RE GOLDEN WHEEL TIANDI HOLDINGS COMPANY LTD

HCMP 2713/2024

[2025] HKCFI 3268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2713 OF 2024

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REASONS FOR JUDGMENT

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1.  By Petition presented by Golden Wheel Tiandi Holdings Company Limited (金輪天地控股有限公司) (“Company”), the Company sought sanction of the Scheme between itself and the Creditors under section 673 of the Companies Ordinance (Cap. 622). At the hearing, I sanctioned the Scheme. These are the reasons for my judgment.

A. BACKGROUND

2.  The Company was incorporated in the Cayman Islands and is a registered non-HK company under Part 16 of the Companies Ordinance (Cap. 622). It has a principal place of business in Hong Kong. Since 2013, the shares of the Company have been listed on the Main Board of The Stock Exchange of Hong Kong Limited (“SEHK”) (stock code: 1232).

3.  The Company is the ultimate holding company of a group of companies incorporated in inter alia the Mainland, the BVI and Hong Kong (together “Group”). The Company serves as one of the main offshore financing platforms for the Group and has raised funds to support the subsidiaries’ operations.

4.  The Group is based in Nanjing city and engages in development and management of commercial and residential property and operation of hotels in the Mainland. The Group focuses on developing projects that are physically connected or in close proximity to metro stations or other transportation hubs. It has operations in 8 cities across 2 provinces. As at 3 March 2025, the Group had more than 8 projects for sale located in 6 cities in the Mainland. For the 6 months ended 30 June 2024, the Group recorded a total contracted sales value and sales area of around RMB 276.1 million and around 19,286 m² respectively.[1]

5.  From mid-2021, the Group experienced liquidity pressures arising from the downturn in the real estate market in the Mainland. It conducted a number of liability management exercises including a Cayman Scheme in 2022[2] and has liaised with bank creditors to extend the maturity dates of the Group’s debts.

6.  The Group’s sales and liquidity did not improve despite its efforts. Sales of assets were slower than expected and the Group defaulted on its repayment obligations. The Company failed to pay interest of US$ 23,497,000 under the Existing Notes which had fallen due in October 2022 and subsequently, failed to repay the principal in accordance with the payment schedule. It also defaulted on the Existing Loan.

7.  The Company is insolvent in that as at 31 December 2024, its total assets and liabilities were RMB 3.71 billion and RMB 4.47 billion respectively, while its current assets and current liabilities were RMB 24.75 million and RMB 4.47 billion respectively.[3]

8.  Since 2023 the Company has been taking steps to formulate and implement a proposal to restructure the Existing Debt Instruments (“Restructuring”) and has appointed financial and legal advisers to assist it in the negotiations with the creditors. Since mid-2024, the Company has been in negotiations with an ad hoc group (“AHG”)[4] over the terms of the Restructuring, which led to the signing of a restructuring support agreement (“RSA”) on 21 November 2024. By 24 January 2025, creditors holding over 94.1% of the outstanding principal under the Existing Debt Instruments have acceded to the RSA.

9.  Pursuant to the Convening Order dated 12 March 2025, the Scheme Meeting was held on 3 June 2025 at which 152 out of 155 Creditors in attendance[5], representing 98.33% in value and 98.06% in number, voted for the Scheme.

B. KEY FEATURES OF SCHEME

10.  The Scheme is designed to compromise and release (1) US$ 506.7 million which represent 89.59% of the outstanding principal of the Company’s debts[6], and (2) all the accrued interest of these debts (“Claims”) under the Existing Debt Instruments, which comprise:

(1) Existing Notes: 1 series of 10.0% per annum senior notes due in April 2025 issued by the Company on 11 April 2022 (i.e. a tenor of 3 years) which are governed by New York law. As of 30 June 2024, the outstanding principal was US$ 466 million and accrued interest was US$ 91 million.

(2) Existing Loan: 1 facility agreement with the Company as guarantor, with interest at 15% per annum,[7] which is governed by Hong Kong law. As of 30 June 2024, the outstanding principal was US$ 40 million while accrued interest was US$ 2.7 million.

