Osman Mohammed Arab and Wong Kwok Keung, The Joint and Several Liquidators of Kam Toys & Novelty Manufacturing Ltd (in Creditors’ Voluntary Liquidation) v. Cashbox Credit Services Ltd
Read the full judgment text of CACV 67/2017 on BabelCite. This Court of Appeal judgment was delivered on 13 November 2017 before Hon Lam VP, Hon Yuen JA, Hon McWalters JA.
Company law – unfair preference – winding up – sections 266, 266A, 266B(1) and 228A, Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32) – Insolvency Act 1986, s.239(5) – insolvent company borrowing from third party to release stakeheld deposit from property sale – company controlled by directors who gave personal guarantees as part of loan transaction – repayment of loan within six months of voluntary liquidation – whether company was influenced by desire to prefer creditor under s.266(4) – meaning of 'desire' under Re MC Bacon Ltd – whether suspicious nature of loan proves unfair preference – costs of unsuccessful unfair preference proceedings – whether payable by company or by liquidators personally – Re Wilson Lovatt & Sons Ltd – company insolvent on cash flow test with debts of over HK$267 million – loan of HK$19 million from Cashbox used to reduce secured debts to enable release of HK$30 million stakeheld deposit – HK$16 million paid to reduce mortgage debt and HK$3 million as working capital – irrevocable Letter of Authorization directing solicitors to pay HK$19.287 million from deposit to Cashbox – Court of Appeal holds that liquidators failed to prove subjective desire to prefer – loan was arms-length transaction with no pre-existing relationship and no pre-existing debt – guarantees given as part and parcel of the loan – no evidence directors considered liquidation inevitable – appeal dismissed – costs appeal allowed by consent – liquidators ordered to pay costs personally without prejudice to recoupment from company's assets.
Legal issues: Whether the suspicious nature of the Cashbox loan evidences unfair preference under s.266 C(WU)O · Whether the company was influenced by desire to put Cashbox in a better position under s.266(4) C(WU)O · Whether costs of unsuccessful unfair preference proceedings should be paid by the company or by the liquidators personally
Outcome: The liquidators' appeal against the dismissal of the Originating Summons was dismissed with costs. The Respondent's costs appeal was allowed by consent, and the costs order below was set aside and replaced with an order that the liquidators pay Cashbox's costs personally.
Cites 3 cases
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CACV 67/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 67 OF 2017 (ON APPEAL FROM HCMP 1908 OF 2016) AND IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO. 637 OF 2017 (ON AN INTENDED APPEAL FROM HCMP NO. 1908 OF 2016) ________________________
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________________________ (Heard Together) Before: Hon Lam VP, Hon Yuen and Hon McWalters JJA in Court Date of Hearing: 15 September 2017 Date of Judgment: 13 November 2017 ________________________ J U D G M E N T ________________________ Hon Lam VP: 1.I agree with the judgment of Yuen JA. Hon Yuen JA: 2.There are before this court two matters arising from a judgment of Anthony Chan J (“the judge”) given on 9 February 2017 (“the Judgment”). 3.1.In the Judgment, the learned judge:
3.2.No application was made to the judge to vary the costs order nisi within the 14 day period prescribed by the Rules of Court and hence the order became absolute. Matters before this court 4.1.The first matter before this court is the liquidators’ appeal, filed on 8 March 2017, against the Judgment. 4.2.The second matter is Cashbox’s application to this court, filed on 21 March 2017, for leave to appeal the costsorder out of time. Such an application should have been made to the Court of First Instance and not directly to this court[1], but in the exercise of our discretion we considered the arguments de bene esse as counsel for both parties had provided the court with full submissions. Factual background 5.1.The Company was controlled by Mr Lee Kwan Wah (“LKW”) and his family. LKW held 80% of the shares, and his wife and brother each held 10%. Prior to 28 January 2014, the three of them, together with Mr & Mrs LKW’s son Mr Lee Yuk Shan (“LYS”), were the Company’s directors. On that day, LKW, his wife and his brother resigned from the board, leaving LYS as the sole director. 5.2.On 6 March 2014, a director’s resolution was passed that the Company could not by reason of its liabilities continue its business, and a winding-up statement was delivered to the Registrar of Companies. The Company was thus put into creditors’ voluntary liquidation under s.228A, C(WU)O. The Company’s financial position 6.Although the Company had been very successful in the past, it had been struggling financially for a few years. This is how the judge described the Company’s financial position:
