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HCCW 49/2021

[2021] HKCFI 1289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO 49 OF 2021

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D E C I S I O N

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1.  I have before me a winding up petition issued by the Hongkong and Shanghai Banking Corporation Limited (“Bank”) seeking the winding up of the Company on the grounds of insolvency relying on a debt of a total amount as at 21 January 2021 (the petition was issued on 25 January 2021) of US$3,743,406.65 and EUR1,483,514.39.

2.  The Company has opposed the petition on various grounds. It seems to me quite clearly none of them are capable of constituting a bona fide defence on substantial grounds I will take as an example, perhaps the more interesting of the arguments in respect of the claims for repayment of a total amount which arises under two different accounts. The account I am referring to is the SMEF Scheme Account (Account no. 808-880553-137). The argument here is that as the account is covered by the Government SME Financing Guarantee Scheme, there is some restriction on the ability of the Bank to recover the balance of the account. It seems to me that this is plainly wrong for a number of reasons. The first is, that the Guarantee Scheme on its face only covers 80% of the total amount of any debt. Secondly, the Scheme has not been introduced in a way which of itself imposes any legal restriction on a creditor seeking repayment of the relevant amount. I was told by Mr Chiu that the way in which the Bank understands the Scheme to operate requires in the first instance the Bank to seek repayment from the debtor and if the Bank is unable to obtain repayment then it can seek a payment from the Government under the Guarantee Scheme.

3.  Thirdly, it seems to me that the terms of the relevant facility clearly do not envisage the Guarantee Scheme in some way restricting the Bank’s ability to demand repayment from the debtor. The relevant facility letter is dated 4 December 2019. In [1] of that letter is stated as follows:

“We are pleased to confirm our agreement to renewing the following banking facility(ies) (the ‘Facility’, which term shall be a reference to any one or more of the following banking facility(ies) as the context may require) under the SME Financing Guarantee Scheme (the ‘Scheme’) operated by HKMC Insurance Limited (the ‘HKMCI’). The Bank shall have an unrestricted discretion to reduce, cancel or suspend, or determine whether or not to permit drawings in relation to, the Facility. The Facility is subject to review at any time, and also subject to the Bank’s overriding right of repayment on demand, including the right to call for cash cover on demand for prospective and contingent liabilities. The expression ‘Facility Letter’ shall mean this facility letter as may be amended, supplemented or replaced from time to time.”

4.  As it is apparent from this paragraph, the Bank is expressly reserving the right to demand repayment on demand when it considers it in its commercial interests to do so. It follows in my view that there is clearly no defence to the claim in respect to the balance of the SMEF Scheme Account and the Company concedes that in any event 20% of the balance is not covered by the Scheme and it is not in a position to repay it.

5.  The Company seeks an adjournment in order to have an opportunity to restructure its debt. There is, however, no restructuring proposal although there is one creditor, United Overseas Bank Limited (“UOB”), which supports an adjournment. UOB is owed very substantially less than the Bank. In these circumstances it seems to me to be a matter for the Bank to decide what is in its own commercial best interests and the likely best interests of unsecured creditors generally. I will, therefore, make the normal winding up order.