RE BEST YEAR ENTERPRISES LTD

HCCW 65/2019

[2019] HKCFI 1636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING‑UP PROCEEDINGS NO 65 OF 2019

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	IN THE MATTER of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Chapter 32 of the Laws of Hong Kong
	and
	IN THE MATTER of Best Year Enterprises Limited (好年企業有限公司)

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Before: Hon Harris J in Court

Date of Hearing: 24 June 2019

Date of Decision: 24 June 2019

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D E C I S I O N

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1.  On 20 May 2019 I adjourned the Petition in order to give the Company the opportunity to apply for leave to file evidence in opposition if it were able to pay into the court the amount of the debt relied on by the Petitioner, namely, HK$32,592,234.85 (“Debt”). As at today’s date the Company has proffered a cashier’s order for HK$10,000,000 which it is willing to pay into court if its application to file further evidence is granted. The Company will, as I understand it, also agree to pay the balance of the debt into court by the end of July.

2.  The Petitioner obtained summary judgment in respect of the debt on 3 January 2019.  No application to stay judgment pending an appeal has been filed.  In the present proceedings evidence has been filed on behalf of the Company asserting that the Company has a defence to the claim containing the serious allegation that the judgment was obtained by fraud and the filing of “perjurious testimony”, but the evidence, which is contained in the two affirmations of Yan Xianchang (“Mr Yan”), does not descend to detail of the fraud.

3.  On 20 June 2019 Mimmie Chan J heard an application for leave to file further evidence in support of the appeal that has been filed in respect of the summary judgment application. This evidence, which  I have not seen, apparently is intended to augment the Company’s case that the judgment was obtained by fraud.  Chan J rejected the application.  It is apparent from her Ladyship’s judgment that she thought that the evidence added nothing to the defence advanced in the evidence before the Master.  The implication of her Ladyship’s comments in her short written reasons is that the Company’s evidence falls short of establishing a conspiracy; which I assume is what Mr Yan is alluding to in his evidence in these proceedings.  Consequently, it would appear that the Company’s defence to the claim has already been rejected by the Master.  Clearly, the Company should have sought a stay of the judgment rather than to try and engineer a stay of the petition on the basis of incomplete evidence.

4.  I can see no basis for adjourning the Petition again.  I will make the normal winding up order.

	(Jonathan Harris)
	Judge of the Court of First Instance
	High Court

 

Mr Douglas Lam SC and Mr Gary CC Lam, instructed by   DLA Piper Hong Kong, for the petitioner

Mr David Chen, instructed by K&L Gates, for the company

Attendance of Johnnie Yam, Jacky Lee & Co,  for the opposing creditor, was excused

Mr Steve Cheng, instructed by the Official Receiver’s Office,  for the Official Receiver