11.  The following debts will not be compromised by the Scheme as they have been dealt with by the Company with the relevant creditors bilaterally:

(1) Two offshore debts with outstanding principal of RMB 330.96 million owed to Hang Seng Bank of which the Company is either a borrower or guarantor.

(2) One onshore financing arrangement with outstanding principal of RMB 89.5 million owed to Bank of Shangrao of which the Company is a guarantor.

12.  For the purpose of the Scheme, the Group will on or before the RED (defined at §24) implement a restructuring for the purpose of transferring 3 major assets (i.e. Specified Assets, defined in §13 below) into a new corporate structure with “New Notes Issuer” (defined in §15(1) below) holding 95% in “AssetCo”[8] which holds 100% shareholding, direct or indirect, in each of the intermediate holding companies which, in turn, hold 100% equity in each of the 3 subsidiaries established in the Mainland (together “New Issuer Group”) as follows:

13.  The Specified Assets are:

(1) GW Binary Star: A shopping mall and hotel in Shuanglong Avenue, Jiangning District, Nanjing City, with an estimated value of RMB 732.6 million.

(2) GW New Metro: A shopping mall in 1118 Shuanglong Avenue, Jiangning District, Nanjing City, with an estimated value of RMB 424 million.

(3) GW International Plaza: A shopping mall in 8 Hangzhou Road, Gulou District, Nanjing City, with an estimated value of RMB 1,450 million.[9]

14.  Under the Scheme, the Creditors are entitled to receive the following Scheme Consideration:

(1) New Notes: to be issued by the “New Notes Issuer” (defined in §15(1) below) in the same principal amount as the outstanding principal under the Existing Debt Instruments.

(2) New Shares: representing 14.5% of the Company’s issued shares on a fully diluted basis, to be issued to each Creditor in proportion to the amount of its Accrued Interest[10].

15.  The key terms of the New Notes are as follows:

(1) A special purpose vehicle will be the issuer of the New Notes (“New Notes Issuer”).[11]

(2) The New Notes have a tenor of 5 years with interest at 1% per annum interest, payable in arrears in cash or in specie at the election of the New Notes Issuer.

(3) The proceeds from the operation or disposal of the Specified Assets will be used to repay the amount due under the New Notes.

(4) 95% of the Net Cash Proceeds realised from the disposal of the Specified Assets will be deposited into a “Designated Account” within 90 days of receiving the same, which will be applied to pay the principal and interest payable under the New Notes. The remaining 5% will be applied to repay the “Project Loan” (see §16 below).

(5) The New Notes will be secured by first ranking securities over (a) all of AssetCo’s shares, (b) all of the shares of the “New Subsidiary Guarantors”,[12] and (c) a first ranking mortgage over GW Binary Star and GW Metro.

(6) After the disposal of all the assets in New Issuer Group including the Specified Assets but excludes the equity interest in the subsidiaries and “Excluded Assets”,[13] the New Notes and any remaining principal and accrued interest thereon will be cancelled or waived.

16.  The Group and Hang Seng Bank have entered into a loan facility agreement of up to HK$ 272 million (“Project Loan”), which is secured by amongst others a mortgage over one of the Specified Assets, GW International Plaza.[14]

(1) The Project Loan has been applied to refinance some of the offshore debts of the Group. The Group undertakes to fully repay, refinance or extend the Project Loan and procure the release of GW International Plaza within 36 months after the RED and use 90% of the net proceeds from the Wuxi Project to repay the Project Loan.

(2) If the Group defaults in repaying the Project Loan within 36 months or the security interest on GW International Plaza is not fully released, the Group will have to (a) transfer a sum equivalent to the outstanding amount of the Project Loan to the Designated Account or (b) pay a sum equal to the Net Cash Proceeds from the disposal of GW International Plaza to the Designated Account.[15]

17.  Each Creditor’s entitlement (excepting those affected by sanction) to the Scheme Consideration will be determined by the Information Agent, whose determination shall be conclusive and binding.[16]

B1. Consent Fee, Work Fees & Advisors Fees

18.  Creditors who acceded to the RSA by the Consent Fee Deadline[17] will get a Consent Fee equal to 0.1% of the aggregate principal of their Debts[18] as at the Record Time.[19]

19.  The Company will pay working fee of AHG (“AHG Work Fee”) and their advisors fee (“AHG Advisors Fee”) which represent less than 0.2% and 0.3% of the aggregate outstanding principal of the Existing Debt Instruments respectively regardless of whether the Scheme becomes effective.

