Re China Greenfresh Group Co, Ltd

HCCW 213/2020, HCCW 83/2020 and HCCW 187/2020
(HEARD TOGETHER)

[2021] HKCFI 1257

HCCW 213/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO 213 OF 2020

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO 83 OF 2020

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO 187 OF 2020

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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 three petitions issued against the Company. One of these HCCW 83/2020 has already been the subject of a substantive decision which is dated 14 April 2021. I will not repeat the reasoning in that decision. My conclusion was to adjourn the petition until today. I also have before me HCCW 187/2020, which has also been the subject of a decision, is dated 21 December 2020. I adjourned that petition until today in order to decide when considering the other petitions what form of order I should make.

2.As I explained in the decision of 21 December 2020, this Company is unfortunately illustrative of an unhealthy practice which has come to my attention, namely, of creditors issuing winding up petitions when a petition has already been presented.  There is another relevant decision, although it does not concern this Company, in HCCW 21/2021 in which I deal with how the court should dispose of subsequent petitions which it is of the view should not have been issued in the first place.  I do not need to repeat the contents of that decision which is dated 19 April 2021.

3.The first Petition to be presented was HCCW 83/2020. The Petitioner and the Company have agreed the directions that I should make which are as follows:

(1) The Petition be adjourned to 26 July 2021 at 9:30am before the Companies Judge.

(2) The Company do have leave to file and serve affidavit evidence dealing with the progress of the restructuring of the Company’s indebtedness generally by 5:00pm on 12 July 2021.

(3) The Petitioner do have leave to file and serve affidavit evidence in reply by 5:00pm on 19 July 2021

(4) No further affidavit evidence be filed without the leave of the Court.

(5) The parties are to file and serve their proposed directions and brief explanatory submissions by 4:30pm on 21 July 2021.

(6) Costs of today’s hearing be in the cause of the Petition.

4.So far as HCCW 187/2020 is concerned, the Petitioner and the Company have agreed that I should make an order that the petition be removed from the court file and there be no order as to costs.

5.During the hearing of the petition involving Grand Peace Group, I considered with Mr Ho what in practice, is the difference between ordering dismissal and ordering removal of a petition which should never been issued removed from the court file was.  In short, as I explained it will normally be appropriate to order dismissal where the court takes the view that it is clear the petition should never had been presented, but order removal if there is some extenuating circumstance, such as the Petitioner not being aware of the earlier petition.

6.There is the purely administrative question of what in practice the order means.  Since the hearing on 19 April 2021 Mr Ho has helpfully checked how the practice operates in the Chancery Division in London.  I am told that the practice there is as follows.  If the document in question is a physical document, it is removed from the physical court file and destroyed.  If the document, and this is not currently relevant in Hong Kong but presumably will become so in due course, is digital, the digital document is simply deleted.  It would seem to me that this is how as a matter of administration the Hong Kong Court should deal with the file if the court orders that a document be removed from it.

7.The remaining matter to be dealt with is petition HCCW 213/2020.  It is not in dispute that I should make an order dismissing that petition which I do.  The only issue is costs.  My initial view was that as the Petitioner was at fault for issuing the petition, it should bear the costs.  However, having heard from Mr Lok and Mr Ho and looked at the correspondence passing between the solicitors, it seems to me that the way in which both parties’ solicitors dealt with the matter was sufficiently muddled, that it is appropriate to make no order as to costs.

Mr Michael Lok, instructed by Wilkinson & Grist, for the petitioner (in HCCW 213/2020)

Mr Alvin Cheng, instructed by Patrick Mak & Tse, for the petitioner (in HCCW 83/2020)

Mr Arthur Yan, of F Zimmern & Co, for the petitioner (in HCCW 187/2020)

Mr Look Chan Ho, instructed by C & T Legal LLP, for the respondent

Attendance of Michael Li & Co, for the supporting creditor, was excused

Attendance of Chan & Ho, for the supporting creditor, was excused

The attendance of the Official Receiver was excused