SUPER SPEED LTD (IN LIQUIDATION) v. BANK OF BARODA

HCCW 273/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO. 273 OF 2012

___________________

__________________

________________

D E C I S I O N

________________

1. There are 2 applications before the court made by the Joint and Several Liquidators (“Liquidators”) of Super Speed Ltd (“Super”) and Marshel Exports Ltd (“Marsel”) against Bank of Baroda (“Bank”) for :

(i)   Declarations that the loans made by the Bank to Super and Marshel after 3.8.2012^[1] (referred to by the Liquidators as “Post-Petition Loans”) are void under section 182 of the Companies (Winding Up and Miscellaneous) Ordinance, Cap 32 (“S 182”) and be set aside;

(ii)   Declarations that the charges/mortgages by reason of and/or resulting from the Post-Petition Loans against (a) Super’s property at Office No. 02 on 9^th Floor, Empress Plaza, Nos. 17-19, Chatham Road South, Kowloon, Hong Kong (“Super Property”) and (b) Marshel’s property at Office Nos. 01 and 08 on 9^th Floor, Empress Plaza, Nos. 17-19, Chatham Road South, Kowloon, Hong Kong (“Marshel Property”) are void under S 182 and be set aside.

Factual background

2. The facts are not in dispute and they can be briefly stated as follows.

3. Both Super and Marshel are the Bank’s customers.  Marshel opened its bank account with the Bank on 28.7.2007 whereas Super’s account was opened on 24.8.2007.  At all material times, Mr Sharma Nipun, a director of both companies, operated the 2 bank accounts on behalf of the 2 companies.

4. On 17.9.2007, Marshel granted a first mortgage over the Marshel Property in favour of Dah Sing Bank Limited to secure “all monies” in respect of general banking facilities and interest (“Dah Sing Mortgage”).  On 7.8.2008, Marshel granted a second mortgage over that property in favour of the Bank to secure all monies obligations and liabilities owing or incurred by Marshel (“Marshel Mortgage”).

5. On 25.10.2007, Super granted a mortgage over the Super Property in favour of the Bank to secure a term loan in the sum of HK$3,500,000.  In around October 2010, that mortgage was discharged and on 28.10.2010, Super granted a new legal charge/mortgage over the same property in favour of the Bank to secure “all monies” in respect of general banking facilities and interest (“Super Mortgage”).

6. On 3.8.2012, 2 creditor’s winding-up Petitions were issued, one against Super and the other against Marshel.  On 24.10,2012, both companies were wound-up.

7. Prior to the making of the winding-up orders, the Bank was informed by the solicitors acting for Super and Marshel on 11 September 2012 that winding-up Petitions were presented against them.

8. In January 2013, the Liquidators requested the Bank for information on the loans that the Bank had advanced to Super and Marshel.

9. On 8.7.2013, the Bank submitted proofs of debt in respect of both Super and Marshel to the Liquidators.  The sum due from Super was US$1,110,607.46 or HK$8,618,313.89 whereas the sum due from Marshel was US$1,665,338.03 or HK$12,923,023.12.

10. It is common ground that the Bank had advanced loans to both Super and Marshel after 3.8.2012.  Further, the Bank acknowledges that despite the fact that it became aware of the winding-up Petitions against Super and Marshel by 12.9.2012 (the Liquidators contend that the Bank had constructive knowledge of the Petitions on 24.8.2012 when they were gazetted), it nevertheless continued to advance further loans to the 2 companies.

11. In respect of Super, the Bank had advanced a total of US$743,534.74 (principal) to it between 24.8.2012 and 18.9.2012 :

Date of Loan	Principal Amount of Loan (US$)
24.8.2012	44,368.35
12.9.2012	97,464.90
13.9.2012	93,100.80
14.9.2012	34,320
14.9.2012	61,582.30
17.9.2012	59,157.80
17.9.2012	70,310.50
18.9.2012	68,370.90
18.9.2012	40,731.60
18.9.2012	66,673.75
19.9.2012	21,868.99
19.9.2012	85,584.85
Total:	743,534.74

