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Re Lucky Resources (Hk) Ltd

Judgment Cited authorities 5 Cited in 1 Precedent Map Related
Vincent
Judgment Date11 July 2016
Year2016
Citation[2016] 4 HKLRD 301
Judgement NumberHCCW89/2016
Subject MatterCompanies Winding-up Proceedings
CourtHigh Court (Hong Kong)
HCCW89/2016 RE LUCKY RESOURCES (HK) LTD

HCCW 89/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO 89 OF 2016

____________

IN THE MATTER OF the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Chapter 32), Laws of Hong Kong

and

IN THE MATTER OF Lucky Resources (HK) Limited (瑞豐資源(香港)有限公司)

____________

Before: Hon Harris J in Court
Date of Hearing: 11 July 2016
Date of Decision: 11 July 2016

___________________

D E C I S I O N

___________________

1. I have before me a petition to wind up the company on the grounds of insolvency. The petition states that on 5 February 2016, a final arbitration award was issued in the petitioner’s favour in the sum of US$1,444,499.61 plus interest. On 24 February 2016 the petitioner through its solicitors issued a statutory demand. The petition was issued on 24 March 2016.

2. On 30 June 2016 an affidavit was filed on behalf of the company made by its solicitor setting out grounds for contesting the petition. In paragraphs 22 to 23 of the affidavit it is asserted that the debt is genuinely disputed on substantive grounds, but no grounds for disputing the debt are given other than the one set out in the earlier passages of the affidavit which takes a technical point, namely that the petition has been improperly presented because the petitioner has not made an application pursuant to section 84 of the Arbitration Ordinance (Cap 609) to enforce the award.

3. Mr Maurellet SC who appeared before me this morning on behalf of the petitioner argues that it is clear from the authorities that, the presentation of a winding‑up petition does not constitute enforcement of the award and section 84 of the Arbitration Ordinance is irrelevant. I agree. It seems to me to be clear from the authorities that this court and courts in other jurisdictions have determined the presentation of a petition to wind‑up a company on the grounds of insolvency is the exercise of a class right and does not constitute enforcement of either a judgment or, as is relevant in the present case, an arbitration award.[1]

4. As Mr Maurellet drew to my attention the current position is most succinctly summarised in Applications To Wind Up Companies (3rd ed, 2015), Derek French paragraph 7.61 in which the author says in the...

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