Case: The joint administrators of African Minerals Limited (in administration) v Madison Pacific Trust Limited and Shangdong Steel Hong Kong Zengli Limited (HCMP 865 of 2015)

The Protection of Wages on Insolvency Fund (the "Fund") was established in 1985 to provide timely relief in the form of an ex gratia payment to eligible employees affected by the insolvency of their employers, for example where employees' severance payments are withheld pending winding-up proceedings. Section 16(2) of the Protection of Wages on Insolvency Ordinance (the "Ordinance") provides that the Commissioner for Labour shall not make payment out of the Fund of amounts exceeding certain caps.

Given the nature of their businesses, shipping companies may be involved as respondents in arbitration proceedings in different jurisdictions. As arbitrations tend to be lengthy procedures, a claimant to such proceedings may want to explore whether there are any quicker routes they can take to recover their losses. One such option they might consider is bringing a winding up petition against the company.

It has long been considered that lenders under a syndicated facility retain a right to seek to recover their portion of a loan directly following a payment default, typically by seeking the winding up of obligors. This is based on the several nature of the rights of finance parties which appears in clause 2 of the standard LMA terms. 

The case of Re Company A-E [2015] HCMP 2019/2015 demonstrates that the Court will take a practical approach in determining whether a funding arrangement infringes upon the common law rules against maintenance and champerty. The Court will consider commercial factors, such as the underlying rationale for the funding arrangement and the commercial character of the funder, alongside its analysis of the common law principles.

A bankrupt can be required to pay a portion of his income earned during the bankruptcy to his or her trustees by way of a contribution to the bankrupt estate. Such payments can be fixed by the court pursuant to section 43E of the Bankruptcy Ordinance (Cap 6 of the Laws of Hong Kong) or agreed between the bankrupt and the trustees on an informal basis, and are calculated after assessing the bankrupt's reasonable expenses.

Recent developments

The Hong Kong Government has released its major proposals for introducing a new statutory corporate rescue procedure. At the same time, it has published the consultation conclusions for improving the corporate insolvency and winding up provisions in the Companies (Winding Up and Miscellaneous Provisions Ordinance) (Chapter 32) (“C(WUMP)O”). The Government plans to introduce an amendment bill into the Legislative Council in 2015.

Implications for companies

On 17 July 2014, the Hong Kong Court of Final Appeal gave judgment in the case of Moulin Global Eyecare Holdings Limited (in liquidation) (formerly known as Moulin International Holdings Limited) v Olivia Lee Sin Mei FACV No. 23 of 2013,providing helpful guidance on the expiry of applicable limitation periods.

Background

Did you know that a liquidator of a foreign company may seek the assistance of the Hong Kong Court to obtain orders for the production of information which orders are, in substance, of the type made in Hong Kong windings-up under section 221(3) of the Companies (Winding-up and Miscellaneous Provisions) Ordinance?

The recent case of The Joint Official Liquidators of A Company v B and Another has confirmed that a liquidator of a foreign company can seek the Hong Kong Companies Court’s assistance by applying for orders for the production of information and documents without the need to also apply to wind up that company in Hong Kong.

Background