12. As for Marshel, the Bank had advanced a total of US$1,655,671.03 (principal) to it between 23.8.2012 and 28.9.2012.

Date of Loan	Principal Amount of Loan (US$)
23.8.2012	41,467.03
24.8.2012	147,004
19.9.2012	105,120
20.9.2012	104,000
20.9.2012	103,200
21.9.2012	101,600
21.9.2012	100,800
21.9.2012	100,480
26.9.2012	124,000
26.9.2012	123,200
27.9.2012	122,400
27.9.2012	121,600
28.9.2012	120,960
28.9.2012	120,640
28.9.2012	119,200
Total:	1,655,671.03

13. On 28.11.2013, the Liquidators issued the Summonses in respect of the 2 applications that are before this court.

S 182

14. S 182 provides as follows :

“In a winding up by the court, any disposition of the property of the company, including things in action, and any transfer of shares, or alteration in the status of the members of the company, made after the commencement of the winding up, shall, unless the court otherwise orders, be void.”

The arguments

15. With respect, the Liquidators’ arguments are quite difficult to understand.  In respect of the Post-Petition Loans, the Liquidators stated in their skeleton submissions that they are no longer pursuing the argument that those loans were dispositions of the 2 companies’ respective assets but they are maintaining that what they refer to as the “Post-Petition Charges”[2] were dispositions of the 2 companies’ assets. 

16. However, in their reply submissions, it was stated that the above concession is a mistake. 

17. As regards the Post-Petition Charges, what is contended by the Liquidators is that the Post-Petition Loans have reduced the equity in the mortgaged properties belonging to Super and Marshel and such reduction constituted dispositions for the purpose of S 182. 

18. Clearly, the Post-Petition Loans and Post-Petition Charges go hand-in-hand.  However, it is very difficult to see how the former can constitute dispositions of the assets of Super and Marshel when, in truth, assets were transferred to them by the Bank.  The kernel of the disputes in these applications concerns the “enlargement” of the charges over Super Property and Marshel Property as a result of the Post-Petition Loans.  Hence, the resolution of these applications will determine whether the Bank is a secured creditor in respect of the Post-Petition Loans.

19. The Liquidators’ case is heavily relied upon the view taken by Professor Goode set out in his book Principles of Corporate Insolvency Law, 4^th edn, at para 13-133 :

“My contention, then, is that s.127[3] can never apply solely by reason of the drawing on an overdrawn account. In Coutts & Co v Stock, Lightman J. entertained no doubt that an increase in the company’s overdraft fell outside s. 127. However, it does not follow that use of an overdraft can never give rise to a disposition of the company’s property. There appear to be at least three cases where it does. The first is where the bank holds security for future advances, for an increase in the overdraft automatically expands the quantum of the bank’s security interest, and correspondingly reduces the company’s equity in the charged assets, unless these were already charged to their full value at the time of the further drawing on the account. …”

20. The Bank’s response is, in gist, as follows :

(i)   Firstly, it is not necessary for this court to decide whether Professor Goode’s opinion is correct.  The reason being that on the evidence both the Super Property and the Marshel Property were already charged to their respective full value when each of the Post-Petition Loans was advanced.  Therefore, there could not have been any reduction in Super’s or Marshel’s equity in their Properties.

(ii)   Secondly, the Bank says that Professor Goode’s opinion is wrong in law.

Were the Super Property and Marshel Property charged to their full value?

21. I should say at the outset that the case of the Liquidators is greatly handicapped by the absence of any expert evidence on their side to counter that adduced by the Bank.

22. According to the expert evidence adduced by the Bank, Super Property is valued at HK$5,300,000 (US$679,487) as at 24.8.2012.  To work out the value of that property as at September 2012, Mr Chan, who appeared for the Bank, submitted that the said valuation should be increased by 7.4% to reflect the price increase between August and September 2012.  The price becomes US$729,769 with that adjustment.  The 7.4% comes from the statistics from the Rating and Valuation Department (“RVD”) produced by the Liquidators.

