RE SHISEI (PNG) ENTERPRISES CO LTD

HCCW 665/2009

[2018] HKCFI 1535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING‑UP) PROCEEDINGS NO 665 OF 2009

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D E C I S I O N

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1.  Upon the undertaking by the applicants through counsel that they will pay the liquidators’ fees and expenses in the sum of HK$205,000 within 14 days hereof, all further proceedings in the winding up of the company be stayed permanently.

2.  There will be an order in terms of paragraphs 3 and 4 of the summons. 

3.  There will be an order that the applicants do pay the Official Receiver’s costs in the sum of HK$23,200.

4.  The reasons I make the order are that I am satisfied that there appear to be no further outstanding liabilities of the company.  In fact, only two proofs of debt were received by the liquidators even after an advertisement has been placed inviting proofs of debt.  Both of them, one owed to a bank, the Bank of China, and the other owed to the Inland Revenue, have now been paid.

5.  The petitioner’s costs have also been paid in the agreed sum on the evidence.  I am satisfied that there are genuine commercial reasons for a stay of the winding‑up proceedings being principally the need for the company to go back into a going concern in order to dispose of the property it held in Shenzhen.

6.  In addition, I have also taken into account that the liquidators have confirmed that they consider that there are no hidden liabilities and that there are no past affairs of the company that require further investigation.  It seems to me that there are no public interest considerations against granting an order for stay.

7.  As to whether fees are payable upon the value of the property on an ad valorem basis, I think that the question may depend upon a rather more involved analysis of the meaning of realising and bringing into credit within the relevant regulation and their application to the facts of this case.  There may be argument that part of the value has been brought in because of the payment of the debt owed to the bank, but on the other hand I can see contrary argument that the debt was in truth paid by the contributories without employing any resources that had been realised for and on behalf of the company.

8.  I do not think that in these circumstances, in the absence of deeper investigation and argument, the court would be in a position to resolve that, particularly since the parties have come to agreement that the applicants will pay the amount representing an ad valorem fee in respect of the amount of the bank debt.

9.  I have proceeded on the basis therefore that this particular dispute has been dealt with by consensus.

10.  I should mention that the liquidators remain under an obligation to deal with the accounts as mentioned by the Official Receiver in her letter. Any question of release of the liquidators if formally necessary will have to be dealt with upon and after the submission of proper accounts.