Dealings with properties 7.In 2013, the following financing transactions were taken in relation to landed properties owned by the Company or the persons controlling it. Charges/Mortgages - Black’s Link
- Taikoo Shing
- Both properties
Agreements for sale
Deposit for Black’s Link property stakeheld by solicitors 8.1.A total deposit of $30 million (“the Deposit”) was paid by the purchaser of the Black’s Link property in November 2013 to the Company’s solicitors Tony Kan & Co (“the solicitors”) as stakeholders. 8.2.It was provided in the provisional sale and purchase agreement that the solicitors could only release the Deposit to the Company if the balance of the purchase price (ie $270 million) was sufficient “to discharge the existing charge/mortgage against the said premises”. 8.3.As boththe Lei Shing Hong and the Success Full mortgages were in existence at the time, that meant that the Deposit could only be released by the solicitors to the Company if and when the total sums due to both mortgagees (collectively “the Secured Debts”) were reduced to $270 million. Amount of Secured Debts 9.1.The fact that the solicitors were stakeholding the Deposit in November 2013 showed that the Secured Debts must have exceeded $270 million, although it is not known exactly by how much, since this court was not provided by the liquidators with most of the Company’s relevant accounting documents[2]. 9.2.However as an indication, the solicitors’ Statement of Account[3] prepared after completion of the sale of the Black’s Link property on 18 February 2014 showed redemption moneys paid to:
The Company’s approach to Cashbox 10.As matters stood in November 2013 therefore, the Company was not able to get its hands on the $30 million Deposit stakeheld by the solicitors. 11.1.In early December 2013 the Company approached Cashbox for a loan of $19 million for “no more than a month”[5]. 11.2.Mr Mok Ka Fai, a director of Cashbox, said the following on affirmation:
The Loan as leverage 12.It is clear from the Company’s plans for the use of the $16 million as disclosed above that it was leveraging the loan of $19 million[8] from Cashbox in order to obtain the release of the $30 million Deposit. Put another way, by borrowing $19 million[9] to reduce the Secured Debts to $270 million or less, the Company could immediately utilize the Deposit of $30 million which would otherwise be tied up by the stakeholding arrangement. On repaying the Cashbox loan of $19 million with interest of $278,000, the Company would still receive the balance of the Deposit of more than $10.7 million. Arrangement for the loan 13.It is important to note the arrangement pursuant to which the loan was made.
Loan Agreement 14.It is noted that according to the Loan Agreement, the date of repayment of both tranches was 13 January 2014, and the total interest of $287,000 was calculated on the assumption that the loan would be repaid on that date. The Company’s use of the loan 15.It would appear from an extract from the Company’s accounting ledgers[13] that:
The (Re-)Payment to Cashbox 16.1.As stated earlier[16], the Authorization Letter irrevocably authorized the solicitors to release the respective sums of $19.287 million to Cashbox and $10.713 million to the Company
16.2.There is no evidence before the court as to when such confirmation was received. I will return to this when considering the argument based on early repayment of the Loan later in this Judgment[17]. In any event, on or before 9 January 2014, the solicitors received the confirmation. 16.3.On that day (4 days before the repayment date stated in the Loan Agreement), the solicitors paid Cashbox $19.287 million as
This is the Payment the subject matter of the appeal. The Company’s use of the balance of the Deposit 17.1.On the same day, the solicitors paid the Company the balance ($10.713 million) of the $30 million Deposit. 17.2.It is noted that the liquidators have not provided any evidence[18] to this court as to how that balance of $10.713 million was applied. I will discuss this later in this Judgment[19]. 17.3.As for the former directors, the liquidators have only said that “despite our efforts to arrange a meeting with LKW, no such meeting was confirmed by LKW’s solicitors”[20]. The liquidators have not stated whether they have also made any attempts to question the other former directors and the Company’s former accounting staff. Post-Payment events 18.1.Returning to the factual events, on 16 January 2014 the Taikoo Shing sale was completed. 18.2.On 28 January 2014 Mr and Mrs LKW and LYW resigned from the board, leaving LYS as the sole director. 18.3.On 18 February 2014, the sale of the Black’s Link property was completed. Liquidation 19.As stated above[21], the Company adopted the s.228A procedure for insolvent liquidation on 6 March 2014. 20.According to the liquidators, there were 109 proofs of debt amounting to $267.4 million. LKW was one of the largest creditors with a proof of debt in the sum of more than $168 million. Originating Summons 21.On 26 July 2016, the liquidators issued an Originating Summons (“OS”) for a declaration and order that
