DANIEL ISAAC HENRI MIMOUN AND OTHERS v. DRAGON CONCEPT HK LTD AND OTHERS

HCCW 434/2012

[2020] HKCFI 2535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING‑UP) PROCEEDINGS NO 434 OF 2012

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D E C I S I O N

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1.  By summons dated 3 July 2020, the 2^nd respondent applies for certain orders seeking to bring these proceedings to an end. First, an order is sought for the petition to be dismissed, on the ground that the petitioners have failed to provide security in a sum of HK$700,000 or at all for the 2^nd respondent’s costs as ordered by this court on 15 July 2015, alternatively on the ground of want of prosecution.

2.  It does seem to me unacceptable for a set of winding up proceedings to have been stayed for such a lengthy period for failure to provide security for costs.  There has not been any step taken by the petitioners to proceed with their petition.  The 3^rd petitioner, a Hong Kong company used as the 1^st petitioner’s vehicle to hold shares in the company, has itself been wound up for insolvency, and its liquidators have consented to the dismissal of the petition in these proceedings.  The 1^st petitioner’s children (who have been carrying on the petition on behalf of the 1^st petitioner’s estate) and the 2^nd petitioner appear all to reside outside Hong Kong.  They have been served with the present summons and supporting papers (and for the avoidance of doubt I give retrospective leave for service out of the jurisdiction) but they have failed to appear this morning or give any written response to it, from which it seems to me they have abandoned these proceedings.  There is ample basis for dismissing the petition in the circumstances: Sunchase International Group (China) Ltd v Vincor Group of Companies (Investment) Ltd (FAMV 21/2004, 22 February 2005).  I shall therefore dismiss the petition with costs against the petitioners to the 2^nd respondent.

3.  Secondly, an order is sought for the sum of approximately HK$1.52 million paid into court on behalf of the company pursuant to the order of Harris J dated 23 August 2013 be paid out to the company.  There appears to be no dispute that the money has always belonged to the company and that it was paid into court simply because the provisional liquidators of the company were discharged in August 2013 and unable to handle a cashier’s order representing the bank account balance of the company.  Upon the dismissal of the petition, the money paid into court ought to be disposed of.  There will be an order accordingly.