PD3.7 Urgent Applications to the Companies Judge

PRACTICE DIRECTION - 3.7

URGENT APPLICATIONS TO THE COMPANIES JUDGE

1. This Practice Direction applies to all urgent applications made to the Companies Judge (as described in paragraph 2 below), including ex parte applications (with or without notice) and inter partes applications.

1.1 In the case of an inter partes application, the summons should be fixed before the Companies Judge or a Judge familiar with company matters unless none of them is available to hear the summons within the next 4 working days, in which case the summons may be fixed before the Summons Judge.

1.2 Where the application arose out of the same dispute, or relates to the same subject matter(s) and/or the same parties in other ongoing proceedings and a Judge has dealt with the substantive arguments in such proceedings, the applicant must in the letter accompanying the application identify the Judge and the proceedings concerned. The Court may direct the application to be heard by the same Judge who has dealt with the matters.   

 

2. The following applications should be made to the Companies Judge:

2.1 An urgent application relating to a matter of the Winding-up and Bankruptcy List. This includes:

(a) An application for an injunction restraining the presentation or advertisement of a winding-up petition;

(b) An application for an appointment of provisional liquidators;

(c) An application for recognition and assistance of foreign provisional liquidators and liquidators; and

(d) An application for a validation order.

2.2 An urgent application in ongoing or anticipated proceedings involving any matter relating to the internal management of companies. This includes:

(a) An application for an injunction to restrain the holding of meeting of directors or shareholders of a company;

(b) An application for an injunction to restrain any person from acting in the capacity of director of a company;

(c) An application for an appointment of receiver and/or  manager of a company;

(d) An application relating to the issuance of new shares, transfer of shares or registration of transfer of shares in a company;

(e) An application in which the standing of a party or intending party to make an application for remedies under Part 14 Division 4 of the Companies Ordinance (Cap. 622) (i.e. statutory derivative action) or common law derivative action is or may be in issue; and

(f) An application for an injunction under Sections 728-729 of the Companies Ordinance (Cap. 622).

 

3. An urgent application should be made in accordance with the procedures set out in paragraphs 14-17 of Practice Directions 11.1. Solicitors are reminded that they should approach the Clerk of Court (instead of the clerk to the individual Judge) when lodging the application at the Registry.

 

4. Other than an urgent application, all other applications made under the Companies Ordinance (Cap. 622), the Companies (Winding-up and Miscellaneous Provisions) Ordinance (Cap. 32) and the Bankruptcy Ordinance (Cap. 6) including paper applications, should be filed with the Registry whereupon the Clerk of Court will fix the date and time for the hearing of the summons or assign the matter to the Companies Judge or a Judge familiar with company matters as appropriate. Solicitors should not approach the clerk to the individual Judge when lodging the application or obtaining a hearing date for the application.

 

5. Practitioners are reminded that an ex parte application (with or without notice) should only be made where there are good grounds (typically the need for secrecy or great urgency) to justify the Court taking the exceptional course of hearing the application in the absence of the other party. Accordingly, the Court may dismiss an ex parte application without any hearing in the following circumstances:

5.1 If the applicant does not file any Skeleton Arguments in respect of the application;

5.2 If the applicant does not in the Skeleton Arguments provide any grounds for making the application on an ex parte basis;

5.3 The grounds provided in the Skeleton Arguments do not justify the Court hearing the application on an ex parte basis;

5.4 If the great urgency is the result of the applicant’s delay and inaction in making the application. This includes where a company waited until the imminent expiry of the 21-day period for compliance with a statutory demand before applying for an injunction to restrain presentation of a petition, or where the applicant knew of the meeting or the act sought to be restrained but failed to make the application until the eve of such meeting or act; or

5.5 The company has the means to avoid a winding-up petition by providing security for the debt, the subject matter of the statutory demand.

 

6. For all urgent applications to the Companies Judge, the applicant must comply with:

6.1 Part B in Practice Direction 11.1 “Materials Required in ex parte Applications for Interim Relief”; and

6.2 Practice Direction 3.8 “Electronic Bundles and Skeleton Arguments for all Applications on Company Matters”, paragraphs 2, 4[1], 5, 6.3-6.7 and 7.

 

This Practice Direction shall take effect on 17 July 2023.

Dated this 30^th day of June 2023.