Re Grand Peace Group Holdings Ltd

CACV 597/2021

[2022] HKCA 881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 597 OF 2021

(ON APPEAL FROM HCCW NO 410 OF 2019)

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Before:  Hon Kwan Ag CJHC and Barma JA in Court

Date of Ruling:  17 June 2022

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R U L I N G

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Hon Kwan Ag CJHC (giving the Ruling of the Court):

1.This ruling is to determine whether an order being part of the subject of this appeal is an interlocutory or final order. The matter arose in this way.

2.On 24 August 2021, Harris J dismissed an application by a supporting creditor Chan Tsik Yan (“Chan”) to be substituted as the petitioner in the winding-up proceedings against Grand Peace Group Holdings Ltd (“the Company”) in HCCW 410/2019[1]. In dismissing the application, the judge ordered the petition be listed for hearing on 30 August 2021. The petition was then adjourned to 3 December 2021 to consider how it should be dealt with in light of the progress of a proposed restructuring of the Company. At the adjourned hearing, both the petitioner and Chan asked for the petition to be adjourned pending the hearing of Chan’s appeal in CACV 512/2019. Harris J decided to adjourn the petition for dismissal on 6 December 2021 before the Companies Judge. He reasoned that if the petitioner should appeal against the dismissal of the petition, he anticipated that the appeal would be heard with CACV 512/2019, which would probably determine the outcome of the appeal. In other words, an appeal of his decision to dismiss the petition should not involve any substantive work. He ordered the parties’ attendance on 6 December be dispensed with.

3.At the hearing of the petition on 6 December before the Companies Judge Linda Chan J, she ordered the petition be dismissed pursuant to the order of Harris J dated 3 December.

4.The petitioner did not issue an appeal against the dismissal of the petition but Chan did so in a notice of appeal filed on 31 December 2021. He appealed against the order of Harris J on 3 December to adjourn the petition to 6 December for dismissal and the order of L Chan J on 6 December for dismissing the petition, on the basis that his application to be substituted as the petitioner was wrongly dismissed. This is CACV 597/2021.

5.The Registrar of Civil Appeals raised the question whether the order of 3 December is an interlocutory order such that leave to appeal must be obtained before an appeal can be brought.

6.We rule that the order of 3 December is a final, not an interlocutory order, applying the “application approach” in B+B Construction Ltd v Sun Alliance and London Insurance Plc (2000) 3 HKCFAR 503. One should look at the purpose and substance of the order and the issue determined by it. It is an order adjourning the petition for dismissal and excusing the parties’ attendance for the adjourned hearing, and the formal order for dismissal was made pursuant to it. The two orders together constituted the final disposal of the cause or matter before the court. It is not necessary to seek leave to appeal against the order of 3 December and CACV 597/2021 is properly constituted.

Written submissions by Oldham, Li & Nie, solicitors for the Supporting Creditor