The OS was amended later to include a claim for payment of the said sum to the Company. The Statute 22.1.Section 266, C(WU)O provides (where material):
22.2.Section 266A(1) provides (where material):
23.The liquidators’ case is that by making the Payment (or to be precise, the repayment) to Cashbox on 9 January 2014 (within 6 months of insolvent liquidation on 6 March 2014), the Company has put Cashbox in a better position than if the Payment had not been made. That effect is not disputed by Cashbox. What is disputed is whether the liquidators have proved, as required by s.266(4), that when the Company decided to do so, it had been influenced by a desire to produce in relation to Cashbox the effect mentioned. The judge’s Judgment 24.1.The judge found that requirement was not proved and dismissed the OS. 24.2.The judge bundled the liquidators’ submissions into 2 arguments: the 1st argument being that the loan was “suspicious”[23], and the 2nd argument being that the Company had a desire to unfairly prefer Cashbox. The 1st argument 24.3. In relation to the 1st argument, the judge was of the view that there was “considerable force in the submission” that the Loan was not a genuine commercial transaction. Despite this, he held:
The 2nd argument 24.4. In relation to the 2nd argument, the judge held that he did not see “any evidence to support the inference of a desire on the part of the directors to improve the position of [Cashbox] in the event of the Company’s insolvent liquidation”. He said:
Appeal 25.Although Mr Hughes for the liquidators stated that his “submissions in this appeal will focus primarily on the findings of the learned judge in §§38-41 of the Judgment”[24] (which paragraphs dealt with the 2nd argument), the Notice of Appeal included grounds based on the 1st argument[25] which Mr Hughes did not abandon explicitly. Accordingly I will have to discuss the 1st argument briefly. Discussion of the 1st argument 26.The liquidators submitted, and the judge accepted[26], that the Cashbox Loan was suspicious mainly for the reason set out in §32 of the Judgment.
27.1.There are a number of issues with that reasoning. First, the judge referred to the $16 million as being “required to secure Lei Shing Hong’s consent to the release of the Deposit”. Although Mr Mok said that was what LKW had said[27], with respect, on legal analysis the judge’s reliance on such a requirement was not correct.
27.2.Therefore, it was not correct to say that the $16 million was required “to secure Lei Shing Hong’s consent to the release of the Deposit”. 28.Insofar as the judge meant that an alternative option was for the Company to ask Lei Shing Hong to provide a confirmation to the purchaser that, contingent upon payment to it of $16 million out of the stakeheld sum, the Company’s debt to it (together with the Company’s debt to Success Full) would be reduced to $270 million or less, there is no evidence that the purchaser was prepared to accept such a confirmation, which would have entailed a variation of the terms of the stakeholding arrangement contained in the provisional sale and purchase agreement. There was no good reason for the purchaser to concern himself with the “alternative option” when he was adequately protected by the straightforward stakeholding arrangement. The liquidators have not provided the court with any evidence that Lei Shing Hong and the purchaser were amenable to this alternative option. 29.Further, the Cashbox Loan also provided the Company with a sum of $3 million in late December 2013, which LKW said was needed as working capital. The extract from the Company’s accounting ledgers shows that it was apparently used to reduce amounts then owed for the Company’s operating expenses. Entries dated 31 December 2013 also show that the Company was still purchasing “materials” that month. In other words, it was still trading during the month of December 2013. 30.1.Apart from the above reason, the judge also considered that the Loan was a “no risk transaction for [Cashbox]”[28]. 30.2.With respect, that may have been said with the benefit of hindsight. Cashbox had no control over the Company or the extent of its borrowings from Lei Shing Hong and Success Full. In other words, Cashbox could not ensure that the Secured Debts would be reduced to the degree required for the solicitors to release the Deposit from which the Company would repay it. 30.3.Of course Cashbox did obtain security in the form of a Third Legal Charge over the Taikoo Shing property and guarantees from LKW and LYS. However, in relation to the Third Legal Charge, Lei Shing Hong and Success Full had priority as prior chargees. As for the personal guarantees, there is no evidence that these persons were still worth powder and shot. 30.4.Accordingly, although I would agree that the risk faced by Cashbox in making the bridging loan was relatively short-term (the overall period was 23 December 2013 to 9 January 2014), it cannot be said to be entirely free of risk. 31.1.Finally, in finding that the Loan was of a suspicious nature, the judge referred to the fact that there was no reduction of interest despite repayment being made 4 days in advance of the repayment date in the Loan Agreement. 