简介

最近在Re Hsin Chong Construction Co., Ltd. [2021] HKCFA 14一案中，终审法院推翻了原讼法庭及上诉法庭（「上诉庭」）的裁决。与上诉庭及原讼法庭的裁决相反，终审法院裁定，于新昌开始清盘后出售其在合营协议项下剩余权利及权益的交易是无效的。

背景

新昌营造厂有限公司（「该公司」）及Build King Construction Limited（「Build King」）于2013年11月订立一份合营协议（「合营协议」），以成立及经营一间合营公司（「合营公司」）。合营公司于2016年6月获得一项大型政府项目合约，其中该公司占65% 权益，Build King占余下35% 权益。

该公司于2017/2018年度开始面临财政困难。2018年8月27日，该公司被入禀清盘，导致该公司的银行帐户被冻结。

The High Court recently dismissed a landlord creditor's application to overturn a company voluntary arrangement (CVA) initiated by coffee shop chain Caffé Nero. Here, we recap the key facts of the case and summarise the highlights of the High Court's ruling.

The facts

In November 2020, Caffé Nero – hit hard by the COVID-19 pandemic – proposed a CVA to creditors to compromise rent arrears (at 30p in the £1) and reduce future rents for the company's premises.

On 29 October 2021, the UK Insolvency Service published its insolvency statistics for Q3 2021. Notably, the number of company insolvencies was 17% higher than in Q2 2021 and 43% higher than in Q3 2020. This was driven by an increase in company voluntary liquidations (CVLs) to the highest quarterly level for 12 years.

Introduction

In the recent case of Chau Cheok Wa v CT Environmental Group Ltd [2021] HKCFI 2602, the Court of First Instance (“Court”) reiterated that for appointment of provisional liquidators pending determination of a winding-up petition, an applicant must establish that there is a good prima facie case for winding-up order at the hearing of the petition and it is right that a provisional liquidator should be appointed in light of the circumstances of the case.

Background

The UK government has lifted the current restrictions on statutory demands but imposed new temporary requirements for winding-up petitions presented from 1 October 2021 until 31 March 2022. The measures aim to protect companies from aggressive creditor enforcement as the economy opens up and other protections are lifted.

New requirements

Introduction

In the recent case of Re Grand Peace Group Holdings Ltd [2021] HKCFI 2361, which concerns the winding-up of a foreign incorporated listed company, the Court of First Instance revisited the 2^nd core requirement and considered whether the possibility of the court making an order to compel the directors of the company to execute the documents necessary for the liquidators to take control of the company’s BVI subsidiaries would be sufficient to be considered as a real possibility of benefit to the petitioner.

簡介

我們於7月的清盤及重組文章中，介紹了中國最高人民法院（「最高人民法院」）與香港律政司司長於2021年5月14日簽署《最高人民法院與香港特別行政區政府關於內地與香港特別行政區法院相互認可和協助破產程序的會談紀要》（「合作機制」），當中訂明了香港法院與深圳、上海及廈門三個試點地區的中級人民法院相互認可破產的程序和人員安排的具體程序。

Introduction

“…it is fallacious and unrealistic for the Company to assume that the value of the Haitian Shares remained the same from February to August 2019. Between February and August 2019, Haitian Energy had published no less than nine announcements suggest that the financial condition of Haitian Energy was in a state of flux, and that the value of the Haitian Shares was susceptible to fluctuation.”

– William Wong SC (Deputy High Court Judge in Re Victor River Ltd)

INTRODUCTION

In a recent judgment, the English court refused to sanction a restructuring plan put forward by oil and gas producer, Hurricane Energy PLC.

Background