Re Jinro (Hk) International Ltd

Judgment Cited authorities (6) Cited in (3) Precedent Map Related
CourtHigh Court (Hong Kong)
Judgment Date04 November 2003
Citation[2004] 2 HKLRD 221
Judgment NumberHCCW1352/2001
Year2003
Copyright noteJudgment sourced from the Hong Kong Judiciary/Hong Kong Special Administrative Region Government.
Subject MatterCompanies Winding-up Proceedings
HCCW001352E/2001 RE JINRO (HK) INTERNATIONAL LTD

HCCW001352E/2001

HCCW 1352/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 1352 OF 2001

____________

IN THE MATTER of JINRO (HK) INTERNATIONAL LTD

AND

IN THE MATTER of the Companies Ordinance (Cap. 32)

____________

Coram: Hon Kwan J in Chambers

Date of Hearing: 4 November 2003

Date of Decision: 4 November 2003

_____________________________

DECISION ON COSTS

_____________________________

1. On 14 May 2003, I handed down judgment in a contested creditor's petition to wind up Jinro (HK) International Ltd ("the Company") after a 3-day hearing from 25 March 2003 to 28 March 2003. I ruled in favour of the petitioners on the only ground of opposition, which related to the locus of each of the petitioners to present the petition as creditors of the Company. I did not make any order to wind up the Company as a letter was received from the petitioners' solicitors after the hearing that they intended to apply for provisional liquidators to be appointed to explore the benefits to creditors of a rescue proposal as opposed to immediate liquidation of the Company. I have reserved the question of costs of the contested hearing and costs of the amendment to the petition sought and granted at the outset of the contested hearing. The hearing today is to resolve the costs reserved.

2. The Company has not appeared at this hearing. Notwithstanding that the hearing date was fixed in consultation with counsel's diaries pursuant to the directions I made on 22 May 2003, it transpires that the Company's solicitors have not in fact instructed counsel to appear. The Company's solicitors have sent a representative to court today on a watching brief. I have heard submissions only from the petitioners' counsel, Mr Bartlett.

3. The petitioners seek the costs of the contested hearing in accordance with the normal rule that costs should follow the event.

4. But for the late amendment made to the petition at the start of the contested hearing, there should have been no difficulty in awarding the entire costs of the hearing to the petitioners who have succeeded on the question of their locus to present the petition. In my view, the amendment sought is of material importance to the petitioners' case. I have summarised the different versions advanced by the petitioners in their petition as regards their claim to be the creditors of the Company in paragraphs 19 and 20 of my judgment in May 2003 and I do not propose to go into the details. Suffice it to say that the previous assertions, although not abandoned, were not relied upon at the hearing and it was on the basis of the latest amendments made (i.e. that the petitioners are "successors and/or assigns [of the Accountholders] and/or equitable assignees of the rights under the Deed of Covenant") that the petitioners rested their case at the hearing.

5. Mr Bartlett recognizes the general rule that when late amendment is made by the plaintiff which has substantially altered the case the defendant has to meet and without which the action would have failed, the defendant is entitled to costs of the action down to the date of the amendment (Hong Kong Civil Procedure 2002, Vol. 1, para 20/8/12; Beoco Ltd v Alfa Laval Co. Ltd & Another [1994] 3 WLR 1179 at 1193A-C, 1194G-H). He submitted that this rule should be departed from in the present situation on two broad grounds.

6. Firstly, a winding-up petition is not the equivalent of a writ and statement of claim. It is not a pleading, see O. 1 r. 4(1) of the Rules of the High Court. The court was urged to adopt a broad and flexible approach. Mr Bartlett cited the cases of Re Playmates Investment Ltd [1996] 4 HKC 577 and Re Richbell Strategic Holdings Ltd [1997] 2 BCLC 429 as examples where the court has adopted a less stringent...

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2 cases
  • BCBC Singapore Pte Ltd v PT Bayan Resources TBK
    • Singapore
    • Court of Appeal (Singapore)
    • 23 October 2023
    ...Te Deum Engineering Pte Ltd [2018] 1 SLR 76 (refd) Hobson v Sir W C Leng & Co [1914] 3 KB 1245 (refd) Jinro (HK) International Ltd, Re [2004] 2 HKLRD 221 (refd) Johnsey Estates (1990) Ltd v Secretary of State for the Environment, Transport and the Regions [2001] All ER (D) 135 (Apr) (refd) ......
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    • Singapore
    • Court of Appeal (Singapore)
    • 23 October 2023
    ...Austrowaren GmbH (formerly CGL Handelsgesellschaft mbH) [1993] 2 Lloyd’s Rep 1 (“Kaines”) at 9; Re Jinro (HK) International Ltd [2004] 2 HKLRD 221 at [12]; Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [22]–[23]. The SICC did not have the opportunity to consi......

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