Generally with a winding-up petition, if the petitioner is successful in obtaining a winding-up order, the petitioner will have its costs of the  proceedings. If, on the other hand, the petition is dismissed, then the petitioner has been  unsuccessful and it should pay the costs of the proceedings. We explore the Companies Court’s  treatment of costs in three recent decisions below.

From what Assets should a Petitioner have its Costs?

The Hong Kong court has held that, in determining whether it should exercise its jurisdiction to sanction a scheme of arrangement in respect of the debts of an insolvent foreign company, the factors to take into account include whether any of the debts are governed by Hong Kong law, such that they would be discharged by an order sanctioning the scheme, and whether sanctioning the scheme would foster comity.

Introduction

While most jurisdictions provide liquidators with wide investigative powers to locate and realise assets locally, the exercise of such powers becomes more complicated when the assets are situated overseas. As more and more businesses expand globally and corporate structures become equally more complex, the liquidators' task becomes more problematic in winding up such companies.

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.

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

Did you know that dispositions of property of a solvent company made after the commencement of a winding-up will unlikely be disturbed unless it can be demonstrated that the disposition is not in the interests of the company?

The Third Party (Rights Against Insurers) Ordinance Cap 273 (TPRAI) in Hong Kong allows third parties to claim against the wrongdoer’s liability  insurer in the event of insolvency. The Supreme Court of New Zealand (the country’s highest court)  found in BFSL 2007 Ltd (in liquidation) v. Steigrad [2013] NZSC 156 (known as the Bridgecorp case)  that under the equivalent statutory provision in New Zealand, payment of defence costs do not  reduce the limit of indemnity.

The Court of Appeal has declined jurisdiction to wind up Yung Kee Holdings Limited (the "Company"), a company incorporated in the British Virgin Islands ("BVI"), upholding the decision of Harris J at first instance that the Company did not have "sufficient connection" with Hong Kong.