31.2.In this regard, the terms of the Authorization Letter which have been set out earlier in this Judgment[29] have to be examined. 31.3.In the way that it was drafted, it would seem that the solicitors were constrained to pay the exact sum of “$19,278,000” within the stated time of “2 working days” after their receipt of the relevant confirmation from the mortgagees. It is certainly arguable that a partial payment (eg incorporating a smaller amount of interest) or a later payment (eg waiting until the repayment date stated in the Loan Agreement) would be in breach of the Authorization Letter as drafted[30]. 31.4.Accordingly it could not be said that the fact that the full sum was repaid before the stated repayment date in the Loan Agreement shows that the loan was of a suspicious nature. Discussion of the 2nd argument 32.I turn now to the 2nd argument. Section 266(4), C(WU)O[31] is based on s.239(5) of the Insolvency Act 1986. 33.1. Re MC Bacon Ltd [1990] BCLC 324 was the first case under that Act. In his judgment, Millett J (as he then was) provided guidance on the interpretation and application of that section. His approach has been followed by this court in a bankruptcy case (Trustees of the property of Hau Po Man Stanley (in bankruptcy) v Hau Po Fun Ivy & anor)[32] and by Kwan J (now Kwan JA) and Barma J (now Barma JA) in two companies winding-up cases (Re Phantom Records Ltd & Anor [33]and Re Sweetmart Garment Works Ltd [34]). 33.2.The first point in MC Bacon was that the old law on unfair preference which dealt with “dominant intention to prefer” is no longer applicable. 34.Under the present legislation, the liquidators have to prove that:
35.Understandably, the need to prove “desire” is likely to be the most difficult aspect of an unfair preference case. It is important to note that “desire” goes beyond simply an intention to produce the effect of putting the subject creditor in the better position[38]. Nor can such a desire be proved by only showing that such an improvement in position must have followed from the payment. As Millett J put it succinctly[39],
36.1.On the question of the state of mind of the controlling minds of the company, direct evidence may not always be available[40], or be credible. In the present case, the liquidators did not present any direct evidence from the directors. 36.2.In the absence of direct evidence, the court would have to see whether the requisite desire can be inferred by considering evidence of the relevant surrounding circumstances, such as how the company was running its business, how it dealt with funds, whether there was pressure (whether commercial or moral, formal or informal) from the subject creditor or other creditors, whether the company derived any benefit from paying the subject creditor, etc. 37.1.The fact that the subject creditor held personal guarantees of the directors as security is a relevant circumstance, but is not conclusive. This can be seen in the different results in Fairway Magazines Ltd, Fairbairn v Hartigan[41] and Re Agriplant Services Ltd[42]. 37.2.In both cases a director of the company had given a personal guarantee to the subject creditor for the company’s debt, and so enjoyed a personal benefit when the company’s payment to the subject creditor reduced that debt. 37.3.In Fairway Magazines, the director obtained a floating charge for his advances to the company which were used to reduce its debt to the bank. The judge found that the company’s decision to grant the floating charge was not an unfair preference. The judge accepted the evidence that the director’s advances to the company were made to enable it to continue trading, and that the company’s decision to grant him that security for his advances was influenced by the need to raise money from a source other than the bank (which had an upper limit on the overdraft) in order to keep on trading[43]. Thus the director, even though he was a “connected person”, was able to rebut the presumption[44] of unfair preference. 