B2. Third party releases

20.  Upon the Scheme becoming effective, the liabilities of certain third parties (which fall within the definition of “Released Persons”) will also be released. The third parties to be released are:

(1) The Existing Subsidiary Guarantors, which guaranteed the Existing Debt Instruments; and Existing Subsidiary Guarantor Pledgors, whose shares have been pledged to secure the Existing Notes (together “Existing Subsidiary Obligors”). These releases are necessary to ensure that the Existing Subsidiary Obligors would not be able to bring contribution claims against the Company, which would undermine the Scheme (Re Yuzhou Group Holdings Co Ltd [2025] 1 HKLRD 69, §35; Re Powerlong Real Estate Holdings Ltd [2025] HKCFI 271, §38).

(2) The Primary Obligor to the Existing Loan.[20] The release is also necessary to avoid the relevant creditor from bringing claims against the Primary Obligor, which would undermine the Scheme (Re China Aoyuan Group Ltd [2025] HKCFI 310 at §90; Re Unity Group Holdings International Ltd [2022] HKCFI 3419 at §§12(3)-17).

(3) Professional advisers and officers of the Company involved in (a) the preparation, negotiations, sanction or implementation of the Scheme, the Restructuring Documents or the RSA, or (b) the execution of the Restructuring Documents and the carrying out of the steps and transactions contemplated in the Scheme. These releases are reasonably necessary for the implementation of the Scheme as it is unclear if the scope and limits of standard directors and officers insurance policies would cover the acts done by them in relation to the implementation of the Scheme and the Restructuring (Re Yuzhou, §39; Re Powerlong §§44-47).

21.  As submitted by Mr Terence Tai, counsel for the Company, these third party releases are narrower than those considered in Re Noble Group [2019] BCC 349 and Re Powerlong given that cl.9.3(c) of the Scheme specifically carves out any claim or liability against any directors or officers of the Company, the Subsidiary Obligors and any member of the Group for breach of duties or malfeasance not connected to the preparation or implementation of the Scheme or the Restructuring, which will not be released.

22.  As with other schemes of similar structure, the releases of third parties will be achieved by the Creditors authorising the Company to execute Deeds of Releases and such other documents as may be necessary to effect such releases.[21]

B3. Restructuring Conditions

23.  The Scheme will become effective upon the court’s sanction and filing of a sealed copy of the Sanction Order at the Companies Registry. From that day, no Creditor may commence or continue any proceedings against the Company and any Released Persons in respect of their Claims.

24.  However, the Scheme Consideration will only become payable on the Restructuring Effective Date (“RED”), which shall occur within 10 business days following satisfaction or waiver of all the Restructuring Conditions stipulated in clause 15 of the Scheme before the Longstop Date (31 December 2025). If the RED does not occur before the Longstop Date or any extension thereof, the Scheme will terminate as if it has never become effective.[22]

25.  The Restructuring Conditions include:

(1) Obtaining all relevant approvals for the Restructuring to take effect which include registration of the New Notes with NDRC[23];

(2) Payment of Consent Fee;

(3) Compliance by the Company with the Term Sheet in all respects; and

(4) Settlement of all fees and expenses associated with the Scheme.

26.  For Creditors who have not submitted the required documents before the Record Time, their entitlements to Scheme Consideration and Consent Fee will be placed in the “Holding Period Trust” and be distributed or managed in accordance with the relevant trust deed.[24]

B4. Modification clauses

27.  The Scheme contains the following modification clauses:

(1) The Longstop Date may be extended by the Company if it is approved by 75% in value of the aggregate voting claims held by the Creditors,[25] which is the same level required for approval of the Scheme at the Scheme Meeting.

