Re Pinewood Marine Co. Ltd.

CACV000094/1991

BETWEEN

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Coram: Hon. Fuad, V.-P., Penlington, J.A. and Liu, J.

Date of Hearing: 1 November 1991

Date of Judgment: 1 November 1991

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court) :

1. This is an appeal from an order made by Master Jones on 5th June 1991 whereby he ordered the Pinewood Marine Company Ltd. ("the Company") to be wound up by the court and appointed the Official Receiver as the provisional liquidator. The Company is a private company limited by shares.

2. The order made by the Master followed a petition presented by Maritime Agencies (West Africa) Limited on 4th April 1991 averring that the Company was indebted to them in the sum of US$9,298.43 in connection with services performed by them on the Company's behalf. The petition stated that the Petitioner's solicitors had served a written demand on the Company requiring payment within 21 days of service. The time allowed had passed and the debt remained unpaid. Section 177(1)(d) of the Companies Ordinance, Cap.32 provides that a company may be wound up by the court if it is unable to pay its debts. Since there was no challenge to the averment concerning the statutory demand, by virtue of s.178 (1) (a) of the Ordinance, the Company was deemed to be unable to pay its debts.

3. The Company filed a Notice of Appeal against the Master's order on 26th June and on 31st October they took out a summons for leave to amend their Notice of Appeal to add a new ground based on jurisdiction, while not abandoning the other grounds they had raised in their earlier Notice of Appeal. We thought it right to grant leave to the company to rely on the new ground. The respondent is not represented by counsel before us.

4. The point raised in the amended Notice of Appeal is that since the petition had been opposed by the Company, the Master had no jurisdiction to entertain the matter in view of the provisions of s.180A of the Ordinance (which were inserted into the principal ordinance by Ordinance No. 55 of 1988). Subsection (1) of that section is in the following terms:

"180A. (1) Subject to general rules limiting the power conferred by this section, the jurisdiction of the court under this Part may, in the case of an unopposed petition for winding-up by the court, be exercised by the Registrar of the Supreme Court."

We also mention r.5 (1) (a) of the Companies (Winding-up) Rules which provides that

"Except as provided in section 180A, the following matters and applications in the court shall be heard before a judge in open court -

(a) petitions;"

5. There can be no doubt whatever that the Master acted without jurisdiction in dealing with this opposed petition but it must be said that neither of the parties who appeared before him raised the matter of jurisdiction. There is therefore no need to go into the other questions raised in the original Notice of Appeal.

6. Allowing the appeal, we set aside the order made by the Master and give the Company leave to file affirmation(s) in opposition to the petition if they are informed that the petition will be persisted in, within 14 days of the information being given to them.

Representation:

Mr. Anderson Chow (Chan, Lau & Wai) for the Appellant.

Respondent/Petitioner not represented.

Provisional Liquidator not represented.