23. Instead of adducing their own expert evidence, what the Liquidators did was to extrapolate the price for the Super Property based, firstly, on an offer dated 3.12.2013 to purchase both the Super Property and the Marshel Property at HK$24,045,000.  Based on the respective gross floor area of the 2 properties, the Liquidators worked out that the offer price for the Super Property was HK$7,607,460 (US$975,000).  Secondly, the Liquidators rely upon the statistics from the RVD to show that the average prices for Grade B offices in the Tsim Sha Tsui area, to which the Super Property belongs, went up by 14.94% between August 2012 and August 2013.  With those data, the Liquidators then worked out the estimated value of the Super Property as at August 2012 to be US$848,543. 

24. Further, by making an upward adjustment of 7.4% the estimated value of the Super Property as at September 2012 becomes US$911,335.

25. In respect of the Marshel Property, the Bank’s valuation evidence is that it was worth HK$11,500,000 (US$1,474,359) as at 23.8.2012.  With the 7.4% increase, the value as at September 2012 becomes US$1,583,462.

26. With the same exercise, the valuations extrapolated by the Liquidators for the same property are US$1,833,458 as at August 2012 and US$1,969,134 as at September 2012.

27. Before I deal with the debts owed under the Super Mortgage and Marshel Mortgage, I should say that I am not inclined to accept the Liquidators’ valuation evidence in preference over the Bank’s expert evidence.  The latter is in the form of “abbreviated” valuation reports.  I do not find them entirely satisfactory because whilst they referred to a “Direct Comparison Approach” as the valuation method, there is no mention of any comparable which had been considered. However, the extrapolation exercises carried out by the Liquidators can, at best, only provide a rough idea on the market prices in question.  Therefore, and not without reluctance, I prefer the Bank’s evidence.

28. As regards the debts owed to the Bank, as at 3.8.2012 (date of Petition) the total principal sum due from Super to the Bank stood at US$2,231,878.22.

29. Between 23.8.2012 and 19.9.2012 (the period during which the Post-Petition Loans were advanced to Super), the daily total principal sum due from Super to the Bank fluctuated between US$1,167,597.54 (the lowest) and US$2,231,878.22 (the highest).

30. According to the Bank’s evidence, the total principal sum that remains due from Super to the Bank is US$1,092,942.53.

31. In the case of Marshel, as at 3.8.2012 the total principal sum due from Marshel to the Bank stood at US$2,904,287.03.

32. Between 22.8.2012 and 28.9.2012, the daily total principal sum due from Marshel to the Bank fluctuated between US$1,521,101.85 and US$2,726,895.

33. The current total principal sum due from Marshel to the Bank is US$1,655,777.44.

34. In addition, the outstanding principal and interest calculated up to 28.9.2012 due from Marshel to Dah Sing Bank, which was and is secured by the Dah Sing Mortgage, stood at HK$4,767,643.20 (US$611,236).

35. On the basis of the above figures, the lowest amount of the combined sum that Marshel owed to Dah Sing Bank and the Bank between 22.8.2012 and 28.9.2012 is in the region of US$2,132,337.85 (US$1,521,101.85 + US$611,236).

36. The above evidence of debts is not disputed.  In the light of those figures, it is quite plain that both the Super Property and Marshel Property were at all material times charged to their full value. 

37. Indeed, Mr Chung, who appeared for the Liquidators, recognised the difficulty of his case in this regard.  However, he sought to argue that there were substantial repayments which had been made by Super (and Marshel) to the Bank and those repayments have somehow changed the picture.  I regret to say that I am unable to understand the submission.  The repayments in the case of Super had been set out in a table at bundle A, pp 1068-1069).  Looking at that table, I cannot see how the repayments contradict the proposition that the Super Property was charged to its full value at all material times.  The same can be said for Marshel (see bundle C, pp 5069-5071).

38. In the premises, I am satisfied that there was no reduction of the equity in the Super Property and Marshel Property which belonged respectively to Super and Marshel, and therefore no disposition which fell within by S 182. 

39. It is unnecessary to deal with the arguments on the validity of Professor Goode’s opinion.

40. Accordingly, these applications are dismissed with costs to the Bank.