(2) Cl. 24.1 allows modifications at the sanction hearing, where such modifications are imposed or approved by the court.

(3) Cl. 24.2 allows the Company to modify the Scheme after sanction, with the consent of 75% in value of the aggregate voting claims held by Creditors and approval of the court.

(4) Cl. 24.3 enables the Company to modify the Scheme if it is at risk of being contrary to the Applicable Sanctions, provided that any modification does not prejudice the non-sanctioned Creditors’ interests.

C. DISCUSSION

28.  In deciding whether or not to sanction a scheme of arrangement, the court considers the following matters (Re Shimao, §22):

(1) whether the scheme is for a permissible purpose;

(2) whether creditors who were called on to vote as a single class had sufficiently similar legal rights that they could consult together with a view to their common interest at a single meeting;

(3) whether the meeting was duly convened in accordance with the court’s directions;

(4) whether creditors have been given sufficient information about the scheme to enable them to make an informed decision whether or not to support it;

(5) whether the necessary statutory majorities have been obtained;

(6) whether the court is satisfied in the exercise of its discretion that an intelligent and honest man acting in accordance with his interests as a member of the class within which he voted might reasonably approve the scheme; and

(7) if the company which puts forward the scheme is a foreign company, whether there is sufficient connection between the scheme and Hong Kong, and the utility of the court sanctioning the scheme.

C1. Permissible purpose, compliance with directions & statutory majorities

29.  The purpose of the Scheme is to compromise and discharge the liability of the Company under the Existing Debt Instruments, which is a permissible purpose.

30.  The Company has considered and amended the Scheme Document in response to this Court’s comments and concerns raised at the Convening Hearing on 12 March 2025, which included:

(1) The definition of “Majority Scheme Creditors” was changed to Creditors holding 75% in value of the aggregate voting Claims, as opposed to simple majority in value (in line with Re Shimao, §49). This accords with the principle that any change in the Longstop Date or modifications to the Scheme can only be made with the same level of support required for approval of the Scheme. Mr Tai confirms at the hearing that any modification unrelated to the Longstop Date can only be made with the Court’s sanction.

(2) Cl. 15.1(b) is also changed by specifying what approvals are required for the RED to take effect including (a) registration of the New Notes with NDRC, (b) approval by the Company’s shareholders in relation to the Restructuring which involves disposal of substantial assets (i.e. the Specified Assets), and (c) approval by SEHK on listing of the New Shares and the circular relating to the restructuring and formation of the New Issuer Group.

31.  The Company has complied with the Convening Order dated 12 March 2025, which required the Company (1) to distribute the Notice of the Scheme Meeting to the Creditors in a number of ways; (2) to ensure that the Notice contained a link to the Transaction Website where copies of the documents provided to the court or mentioned in the Scheme Document can be obtained by the Creditors; (3) to advertise a notice in substantially similar terms as the Notice of the Scheme Meeting in newspapers; and (4) to procure copies of the Notice and the Scheme Document for inspection (no Creditor has exercised such right).

32.  As stated in §9 above, the Scheme was approved at the Scheme Meeting by the requisite majorities of the Creditors.

C2. Class composition

33.  The key question is whether the rights (as opposed to their commercial or other interests) of the Creditors before and after the Scheme are so dissimilar that they cannot form a single class. The court should adopt a broad approach to avoid giving unjustified veto rights to minority creditors (Re Powerlong, §25).

34.  I accept Mr Tai’s submissions that the Creditors are properly placed in one class.

35.  First, the Creditors’ rights under the Existing Debt Instruments vis-à-vis the Company are not so dissimilar as to fracture the class (Re Hong Kong Airlines Ltd [2022] HKCFI 3792, §15):

(1) The relevant comparison is an insolvent liquidation scenario, where the rights of the Company’s creditors would be the same (Re Haya Holdco 2 Plc [2022] EWHC 1079, §72(1)).

(2) Although the Existing Notes and Existing Loan have different interest rates, the Creditors’ entitlement to interest is included as part of their Claims as at 29 May 2025 and will be waived in exchange for a proportionate share of the New Shares to be issued under the Scheme. There is no inequality in treatment amongst the Creditors.

