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ONC Lawyers
Hong Kong

ONC Corporate Disputes and Insolvency Quarterly
Dear Clients and Friends,

This special newsletter aims to regularly 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:
·         5 Corporate Insolvency Cases

·         5 Cross-border Insolvency Cases

·         1 Restructuring Cases

 ·         3 Corporate Disputes Cases

·         3 Bankruptcy Cases
Our selection of cases and our analysis of them may not be exhaustive. Your comments and suggestions are always most welcome. Please feel free to contact me at ludwig.ng@onc.hk

Best regards,

Ludwig Ng

Partner, Solicitor Advocate

ONC Lawyers

 
HEADLINES OF THIS ISSUE
• Corporate Insolvency Cases
1.    To succeed in an unfair preference claim, the question of whether there is the requisite desire to improve the creditor’s or guarantor’s position in the event of an insolvent liquidation must be asked in respect of each person to whom a preference has been given
Re K C K Garment Factory Ltd [2019] HKCFI 585
2.    To validate a post-petition disposition, it must be established at least prima facie that the directors consider the disposition falling within their powers under the company’s constitution, and is necessary or expedient in the interests of the company
Wong Wai Tung v Lam Chun Fung and Another [2019] HKCFI 801
3.    To resist a winding-up petition, the burden of proof lies with the company to demonstrate a bona fide defence on substantial grounds, despite the oddities in the petitioner’s claim
Re Swiss Cosmeceutics (Asia) Ltd [2019] HKCFI 336
4.    First occasion on which the English High Court considered whether a dissolved company can apply for freezing order
Yuzu Hair and Beauty Ltd (Dissolved) v Selvathiraviam [2019] EWHC 772 (CH)
5.    The mere fact that a debt is disputed is not justification to restrain advertisement of a winding-up petition
Kiu Hung International Holdings Ltd v 绵阳合力医疗健康管理有限公司 [2019] HKCFI 1060
• Cross-border Insolvency Cases
6.    Singapore Court recognised US bankruptcy proceedings as foreign main proceedings despite the company being registered in Singapore
Re Zetta Jet Ptd Ltd and others (Asia Aviation Holdings Ptd Ltd, intervener) [2019] SGHC 53
7.    Hong Kong Court granted restructuring power to provisional liquidators appointed in Bermuda by way of assistance
Re The Joint Provisional Liquidators of Hsin Chong Group Holdings Ltd (Provisional Liquidators Appointed) (For Restructuring Purposes Only) [2019] HKCFI 805
8.    Hong Kong Court, for the first time, recognises non-common law insolvency proceedings
Re Mr Kaoru Takamatsu [2019] HKCFI 802
9.    English Court sanctioned the cross-border restructuring of Noble Group Limited
Re Noble Group Limited [2018] EWHC 3092 (Ch)
10.  English Court held that recognition can be granted to solvent winding-up proceedings under the UNCITRAL Model Law on Cross-Border Insolvency
Re Bailey and another (as foreign representatives of Sturgeon Central Asia Balanced Fund Ltd) [2019] EWHC 1215 (Ch)
• Restructuring Cases
11.  Singapore Court of Appeal held that at the leave stage, the applicant-company must unreservedly disclose all material information to assist the court in determining how the creditors’ meeting is to be conducted
Pathfinder Strategic Credit LP and another v Empire Capital Resources Pte Ltd and another appeal [2019] SGCA 29
• Corporate Disputes Cases
12.  Singapore Court of Appeal upheld that there is no presumption that discount should be applied in the valuation of the minority shares in cases involving companies that are not quasi-partnership
Thio Syn Kym Wendy and others v Thio Syn Pyn and another [2019] SGCA 19
13.  Singapore High Court affirms that any term attaching to a buyout order, including applying a discount for lack of control or lack of free transferability, must be just and equitable
Koh Keng Chew & Ors v Liew Kit Fah & Ors [2018] SGHC 262
14.  Singapore Court of Appeal gave guidance on assessing whether to wind up a company on the basis that it has lost its substratum
Ma Wai Fong Kathryn v Trillion Investment Pte Ltd and others and another appeal [2019] SGCA 18
• Bankruptcy Cases
15.  In a section 29 application, the Court has no jurisdiction to order respondent to file an affidavit stating whether documents sought had been in his custody or power, when they were last in his custody or power and reason they were no longer in his custody or power
Re Ho Yuk Wah David (bankrupt) (No 3) [2019] 1 HKLRD 961
16.  Court refused to approach the exercise of discretion to bankrupt a foreigner on the same basis as winding up an overseas company in Hong Kong
Re Dai Guoliang [2019] HKCFI 597
17.  Arbitration clause which purports to restrict or fetter a creditor’s statutory right to petition for the bankruptcy of a debtor is not enforceable as it is contrary to public policy
Re Sit Kwong Lam [2019] HKCFI 920