RE CHE SHING ENGINEERING (HK) Ltd

HCCW 608/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 608 OF 2003

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J U D G M E N T

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1. This petition to wind up Che Shing Engineering (HK) Ltd. ("the Company") is presented by Hong Kong Electrostatic Spraytech Ltd. The petitioning debt is based on a judgment in favour of the petitioner in DCCJ No. 4849 of 2002. The amounts owed to the petitioner, which are not in dispute, are HK$271,405.67 with interest and HK$122,743.00 with interest and fixed costs.

2. The judgment was obtained on 12 December 2002. A demand for the debt was served on the Company on 10 April 2003 and the petition herein was presented on 29 May 2003.

3. Two points have been taken on behalf of the Company. Firstly, it was submitted that the verifying affirmation of the petitioner is not in compliance with Rule 26 of the Companies (Winding-up) Rules. The first verifying affirmation was made by one Gan Chi Keung, who is described as a clerk of the petitioner. This deponent produced a certified true copy of the letter of authorisation duly signed and sealed by a director on behalf of the petitioner, authorising him to swear affidavits and sign documents necessary for the presentation of the winding-up petition. As objection was taken to this affirmation, on 8 September 2003, the petitioner has filed another verifying affirmation, this time by one Ching Kin Wai who described himself as a manager of the Company. I am satisfied that a manager of a company can be regarded as "other principal officer" within Rule 26 and there is no irregularity in the verifying affirmation.

4. The other point taken by the Company is that a director of the Company, Mr Kwok Yiu Chung, has filed an affirmation to say that he is prepared to lend HK$110,000 to the Company to assist the Company in paying the petitioner's debt. He also deposed that the Company has cash deposits in two bank accounts in the amounts of HK$198,419.71 and HK$106,957.86 and these sums could be used to pay part of the petitioner's debt. The bank accounts are frozen because of the presentation of the winding-up petition.

5. I understand from counsel who appears for the Company that the Company may seek a validation order to enable it to withdraw the cash deposits from its bank accounts. However, I have not been given any information on the liabilities of the Company other than its debt to the petitioner which, on the admission of the Company, is about HK$435,000. This petition has been adjourned for three weeks on 25 August 2003 to enable the Company to make arrangements to settle with the petitioner.

6. In the circumstances, as no payment is made to an undisputed debt and I have no information on the financial position of the Company, I draw the inference that the Company is unable to pay its debts. I therefore make a winding-up order against the Company. I order that the petitioner's costs are to be paid out of the Company's assets.