(3) The difference in the suite of security in favour of the Existing Notes and Existing Loan would not fracture the class as none of them has any value in liquidation scenario:

(a) The share charge over the shares of the Existing Subsidiary Guarantors (in favour of Existing Notes) has no value in liquidation as all the Existing Subsidiary Guarantors are insolvent.[26]

(b) The charge over an offshore account (in favour of Existing Notes) has no value as no fund has ever been remitted into it.[27]

(c) Although the Existing Loan is secured by a second lien over a real property in Hong Kong, the property had already been sold and the proceeds applied to repay the creditor holding the first lien and part of the Existing Loan.[28]

36.  Second, regardless of whether the Creditor is a holder of Existing Notes or Existing Loan, it is entitled to receive the same Scheme Consideration.

37.  Third, the Consent Fee[29] would not fracture the class as all Creditors were given the same right to accede to the RSA, and the amount is very modest as compared to the estimated return under the Scheme (30.2-39.9%), and the estimated return in liquidation (3.2-6.2%) (Re Shimao, §30).

38.  As regards AHG Work Fee, the relevant principles have been summarised in Re Kaisa Group Holdings Ltd [2025] HKCFI 2699, §41, as follows:

(1) Generally, where the payment of a work fee by a company to some creditors independently of the scheme, it would not give rise to a class issue (Re Noble Group, §§131-132, 141; Re Yuzhou, §§29-30).

(2) However, if the work fee is dependent on the scheme taking effect, the court will need to form a view about the materiality of the fee when assessing whether the rights of the creditors who will not be paid the fees are “sufficiently dissimilar that they cannot consult together”. If the fees are immaterial to their decision, then they can consult together (Re Noble Group, §149).

(3) In considering the materiality of the work fee, the relevant comparator is the returns under the scheme and in liquidation, rather than the debts to be compromised under the scheme or the debts owed to some of the scheme creditors (Re Noble Group, §150; Re Yuzhou §§29-30).

39.  In the present case, AHG Work Fee is payable regardless of whether the Scheme takes effect, and its payment is not listed as a Restructuring Condition. It is therefore irrelevant to the class issue.

40.  As for AHG Advisors Fee, this represents reimbursement of the actual costs incurred by AHG in engaging advisors who had been involved in devising the transaction structure and drafting the Restructuring documents. The amount of AHG Advisors Fee was fully disclosed in the ES. In any event, as the Fee is payable regardless of the Scheme taking effect, it would not give rise to a class issue.

41.  Fourth, AHG have the rights under the New Notes to nominate the first sets of 3 “Noteholder Directors” to the Company and the Mainland subsidiaries within the New Issuer Group as well as the “Legal Representative” to the Mainland subsidiaries.[30] This would not fracture the class because:

(1) The officers so nominated owe fiduciary duties to act in the best interests of the company concerned, rather than the person who nominated them (Re Nostrum Oil & Gas Plc [2022] EWHC 1646 (Ch), §§36-37; Re Pizza Express Financing 2 Ltd [2020] EWHC 2873 (Ch), §44).

(2) The nomination rights to AHG are to ensure that independent officers can be appointed to the relevant companies before the RED. These officers will be able to supervise the management of the New Issuer Group, which the parties agreed should be used for the purpose of repaying the amount due under the New Notes.

(3) AHG’s nomination rights only apply to the first appointments. Each year after the RED, the Creditors as a whole will have the right to nominate and vote on the appointment of new Noteholder Directors or Legal Representative to replace or fill any vacancy. Thus, the Creditors will be able to replace any officers nominated by AHG, should they consider it appropriate to do so.

(4) Similarly, the nomination rights initially enjoyed by AHG has been considered in Re Haya, §72(7), and the English court considered that it would not give rise to a class issue.

C3. Sufficiency of information & discretionary factors

42.  The information set out in an explanatory statement must be sufficient for the creditors to assess and form a view as to whether it is in their best interests to vote for the scheme.

