RE AIM INVESTMENTS (HOLDINGS) LTD

HCCW 64/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 64 OF 2004

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J U D G M E N T

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1. I have before me an application taken out by Aim Investments (Holdings) Limited ("the Company") seeking an order that the petition presented by Tsang Hin Ki Ronald is to be dismissed on the basis that the petition has not been advertised. The application arose in this manner.

2. On 12 January 2004, the petitioner served a demand on the Company for a debt of HK$30 million. On 19 January 2004, the petition herein was presented. On the same day, the petitioner made an ex parte application before Chu J for a Mareva injunction against the Company and an order for appointment of provisional liquidators. A Mareva injunction was granted but the judge directed that the application for the appointment of provisional liquidators should be heard inter partes.

3. On 26 January 2004, Deputy Judge To adjourned the summons for the continuation of the injunction and directed that the application for appointment of provisional liquidators was to be adjourned to an early date to be fixed. In the meantime, the ex parte injunction was to continue.

4. On a day before 18 February 2004, the petitioner passed away. There is no one to represent the estate of the petitioner. Barma J made an order on 18 February 2004 to discharge the ex parte injunction granted on 19 January 2004 and dismissed the petitioner's summons for a continuation of the injunction and for appointment of provisional liquidators.

5. On 12 March 2004, the Company issued the present summons for dismissal of the petition on the basis that it has not been advertised as required by rule 24 of the Companies (Winding-up) Rules. Under this provision, every petition is required to be advertised 7 clear days or such longer time as the court may direct before the hearing and if this is not done within the time prescribed or such extended time as allowed, the appointment of the time and place at which the petition is to be heard shall be cancelled by the Registrar and the petition shall be removed from the file unless a judge or Registrar shall otherwise direct.

6. On 16 March 2004, an order was granted for the solicitors to cease to act for the petitioner. The petition and the summons for dismissal came up for hearing before the Registrar on 17 March 2004. The Registrar did not however make an order dismissing the petition, expressing reservations whether rule 24 would give him the power to do so. I note that unlike Rule 4.11(5) of the Insolvency Rules 1986 in the UK which expressly provides that "if the petition is not duly advertised in accordance with this Rule, the court may dismiss it", no such express power is conferred in rule 24. The Registrar therefore adjourned the petition and the application for dismissal to me. What the Company could have done is to ask the Registrar to strike out the petition for non-compliance with rule 29 of the Companies (Winding-up) Rules. That would clearly be within the power of the Registrar (see Re Royal Mutual Benefit Building Society [1960] 1 WLR 1143).

7. Be that as it may, the application has come before me today. Once a petition has been presented, even if it is not advertised, the petitioner cannot prevent its appearance in the list (see rule 23 of the Companies (Winding-up) Rules). If for any reason other than agreement with the Company, the petitioner does not prosecute the petition, the Company can appear at the petition and have it dismissed with costs against the petitioner (Re Royal Mutual Benefit Building Society).

8. That being the case, I make an order under section 180(1) of the Companies Ordinance, Cap. 32 to dismiss the petition with costs to the Company, including all costs reserved on previous occasions.