37.4.In Agriplant Services, S was the main director of the company. The directors were advised by the company’s financial adviser at a meeting that the company was insolvent and that the company should make no further payments to creditors. However they decided to delay passing a resolution to wind up, pending the possible receipt of some money due to the company. The money was duly received, and it was paid to the subject creditor C. The company then passed a resolution to wind up. 37.5.The judge held that the payment to C constituted a preference given to both C and S, for it had the effect of improving the position of both C as a creditor and S as a contingent creditor under his guarantee. The judge found that as a result of the financial adviser’s advice at the meeting, S was aware that liquidation was inevitable. During the interim period between the meeting and the payment, he instructed solicitors to ask C for a copy of his guarantee. The judge found[45] that in procuring the company to make the payment to C (despite the financial adviser’s advice), S had his own liability under the guarantee directly in mind. 38.In our case, there was no evidence from any of the directors, nor any documents of the Company, such as minutes of meetings, which might indicate the directors’ thinking in December 2013 with regard to the Company’s situation, ie whether the Company’s insolvent liquidation was inevitable, or whether it was trying to trade itself out of its cash flow difficulties. According to Mr Mok, LKW said that $3 million of the Loan was for the Company’s working capital. Taking that evidence at face value, that seems to indicate an intention to carry on as a going concern. That is consistent also with the Company’s purchase of materials within that month. 39.More importantly, the lion’s share of the Cashbox Loan ($16 million) enabled the Company to receive the net sum of nearly $11 million from the Deposit, which would otherwise have been tied up by the stakeholding arrangement until mid-February 2014. The advantage to a cash-strapped company of having that sum of cash is obvious. 40.Mr Hughes informed this court from the Bar table that this sum (the $10.7 million) was not shown in the Company’s books and he asked the court to infer that these funds had not been applied to legitimate business uses. I do not think it is appropriate for the court to make this serious inference from an omission, when the liquidators could have provided the court with positive evidence on the issue (eg if the funds went to pay the directors or were used to repay LKW who was one of the Company’s largest creditors). The burden lies on the liquidators to prove that the directors did not intend to apply the $10.7 million for the benefit of the Company. The liquidators have possession of the Company’s bank statements (amongst other documents), as well as wide investigative powers under the C(WU)O. The liquidators should have been able to provide the court with evidence on the actual use of the funds by tracing the funds through the Company’s banking documents, and by making inquiries with the Company’s bank, directors and former staff. As officers of the court they would be expected to inform the court of the results of their investigations, whether in their favour or not. However there was no such evidence in the present case. 41.In light of the above, once the idea of the “suspicious” nature of the loan is set aside, and the advantage to the Company of using the leveraging power of the $19 million loan for the release of the $30 million Deposit is recognized, it is easy to see why the Company decided in December 2013 to effect (re-)Payment by way of the Letter of Authorization to the solicitors (for that is the relevant time in deciding whether there was unfair preference). I respectfully agree with the judge that the evidence does not point to the Company having a “positive wish” or “desire” to benefit Cashbox in the event of its insolvent liquidation. The Company and Cashbox had no relationship with each other before this transaction. It was an arms-length business deal. The Company had no pre-existing indebtedness to Cashbox for which the directors were contingently liable under personal guarantees. The guarantees were given as part and parcel of the Loan. From the available evidence it is clear that the Company issued the Letter of Authorization (which gave rise to the Payment) because without it, the Company would simply not have obtained first, working capital of $3 million and subsequently, the leveraging sum of $16 million, with which it could obtain the Deposit without having to wait for completion. Order on the liquidators’ appeal 42.For the reasons discussed above, I would dismiss the liquidators’ appeal with costs. Cashbox’s costs appeal 43.As for Cashbox’s costs appeal, the judge had ordered that Cashbox should have its costs[46] paid by the Company. Cashbox’s appeal is on the ground that the judge had erred in law in ordering that the costs be paid by the Company and not by the liquidators. 44.1.Mr Leon Ho, counsel for Cashbox, referred us to a judgment in the New South Wales Supreme Court of Re Bonang Gold Mining Co Ltd[47] but more particularly to Re Wilson Lovatt & Sons Ltd where Oliver J held that where a liquidator had initiated proceedings which turned out to be unsuccessful, the correct order for costs as between him and the opponent should be that he pay the costs, and words such as “out of the assets of the company” should not be included. In other words, vis-a-vis the opponent in the proceedings, the liquidator was not entitled to limit his responsibility for the costs to the company’s assets. 