XCHRX RE KENSLAND REALTY LTD.

HCCW 581/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO. 581 OF 2001

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D E C I S I O N

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1. This is the respondent's application to stay its winding-up until 10 October 2001 for the purpose of enabling the respondent to prosecute its appeal to the Court of Final Appeal. That appeal is now scheduled to be heard on 9 and 10 October 2001.

2. The petition for the respondent to be wound up was presented on the ground that it was unable to pay the debt incurred as a result of a Judgment of the Court of Appeal entered on 26 March 2001. A winding-up order was made on 10 September 2001.

3. The Official Receiver became the respondent's provisional liquidator. He indicated that he would seek to vacate the said hearing dates. This is to enable him to properly consider the said appeal regarding matters such as its merits and funding, and generally whether the appeal is beneficial to the general body of creditors. One of the respondent's unsecured creditors and shareholder, a K Y Ltd, applied earlier to vary or set aside the Official Receiver's said indication but that application was refused on 19 September 2001.

4. The petitioner opposes the present application whereas the Official Receiver adopts a neutral stance in relation to it.

5. At the hearing on 10 September 2001 (and before the winding-up order was made), the respondent asked for the winding-up petition to be adjourned until after 10 October 2001, but that application was refused. The petitioner opposes the present application on the ground that it is in essence the same in nature as the earlier application to adjourn when there has not been material change of circumstances.

6. With respect, I disagree. The material change of circumstances was:

(1) the Official Receiver's indication to vacate the hearing dates of the appeal;

(2) a number of undertakings have been given to the court regarding the preservation of the respondent's assets and the funding of the appeal.

7. Ultimately, whether to grant a stay of a company's winding-up is a discretion which should be exercised by asking if it is right (or, put in other words, just and beneficial) to do so.

8. The petitioner has obtained a charging order on the respondent's asset which is said to be of some value. The only likely prejudice to it, if the stay is granted and if the appeal is dismissed, is that the winding-up may be delayed between now and 10 October 2001.

9. On the other hand, the likely prejudice to the respondent, if the stay is refused and if the appeal is meritorious, is that the respondent will be deprived of an early opportunity to have its appeal heard and determined.

10. Taking everything (set out above) into consideration, the discretion should be exercised in granting the stay sought in this application.