intention is excluded by the “entire agreement” clause under clause 6.

39.  To the contrary, the following clauses in the SA impose an immediate obligation on the parties:

(1)  The Company confirms and assumes the liability to pay the Settlement Sum to the Petitioner (clause 1);

(2)  On the date the SA is signed, the Company is obliged to provide (a) a cheque dated 31 May 2022 in the amount of HK$2,000,000; and (b) 7 post-dated cheques in the amounts stated in the table within 2 working days, failing which the remaining amount will become due and payable immediately and interest will accrue at 24% p.a. on the amount due (clause 2);

(3)  After signing the SA, the Petitioner agrees to instruct or procure its solicitors to file a consent summons for withdrawal of the Petition (clause 4);

(4)  The Company is obliged to pay the legal costs associated with the preparation of the SA including the Petitioner’s costs (clause 7); and

(5)  The Petitioner and the Company are obliged to keep the terms confidence until 28 December 2022 save for the specific purposes stated in clause 8.

40.  The Construction point also fails.

41.  As the Debt has been compromised and discharged by the SA, the Petitioner is not entitled to rely on the Company’s failure to comply with the SD as the basis for proving inability to pay debts on the part of the Company. 

B2.  Abuse of process

42.  Mr Wong submits that the Petitioner’s conduct in pursuing the Petition is vexatious and amounts to an abuse of process.  Upon signing the SA, the Petitioner came under an obligation to withdraw the Petition.  The obligation is not contingent upon the Petitioner having received any cheque or to collect the 3 Items. 

43.  Mr Hui does not really have an answer to the point but contends that the Petition should be maintained in any event given that:

(1)  the Company admits liability to pay the Settlement Sum but has not paid up in full.  By virtue of s.327(4)(d) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) an unregistered company shall be deemed to be unable to pay its debts “if it is otherwise proved to the satisfaction of the court that the company is unable to pay its debts”.  The Petition expressly includes a plea that “it can be inferred that the Company is actually insolvent and should be wound up”;

(2)  the Company is indebted to the SC in the principal amount of HK$2 million under the bond due to mature on 11 May 2023 but became payable on 30 May 2022 when the SC served a redemption notice on the Company; and

(3)  the Company failed to publish its audited annual results for the year ended 31 December 2021, and the indebtedness of the Company and the Group amounted to HK$826,680,000 as at 30 April 2022.

44.  In my view, it is an abuse of process for the Petitioner to continue to pursue the Petition, having agreed to withdraw the Petition upon signing the SA.  There is no reason why the court should allow the Petitioner to act inconsistently with what it had agreed to do under the SA. 

45.  I do not agree with Mr Hui’s contention that the court should nevertheless have regard to the other evidence adduced by the Petitioner and the SC and consider whether the Company is insolvent.  The contention goes against the well-established principle that the issue of solvency of the company would not become relevant unless the court comes to the view that there is no bona fide dispute on substantial ground in respect of the debt (Re Hyundai Engineering & Construction Co Ltd [2002] 2 HKLRD 354, §§27-29; Mann v Goldstein [1968] 1 WLR 1091, 1099). 

46.  In any event, even if, contrary to my view, the court should consider the question of solvency of the Company:

(1)  the only matters identified by the Petitioner as the bases for saying that the Company is deemed unable to pay its debts are the Debt and the failure to satisfy the SD.  As the Debt has since 1 June 2022 been compromised, the Petitioner can no longer rely on the Debt or the SD in establishing insolvency of the Company; and

(2)  the other matters relied on by Mr Hui (§43(1)-(3) above) are not matters referred to in the Petition, and cannot be relied on by the Petitioner. 

47.  It is strictly speaking not necessary to consider whether the Company will pay HK$24 million, being the first 6 instalments fallen due as at 28 November 2022 under the SA.  Nevertheless, Mr Wong states that the Company is ready and willing to pay HK$24 million, and there is no reason why the Petition should be allowed to hang over the head of the Company.

48.  As regards the amount owed to the SC, Mr Wong confirms that the Company does not dispute the debt and is willing to pay the same to the SC within 21 days of the hearing. 

49.  All parties agree that the hearing of the Petition should be adjourned to a Monday morning to see if the debt owed to the SC will be paid.  If this Court considers that the Petition is liable to be struck out, the SC is entitled to apply for leave to be substituted as petitioning creditor there and then.  On this basis, the Petition is scheduled to be heard on 16 January 2023 at 9:30am. 

C.  DISPOSITION AND COSTS

50.  For the reasons set out above, the Petition is liable to be struck out on the ground that it is an abuse of process for the Petitioner to continue to pursue the Petition after 1 June 2022. 

51.  As for costs, I make a costs order nisi that:

(1)  the Petitioner do pay the costs of and occasioned by the Strike Out Summons and the summons for leave to adduce Lo 3^rd to the Company on an indemnity basis, to be assessed by way of gross sum assessment. The Company do lodge and serve a statement of costs within 3 days hereof and the Petitioner do lodge and serve its comments, if any, within 3 days thereafter;

(2)  the Petitioner do pay the costs of the Official Receiver on the Strike Out Summons in the amount of HK$4,100, to be deducted from the deposit; and

(3)  the SC is not entitled to the costs of and occasioned by the hearing on 30 November 2022. 

52.  I shall briefly explain the reasons for the above costs order:

(1)  It seems to me that the Strike Out Summons is one which can be dealt with by one counsel, notwithstanding that both sides are represented by 2 counsel; and

(2)  The hearing on 30 November 2022 is fixed for hearing the substantive arguments of the Strike Out Summons only.  No attempt has been made by the SC to seek leave of this Court to have the Substitution Summons be heard at the same hearing and her attendance is unnecessary. The SC has filed notice of intention to appear and support the Petition on 28 June 2022.  If the court decides to strike out the Petition, the SC will be entitled to pursue the Substitution Summons at the next Monday hearing.