Posts

ONC Corporate Disputes and Insolvency Quarterly

Dear Clients and Friends,

This special newsletter aims to regularly update practitioners on important and noteworthy cases in the areas of corporate disputes and insolvency in Hong Kong, the UK and other common law countries. In this issue, we have highlighted:

·         5 Corporate Insolvency Cases

·         3 Cross-border Insolvency Cases

·         2 Restructuring Cases

·         3 Corporate Disputes Cases

·         6 Bankruptcy Cases

Our selection of cases and our analysis of them may not be exhaustive. Your comments and suggestions are always most welcome. Please feel free to contact me at ludwig.ng@onc.hk

Best regards,

Ludwig Ng

Partner, Solicitor Advocate

ONC Lawyers

HEADLINES OF THIS ISSUE

Corporate Insolvency Cases

1.        A contributory (as opposed to a creditor) petitioning for the winding-up of a company should normally show a “tangible interest” in the assets of the company or a ‘need for investigation’, which entitles him to ask for the winding up of the company

Haw Par Pharmaceutical Holdings Pte. Ltd v Hua Han Health Industry Holdings Ltd [2019] 4 HKLRD 286

2.        Relevant factors that Court will take into account in giving retrospective sanction

Re Moulin Global Eyecare Trading Ltd (in liquidation) [2019] 4 HKLRD 643

3.        The requisite intention to gift must be proved to establish transaction at undervalue on the basis of gift

Ho Man Kit v Sure Lead Ltd [2019] HKCFI 2914

4.         Petitioner ordered to pay costs on a common fund basis for failing to explain why a winding-up order was sought in the petition

Wong Wai Tung v Lam Chun Fung and Another [2019] HKCFI 3034

5.         Once privileged, always privileged – legal advice attaching to the documents subsisted notwithstanding the dissolution of the company

Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600

Cross-border Insolvency Cases

6.          Indonesian bankruptcy proceedings recognized in Singapore

Heince Tombak Simanjuntak and others v Paulus Tannos and others [2019] SGHC 216

7.         Limits of assistance – it is not open to the assisting court to appoint a different person as the foreign representative

Re Rooftop Group International Pte Ltd and another (Triumphant Gold Limited and another, non-parties) [2019] SGHC 280

8.         Hong Kong Court recognized and assisted Mainland liquidators for the first time

Re CEFC Shanghai International Group Limited [2020] HKCFI 167

Restructuring Cases

9.          English High Court held that a scheme of arrangement only affect the rights of the creditors of a scheme company in their capacity as creditors, not other rights they have, such as proprietary rights in property

Re Instant Cash Loans Limited [2019] EWHC 2795 (Ch)

10.      In considering whether a scheme of arrangement is propounded for a permissible purpose for the general benefit of the scheme creditors, the Court will take into account the rate of return to scheme creditors and the amount of the restructuring and liquidation expenses

Re Da Yu Financial Holdings Limited (formerly known as China Agrotech Holdings Ltd) (in liquidation) [2019] HKCFI 2531

Corporate Disputes Cases

11.      Assessing the value of his shares is a proper purpose for a shareholder to seek inspection of the company’s documents and accounts, particularly where a long-standing substantial shareholder is seeking to protect his economic interest as a shareholder

Selvaraj (Moorthy) v GMT Industrial Ltd [2019] 4 HKLRD 572

12.      Court of Appeal: those who alleged fraud should carry the burden of proof and the proper remedy for a forged transfer is to seek a rectification of the share register and the company is a necessary party to the claim

Ngan Pui Chi and Another v Bao Quan [2019] 4 HKLRD 135

13.      Singapore Court of Appeal: discount for lack of control would typically apply where the buyout of a minority shareholding was made pursuant to a consent order in the absence of any finding on the issue of minority oppression

Liew Kit Fah and others v Koh Keng Chew and others [2019] SGCA 78

Bankruptcy Cases

14.      An application for a non-commencement order under the Bankruptcy Ordinance (Cap 6) should be made inter-partes

Re Cai Sui Xin [2019] HKCFI 2547

15.      Bankruptcy petition dismissed as the creditor failed to do all that was reasonable for the purpose of bringing the statutory demand to the debtor’s attention and to cause personal service of the demand to be effected

Re Luo Xing Juan Angela [2019] HKCFI 2674

16.      To prove a debtor has carried on business in Hong Kong, it is not enough to show that a person is running his company’s business even though he is the sole beneficiary shareholder and in complete control. There must be some evidence of activities on the part of the debtor over and above those attributable to the company to show that the debtor has carried on business of his own

Re Chen Mei Huan also known as Liu Chen Mei Huan also known as Liu Mei Huan Chen [2019] HKCFI 3028

17.      Singapore High Court: an annulment of bankruptcy order is not conditional upon all debts being proven

Standard Chartered Bank, Singapore Branch v Chua Seng Kiat (Lim Peng Liang David Llewellyn, intervener) [2019] SGHC 240

18.      Court of Appeal warned against debtor’s opportunistic attempts to invoke the Lasmos approach in the future to stay winding-up/bankruptcy petition by invoking arbitration agreement

Sit Kwong Lam v Petrolimex Singapore Pte. Ltd [2019] HKCA 1220

19.      Trustees in Bankruptcy found not in breach of their duties to act with reasonable care and skill, as they had limited funding available to them at the timed

Lau Chun Ming v Deloitte Touche Tohmatsu (A Firm) [2019] HKCFI 2722