View more from News & Articles or Primerus Weekly

ONC Corporate Disputes and Insolvency Quarterly

Dear Clients and Friends,

This quarterly newsletter is issued four times a year to update practitioners on important and noteworthy cases in the areas of corporate disputes and insolvency in Hong Kong, the UK and other common law countries. In this issue, we have highlighted:

·         11 Corporate Insolvency Cases

 

·         5 Cross-border Insolvency Cases

 

·         2 Restructuring Cases

·          4 Corporate Disputes Cases

 

·          2 Bankruptcy Cases

Our selection of cases and our analysis of them may not be exhaustive. Your comments and suggestions are always most welcome.

Best regards,

Ludwig Ng

Partner, Solicitor Advocate

ONC Lawyers

 

HEADLINES OF THIS ISSUE

•

Corporate Insolvency Cases

1.    Is an arbitration agreement a bar to presentation of winding-up petition? The latest Hong Kong position
 

Re Southwest Pacific Bauxite (HK) Ltd [2018] HKCFI 426

2.    The Singapore High Court declines jurisdiction under its insolvency regime in favour of overlapping arbitral proceedings

 

Takenaka Corp v Tam Chee Chong and another [2018] SGHC 51

3.    Creditor who relies on a debt which is subject to a contingency which cannot arise if the company is insolvent has no locus to present the winding-up petition

 

Re Golden Gate International Kindergarten and Nursery Ltd [2018] HKCFI 641

4.    English Court held that administrators who paid their fees and expenses ahead of other expense creditors were not guilty of misfeasance, because their fees were paid out of third party funding, which is not company property
 

MK Airlines (in liquidation) [2018] EWHC 540 (Ch)

5.    Someone with a purely proprietary claim to assets held by or on behalf a company is not its “creditor”
 

Lo Kwong Hung and Others v The Registrar of Companies HCMP 1520/2016

6.    English High Court considered the relevant principles in assessing a cross-claim against the petitioning creditor which is said to exceed the value of the uncontested petition debt
 

LDX International Group LLP v Misra Ventures Limited [2018] EWHC 275 (Ch)

7.    Directors are entitled to be indemnified against expenses bona fide incurred by them in the due execution of their duties and hence become creditors of the company

 

Lau Reimer Mary Jean v Ting Wai Monastery Ltd HCCW 286/2017

8.    Fully-paid up shareholder held as contributories and are entitled to inspect proof of debt in compulsorily wound up companies if it can show legitimate interest in doing so
 

Burnden Group Holdings Ltd v Hunt [2018] EWHC 463 (Ch)

9.    Supreme Court of UK – No limitation period applies where directors misappropriated company assets

 

Burnden Holdings (UK) Limited (Respondent) v Fielding and another (Appellants) [2018] UKSC14

10.  There is no general rule that the court will not hear a party in contempt.  The proper approach is to ask whether the interests of justice in the particular case are best served by hearing the party in contempt or refusing to do so

 

China Medical Technologies, Inc. (in liquidation) v Samson Tsang Tak Yung [2018] HKCA 112

11.  English High Court ordered the identity of the funders to be disclosed in a litigation as early as in the stage of application for security for costs

 

Re Hellas Telecommunications (Luxembourg) [2017] EWHC 3465 (Ch)

•

Cross-border Insolvency Cases

12.  Recognition order granted to foreign insolvent liquidation commenced by a shareholders’ resolution
 

Re The Joint Liquidators of Supreme Tycoon Limited (In Liquidation in the British Virgin Islands) [2018] HKCU 492

13.  English Court does not have jurisdiction under the Cross-Border Insolvency Regulations 2006 to permanently stay legal proceedings or enforcement action in respect of English law debt obligations owed by a foreign debtor
 

Bakhshiyeva v Sberbank of Russia and others [2018] EWHC 59 (Ch)

14.  Court of Appeal confirmed that in an appropriate case, the failure to satisfy the third core requirement would not be fatal to the making of a winding-up order, if the company’s connection with Hong Kong is sufficiently strong and the benefit of making a Hong Kong winding-up order is sufficiently significant
 

Re China Medical Technologies, Inc. (in liquidation) v Samson Tsang Tak Yung [2018] HKCA 111

15.  In assisting foreign insolvency officeholders, a balance has to be drawn between the foreign insolvency officeholders’ need for convenience and the need for supervision which the creditors may expect
 

Re The Joint Provisional Liquidators of China Lumena New Materials Corp (In Provisional Liquidation) HCMP 494/2017

16.  Singapore High Court declined to accord full recognition of insolvency proceedings commenced in the United States, on the basis that the foreign insolvency proceedings did not comply with a Singapore court order
 

Re Zetta Jet Pte Ltd and Others [2018] SGHC 16

•

Restructuring Cases

17.  Court held that the reliance on Re Legend to discharge the provisional liquidators on the basis that the power of the provisional liquidators came to an end when the restructuring exercise became their only purpose is misconceived
 

Re China Solar Energy Holdings Ltd [2018] HKCFI 555

18.  Liquidators are duty bound to account strictly for the work for which they seek to be paid, and to produce relevant documents and information supporting their claim
 

Re The Grande Holdings Ltd HCCW 177/2011

•

Corporate Disputes Cases

19.  Removal of information from the Companies Registry is to be ordered only if the applicant can show that the continuing presence of the incorrect information will cause material damage to the company and that the company’s interest in removing the information outweighs the interest of other persons in the information continuing to appear on the register
 

Cheer Holdings Ltd and Another v Cheung Kin Wah [2018] HKCFI 404

20.  Singapore Court of Appeal confirmed that where an exit mechanism is available, applicant would be unable to establish the unfairness required for the court to exercise its “just and equitable” jurisdiction

 

Perennial (Capitol) Pte Ltd and another v Capitol Investment Holdings Pte Ltd and other appeals [2018] SGCA 11

21.  Director who caused the company to oppose application for derivative action may be held personally liable for costs if the opposition is found to be unjustified
 

Tang Siu Choi v Man Lung Textiles Ltd and Another [2018] HKCFI 125

22.  There is no general rule in cases involving companies that are not quasi-partnership as to whether discount should be applied in the valuation of the minority shares. The court must look at all the facts and circumstances
 

Thio Syn Kym Wendy v Thio Syn Pyn [2018] SGHC 54

•

Bankruptcy Cases

23.  English High Court –  In calculating loss and claiming compensation for void disposition in bankruptcy, the date from which the loss in value should be calculated was the date on which the trustee in bankruptcy would have been actually able to sell the relevant property for the benefit of the estate if it had not been wrongly transferred
 

Ahmed and others v Ingram and another [2018] EWCA Civ 519

24.  A foreign judgment must first be registered before it can be used as a basis for issue of a statutory demand in bankruptcy proceedings
 

Re James Chor Cheung Wong HCB 1048/2017