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。

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

On 16 September 2021, the Hong Kong Court made an unprecedented ruling by recognising, for the first time, proceedings for the reorganisation of the HNA Group Co Limited (‘Company‘) commenced in Mainland China under the Mainland Enterprise Bankruptcy Law (‘Mainland Reorganisation Proceedings’) (Re HNA Group Co Limited [2021] HKCFI 2897).

John Quicler, a senior associate within our Banking and Finance Litigation team, sets out the recent changes in relation to the presentation of winding-up petitions following the Corporate Insolvency and Governance Act 2020 (Coronavirus) (Amendment of Schedule 10) Regulations 2021 (SI 2021/1029), which came into force on 29 September 2021.

Background

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.

The Hong Kong High Court has handed down its first decision under the pilot measure in relation to the cooperation mechanism for mutual recognition of, and assistance to, insolvency processes between Mainland China and Hong Kong, in Re Samson Paper Company Limited [2021] HKCFI 2151.

Cooperation mechanism

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

When the Petitioner issued the petition to wind up the Company on 12 January 2021, the Company was already subject to another winding up petition in HCCW 410/2019 and the Petitioner was aware of the first petition. The Court reiterated that a creditor should not issue a petition if a petition has already been issued against the relevant debtor company. The Petitioner argued that there are exceptional circumstances, which justified the second petition: Re China Greenfresh Group Co Ltd [2021] HKCFI 36. It was said that the progress of the first petition was dilatory.

“…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