In re Chung Sen Property Agency Ltd.

HCCW767/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP NO.767 OF 1998

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R E A S O N S

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1. This is the adjourned hearing of a petition to wind up Chung Sen Property Agency Limited ("the Company"). The petition is based on a statutory demand which is founded on a judgment debt obtained in the District Court by default on 24 July 1998. The Company was ordered to be wound up under the provisions of the Companies Ordinance. The reasons appear below. The Company did not appear and was unrepresented.

2. On 1 December 1998, the Company had filed an affirmation in opposition, stating that the Company would apply to the Court to set aside the default judgment. The ground apparently relied on for setting aside the default judgment is one of improper service.

3. The Company applied unsuccessfully to set aside the judgment on 8 January 1999. Its application for leave to appeal to the Court of Appeal was dismissed on 22 January 1999. The Company's application to the Court of Appeal for leave to appeal is still pending.

4. The judgment debt obtained by the Petitioner is not subject to any stay of execution. What there is pending is only an application for leave to appeal. Even where a judgment is under appeal, the judgment creditor is not precluded from petitioning for a winding-up order. When it comes to the exercise of the court's discretion whether or not to make a winding-up order notwithstanding the pending application for leave to appeal, the court will have regard to whether or not the appeal is bona fide and has a prospect of success. There is nothing in the evidence filed to suggest that the Company has any defence of any substance to the debt claimed. The underlying debt is not a substantially disputed debt : the only point taken is a purely technical one that there had not been proper service on the Company. In all the circumstances, I am not persuaded that there is anything more to the Company's application for leave to appeal other than to buy time. Based on the material before me, it is extremely unlikely that it will succeed on any appeal even if leave were to be granted.