IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
COMPANIES (WINDING-UP) NO. 378 OF 2004
||IN THE MATTER of YUEN CHAK CONSTRUCTION COMPANY LIMITED
||IN THE MATTER of the Companies Ordinance, Cap. 32
Before: Hon Kwan J in Court
Date of Hearing: 2 December 2004
Date of Judgment: 2 December 2004
J U D G M E N T
1. This is a petition presented by Madam Cheng Ying Hung, trading as Po Shing Company, to wind up Yuen Chak Construction Company Limited (“the Company”). The petitioner is a judgment creditor, having obtained judgment against the Company in HCA No. 411 of 2001 on 12 June 2003, after a four-day trial before Deputy Judge Muttrie, in the sum of HK$928,397.85.
2. The Company seeks an adjournment of the petition pending its application to reinstate its appeal against the judgment. It has lodged an appeal for this purpose in CACV No. 202 of 2003. This was dismissed in its absence on 12 March 2004. I understand the application for reinstatement has been fixed to be heard on 11 March 2005.
3. There are three supporting creditors. They are all former employees of the Company and all are judgment creditors. The total amount due to them is in the region of HK$850,000.00.
4. I will first set out the relevant background matters.
5. The petitioner’s claim against the Company in the High Court Action was for the balance of the price of petroleum products sold and delivered by the petitioner at the request of the Company between July 2000 to December 2000, in the amount of HK$928,397.85. The Company counterclaimed against the petitioner for damages for delay in the delivery of goods of HK$3.9 million odd. On 12 June 2003, judgment was given in favour of the petitioner and the counterclaim was dismissed. The judgment is primarily on findings of fact.
6. On 10 July 2003, the Company applied for a stay of execution of the judgment pending an appeal to be brought. A notice of appeal with 19 grounds of appeal was filed on 23 July 2003.
7. The application for stay pending appeal was heard by Deputy Judge Muttrie on 10 October 2003 and was dismissed. In his Reasons for Judgment, the judge noted that the appeal is mainly on questions of fact and would appear to be a difficult one to pursue. He did not think the grounds of appeal are so strong as to justify a stay on their own. As for the Company’s contention that it would be forced into liquidation if a stay were not granted and would thereby suffer loss which could not be compensated if its appeal should succeed, the judge did not think this contention would tally with the Company’s accounts that had been placed before the court, given that the judgment sum was less than HK$1 million and the Company would appear to have HK$9.8 million worth of assets according to its accounts. He was not satisfied that a good cause for stay pending appeal had been made out. The Company had failed to demonstrate that the appeal would be rendered nugatory without a stay.
8. The Company filed a notice of appeal against the dismissal of the stay application pending appeal. This is CACV No. 315 of 2003. No steps have been taken to set down the hearing of this subsequent appeal.
9. On 1 March 2004, the former solicitors of the Company wrote to the Company referring to the appeal in CACV No. 202 of 2003 to be heard on 12 March 2004 and stating that as they had not received any instructions from the Company in relation to the settlement of the appeal, they had issued a summons to cease to act. The summons and the supporting affirmation were served on the Company with the letter. The application for the solicitors to cease to act was granted on 5 March 2004, the Company was absent at this hearing. It was notified of the order for discharge by a letter of the court of the same date.
10. On 8 March 2004, the Company applied to a Master for leave to act without a solicitor. It is not entirely clear if the application was for leave to act in the appeal or merely for leave to act in an application to adjourn the appeal. The application was refused by the Master on 9 March 2004. On 8 March 2004, the Company by its director Ho Kwok Wa (“Mr Ho”) made an affirmation to apply for an adjournment of the appeal on the ground that its solicitors had “resigned” since 1 March 2004 and that it needed time to look for a suitable lawyer. On 9 March 2004, the clerk of Rogers VP wrote to the Company referring to its letter dated 6 March 2004 and informed the Company that the Court of Appeal was not disposed to grant any adjournment of the appeal.
11. On 10 March 2004, the Court of Appeal informed the parties by letter that the appeal would be heard at 9:30 a.m. instead of 10 a.m. on 12 March 2004. That letter was sent to the Company by fax on 10 March 2004 at 3:38 p.m. and by post, in the same way as previous letters dated 5 March 2004 and 9 March 2004 were sent to the Company. Mr Ho however claimed that the Company did not receive this letter. He did not arrive in court on time. The appeal was dismissed in the absence of the Company.
12. Mr Ho wrote to the court on 12 March 2004 requesting the appeal be “rescheduled” for hearing, as he had no notice that the time for the hearing of the appeal had been put forward by half an hour. The Court of Appeal replied by letter on 15 March 2004 refusing the request, as there was no notice that any solicitors had been appointed to act for the Company and no leave was given for any director to represent the Company in the Court of Appeal. It is quite clear it would be of no avail even if Mr Ho had attended court in time, as the Court of Appeal has no jurisdiction to entertain an application for leave for a director to represent a company or to entertain any appeal from a Master’s refusal of leave (Kone Elevator (HK) Ltd v Senfield Ltd, CACV No...