Perfect Direct Ltd v. Dejin Resources Group Co Ltd

HCCW 214/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO 214 OF 2016

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D E C I S I O N

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1.I have before me a winding-up petition issued by Perfect Direct Limited against Dejin Resources Group Company Limited ("the Company"). The Company is incorporated in Bermuda, was registered in Hong Kong pursuant to Part XI of the Companies Ordinance (Cap 32). It is listed on the Stock Exchange of Hong Kong Limited although its shares are currently suspended.

2.The petition is presented on the grounds of insolvency.  The underlying debt arises pursuant to a series of convertible notes, and the total amount claimed is HK$ 339,000,000.

3.The petitioner has previously presented a petition (HCCW 76/2014) on exactly the same grounds.  An application to strike out that petition came on before Deputy High Court Judge Manzoni SC in May 2015.  The Deputy Judge was persuaded that a bona fide dispute on substantial grounds has been established.  That ground was limited to an argument advanced on behalf of the Company that the date of maturity of the notes had been extended beyond the date when the petition had been issued. 

4.The petitioner waited until after the alleged extended date had passed and then served a fresh statutory demand on 17 May 2016.  No response was forthcoming, and the petition was issued on 29 June 2016.  It was not until 9:20am this morning that the Company sought to file evidence in opposition to the petition.  I have not received a copy of the affirmation as this hearing commenced at 9:30 am.  It is however common ground that the various matters that the Company now wishes to rely on which is summarised in the brief written submission of Mr Lam dated the 24 October 2016, which I have had the opportunity to read, were raised in response to the first petition.

5.The excuse for the Company failing to file, as it should have done within a week of the verifying evidence being filed with the court, any evidence in opposition is apparently that the Company did not have the money to instruct lawyers.  Lawyers were not instructed until last Thursday.  It would therefore appear quite clear that the Company is insolvent. 

6.It also seems to me that this is not a situation in which the court should extend the time for filing of evidence in opposition.  It seems inherently unlikely that the new defence, which has not been referred to previously, has any merits and also the fact that the Company is self evidently insolvent, suggesting it would be appropriate for it to be wound up in any event. I will therefore make the normal winding-up order.

Mr Martin Ho, instructed by Cheung & Yeung, for the petitioner

Mr Justin Lam, instructed by Raymond Kwong & Co, for the respondent

Ms Sharon Ng, instructed by the Official Receiver's Office, for the Official Receiver