“…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
引言
在Re China Huiyuan Group Ltd [2020] HKCFI 2940一案中，原訟法庭拒絕對一家在香港上市的開曼公司進行清盤，因為原訟法庭認為，呈請人未能證明在作出清盤令後，債權人確實有可能獲得實際利益。
案情
SDFIII Holdings Limited（以下簡稱「呈請人」）以資不抵債為由，發出對China Huiyuan Juice Group Limited（以下簡稱「該公司」）進行清盤的呈請。各方對該債務沒有爭議。
該公司在開曼群島註冊成立，並在香港聯交所主板上市。該公司的資產包括在英屬處女群島註冊成立的附屬公司的所有權，該等附屬公司在中國內地擁有附屬公司，而該等附屬公司又擁有該公司的相關資產，並開展生產及其他業務。
對該公司無爭議的是，該公司已資不抵債。該公司要求押後該呈請，以推進該公司的債務重組。由於股份已暫停買賣，而該公司亦面臨潛在的退市問題，該公司認為重組是令集團業務重回正軌的唯一方法，長遠而言，對該公司的債權人是有利的。
因此，法院將裁定是否立即發出清盤令或批准延期。
爭議點
爭議點如下：-
Over the past year, the Covid-19 pandemic upended many industries. While the construction industry has largely been able to operate throughout the pandemic, albeit with increased and ever-changing restrictions on jobsites, one consequence of these disruptions may be an increase in construction-related bankruptcy filings. Already in 2021, there have been over 70 construction-related bankruptcy filings across the country. For many property owners and real estate developers, these filings create a nightmare scenario where work may slow or even stop entirely.
Introduction
In Re China Huiyuan Group Ltd [2020] HKCFI 2940, the Court of First Instance declined to wind up a Hong Kong-listed Cayman company as the Court held that the petitioner failed to demonstrate that there was a real possibility of a tangible benefit to creditors upon the making of a winding up order.
Facts
SDF III Holdings Limited (the “Petitioner”) issued a petition to wind-up China Huiyuan Juice Group Limited (the “Company”) on the grounds of insolvency. The debt is not disputed.
In general, a company has two bankruptcy alternatives: liquidation under Chapter 7 and reorganization under Chapter 11.
Under Chapter 7, upon the filing of a bankruptcy petition, a trustee is appointed to gather and sell all of the debtor’s assets as quickly as possible. Once the trustee liquidates all of the assets, it must pay creditors in accordance with the priority scheme mandated by the Bankruptcy Code:
In today’s economy, we continue to see bankruptcies occurring in the construction sector. An owner, contractor, or subcontractor in financial distress can easily delay a project — or worse, jeopardize the project in its entirety. Contractors need to understand their rights in order to minimize their exposure in bankruptcy-related situations.
Protecting Contractors — Frequently Asked Questions