43.  Mr Tai submits that the Company has sufficiently explained the Scheme and the Restructuring in the Scheme Document in that:

(1) Section 4 contains a summary of (a) the Existing Debt Instruments to be compromised and (b) the Scheme.

(2) Section 5 explains the background of the Group including its debts compositions and the circumstances leading to the Scheme.

(3) Section 6 explains the Scheme in details including information on costs and expenses of the Restructuring and what the Creditors should do before they may vote at the Scheme Meeting.

(4) Section 8 summarises the key terms of the New Notes.

(5) Section 10 lists the criteria of a Creditor and what needs to be done to qualify as a Creditor under the Scheme.

(6) Section 11 discloses the interests of the directors in the Group and the Restructuring.

(7) Section 12 summarises the risks and uncertainties of the Scheme.

(8) Appendix 3 contains Kroll (HK) Ltd’s analysis on the likely return in a liquidation scenario as compared to the recovery under the Scheme. Though based on the Group’s financial statements as at 30 June 2024 (which showed a better financial position as compared to those made up to 31 December 2024), Kroll confirmed that the difference would not significantly affect its findings in the report.

44.  Mr Tai points out that amongst the Creditors who participated at the Scheme Meeting, 78.55% (in value) are institutional or professional investors, and 98.37% of them voted in favour of the Scheme. Given their professional background, they can be expected to read the Scheme Document and form their own judgment on the merits of the Scheme (Re Helenbergh China Holdings Ltd [2024] HKCFI 2628, §46(1)).

45.  The court would be slow to differ from the majorities’ view as businessmen are much better placed than the court in assessing what is commercially advantageous to them (Re Shimao, §47). I am satisfied that an intelligent and honest man would approve the Scheme given that the return under the Scheme (30.2-39.9%) is much higher than the rate of recovery in liquidation (3.2-6.2%).

C4. International dimension and effectiveness

46.  As the Company is listed on SEHK, the majority of the Creditors are either based in Hong Kong or have participated at the Scheme Meeting, and the Existing Loan is governed by Hong Kong law, there is sufficient connection between the Scheme and Hong Kong.

47.  Although the Existing Notes are governed by New York law and the Gibb’s rule applies,[31] I agree with Mr Tai that this would not undermine the utility of the Scheme given that 96.57% (in value) of the holders of the Existing Notes participated at the Scheme Meeting, thereby submitted to the jurisdiction of the Hong Kong court. The Company does not intend to apply for recognition of the Scheme under Chapter 15 of the US Bankruptcy Code.

48.  Lastly, the Company has complied with most of the Restructuring Conditions such that the RED will soon take place:

(1) The only major regulatory approval which remains outstanding is registration of the New Notes at NDRC. Once the Scheme is sanctioned, the Company will provide the Sanction Order to NDRC in support of its application for registration. The Company has been advised by its lawyers in the Mainland that they do not anticipate any obstacle to the registration of the New Notes.[32]

(2) As for payment of all outstanding fees (Cl. 15.1(g)), the Company has already paid 40% of the total fees in the amount of US$ 6.68 million. The Company expects to pay the remaining fees using the proceeds generated from its business in particular, the proceeds from the pre-sales of the residential apartments (around RMB 50 million), and sales of other completed but unsold residential properties (RMB 23 million), both of which are expected to be released to the Company within this year.[33]

49.  As stated above, for the purpose of implementing the Scheme, the Group will undertake a corporate restructuring exercise and transfer the Specified Assets into the New Issuer Group. This gives rise to a potential issue as to whether such restructuring would be challenged by the creditors outside the Scheme on the basis that it constitutes a preference or transaction at undervalue.

50.  Mr Tai submits that it is most unlikely that the Company would go into liquidation since the debts outside the Scheme only account for 10.41% and 16.07% of the Company’s and the Group’s total indebtedness respectively. The Group’s indebtedness include inter-company debts, and the receivables payable to the Company (RMB 2.9 billion) exceed the amount payable by the Company (RMB 930.6 million)[34] by a very significant margin. The only major creditor outside the Scheme is Hang Seng Bank and the relevant debt is subject to a new bilateral arrangement entered into by the Bank and the Company which extended the timeframe for repayment.[35]