Ngan Sam v. Cheer Best Asia Investment Ltd and Others

HCCW 182, 183, 184 & 185/2018 (Heard Together)

[2019] HKCFI 738

HCCW 182/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING‑UP PROCEEDINGS NO 182 OF 2018

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AND

HCCW 183/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING UP PROCEEDINGS NO 183 OF 2018

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AND

HCCW 184/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING UP PROCEEDINGS NO 184 OF 2018

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AND

HCCW 185/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING UP PROCEEDINGS NO 185 OF 2018

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(HEARD TOGETHER)

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D E C I S I O N

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1.I have before me four winding-up petitions. All four are shareholders disputes, the relevant companies being family companies. The respondent shareholders have agreed with the petitioners that each company should be wound up. The only dispute concerns costs.

2.The petitioners have proposed that the petitioners’ costs be paid out of the Company rather than paid by the individual shareholder respondents.  As each petitioner owns one-third of each company, it follows that effectively the petitioners are through an indirect route seeking orders that the respondent shareholders pay two-thirds of their costs.

3.In my decisions in Re Lucky Ford Industrial Ltd [1] and Re Sino Pacific Corporation Ltd,[2] I explain the principles by which, in my view, the court should deal with costs where a party has managed to obtain substantially the relief that the party sought in commencing legal proceedings.  It would follow from the principles explained in those decisions that normally the petitioners would be entitled to seek costs orders against the respondent shareholders.  The petitioners are, as I have explained, prepared to accept less. 

4.The position of the respondent shareholders is that they would like the costs issue adjourned, and they propose that there be a mediation at which costs can be dealt with along with various other disputes and, to quote their counsel Ms Jacquelyn Ng, “finger-pointing complaints” that the parties have made presumably each against the other.  If the petitioners had been willing to agree to that I would, I anticipate, have adjourned the costs issue, but I cannot see in the circumstances why if the petitioners do not, they should not be entitled to have the order that they seek. 

5.On the basis of what I have before me, I can see no reason for thinking in any event that if the mediation proved unsuccessful and the matter comes back before the court, there will be any reason, particularly having regard to the principles explained in Re Lucky Ford and Re Sino Pacific, to think that the petitioners would not be able to get at least the order that they are proposing.

6.I will, therefore, make winding-up orders which will be pronounced in open court on a date to be fixed and an order that the petitioners’ costs of each of the four petitions are paid out of the assets of each of the companies.

Ms Miranda Li, instructed by Ford, Kwan & Co, for the petitioner (in all cases)

Ms Jacquelyn Ng, instructed by Chiu, Szeto & Cheng, for the 2^nd and 3^rd respondents (in HCCW 185/2018), and the 2^nd to 4^th respondents (in HCCW 182, 183 &184/2018)

The 1^st respondent in HCCW 182/2018 was not represented and did not appear

The 1^st respondent in HCCW 183/2018 was not represented and did not appear

The 1^st respondent in HCCW 184/2018 was not represented and did not appear

The 1^st respondent in HCCW 185/2018 was not represented and did not appear

The Official Receiver was absent