44.2.In Ho Yuk Lun Alan v Chan Yui Hang (Liquidator of Leco Watch Case Manufactory Ltd)[48], this court[49] referred to Re Wilson Lovatt & Sons Ltd but the reference was in relation to another holding, ie that the liquidator would prima facie be entitled to recoup from the company’s assets the costs that he had to pay[50]. In the event, the issue in Ho v Chan was decided by reference to legislation rather than the Common Law. This court was also referred to some cases which only had a bearing on the recoupment issue. 45.It seems to me that approaching the issue of liability for costs on first principles, liquidators who fail in proceedings they have instituted should be liable for the costs. Whatever may be the position of liquidators as defendants[51], a holding that unsuccessful plaintiff liquidators would not, as a general rule, be responsible for costs would be unfair to the other party. The unfairness is obvious as the other party would not receive costs if he were successful but would have to pay costs if he were unsuccessful. A holding that liquidators who institute proceedings should pay the costs personally in the first instance if they lose would not hamper liquidators in the execution of their task to get in the assets of the company. They could of course protect themselves (if there is a risk that the company’s assets are insufficient) by obtaining financial support, prior to the start of proceedings, from the general body of creditors who would benefit from the proposed litigation. Order on the summons 46.1.The parties having sensibly agreed that there should be a consent order for leave if Cashbox were to succeed on the merits of its costs appeal, I would make the following order:
46.2.As for the costs of the summons and the costs appeal, it is likely that the summons and costs appeal would not have been necessary had the Respondent applied to the judge to vary the costs order nisi below, referring the judge to the cases discussed above[53]. For that reason, I would make an order nisi that the Respondent pay the Applicants the costs of the summons, and that the Applicants pay the Respondent’s costs of the costs appeal personally[54] but to be taxed on the basis of an application by summons at first instance to vary a costs order nisi only, to be taxed if not agreed. Hon McWalters JA: 47.I agree with the judgment of Yuen JA.
Mr Sebastian Hughes, instructed by MUNROS, for the Applicant Mr Leon Ho, instructed by Darin Leung & Partners, for the Respondent [1] Practice Direction 4.1, Section B, §5. [2] Other than “OMA-13”, an extract from the accounting ledgers (20.12.2013 - 6.1.2014). [3] Undated, “OMA-6”. [4] § 13(4) below [5] Mok Ka Fai: §7. [6] Mok: §13(2). [7] Mok: §15(4). [8] Or $16 million thereof. [9] See fn 8. [10] There is no evidence before this court as to when such confirmation was received. [11]Through its solicitors. [12] Through its solicitors. [13] “OMA-13”. [14] The bulk being a sum of $2.2 million (RMB1.7 million) owing to “Yi Tai” (Huizhou) on a current account. [15] Through its solicitors. [16] § 13(2) above. [17] § 31 below. [18] e.g. by way of bank statements, journals or ledgers. [19] § 40 below. [20] Osman Mohammed Arab, 2nd, §3. [21] § 5.2 above. [22] In the circumstances of the present case, the relevant time is within a period of 6 months before 6 March 2014: see s.266B(1)(c) and s.228A(5)(a), C(WU)O. [23] §31, Judgment. [24] §12, Applicants’ Skeleton Submissions. [25] §31-§34, Judgment. [26] §32, Judgment. [27] Mok, §13(2). [28] §33, Judgment. [29] § 13(2) above. [30] Mr Hughes accepted before this court that the Cashbox Loan was a fixed term loan, in which reduction of interest was not permitted on early repayment. [31] § 22.1 above. [32] [2005] 2 HKC 227, §13. [33] HCMP2770/2003, [2006] HKEC 2233. [34] [2008] 2 HKLRD 92, §13-14. [35] p.336 d. [36] In the present case, the decision was made before payment was made by the solicitors. [37] Which need not be the only or decisive factor: p.336 c-d. [38] p.335 f. [39] p.335 h. [40] See §38 below. [41] [1993] BCLC 643. [42] [1997] 2 BCLC 598. [43] pp.649 i - 650 a. [44] Similar to s.266(5), C(WU)O. [45] p.609 g-i, p.610 f-i. [46] To be precise, 2/3 thereof. [47] (1893) 14 LR NSW (Eq) 262. [48] CACV59/2015, unrep. 3 March 2017. [49] Lam VP, Yuen and Kwan JJA. [50] Also the issue in De-Etco International Ltd v Desirable Enterprise Co Ltd & Ors [1993] 1 HKC 251. [51] Which involve additional considerations which we do not have to examine in this appeal. [52] Without prejudice to any right the liquidators may have to recoupment from the Company’s assets. [53] §44 above. [54] See fn 52 above. | ||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACV 67/2017