Re Golden Wheel Tiandi Holdings Company Ltd
Read the full judgment text of HCMP 2713/2024 on BabelCite. This High Court CFI judgment was delivered on 24 June 2025.
1. By Petition presented by Golden Wheel Tiandi Holdings Company Limited (金輪天地控股有限公司) (“ Company ”), the Company sought sanction of the Scheme between itself and the Creditors under section 673 of the Companies Ordinance (Cap. 622). At the hearing, I sanctioned the Scheme. These are the reasons for my judgment.
Cited by 1 case · Cites 9 cases
|
HCMP 2713/2024 [2025] HKCFI 3268 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 2713 OF 2024 ___________________
___________________
__________________________________ REASONS FOR JUDGMENT __________________________________ 1.By Petition presented by Golden Wheel Tiandi Holdings Company Limited (金輪天地控股有限公司) (“Company”), the Company sought sanction of the Scheme between itself and the Creditors under section 673 of the Companies Ordinance (Cap. 622). At the hearing, I sanctioned the Scheme. These are the reasons for my judgment. A. BACKGROUND 2.The Company was incorporated in the Cayman Islands and is a registered non-HK company under Part 16 of the Companies Ordinance (Cap. 622). It has a principal place of business in Hong Kong. Since 2013, the shares of the Company have been listed on the Main Board of The Stock Exchange of Hong Kong Limited (“SEHK”) (stock code: 1232). 3.The Company is the ultimate holding company of a group of companies incorporated in inter alia the Mainland, the BVI and Hong Kong (together “Group”). The Company serves as one of the main offshore financing platforms for the Group and has raised funds to support the subsidiaries’ operations. 4.The Group is based in Nanjing city and engages in development and management of commercial and residential property and operation of hotels in the Mainland. The Group focuses on developing projects that are physically connected or in close proximity to metro stations or other transportation hubs. It has operations in 8 cities across 2 provinces. As at 3 March 2025, the Group had more than 8 projects for sale located in 6 cities in the Mainland. For the 6 months ended 30 June 2024, the Group recorded a total contracted sales value and sales area of around RMB 276.1 million and around 19,286 m2 respectively.[1] 5.From mid-2021, the Group experienced liquidity pressures arising from the downturn in the real estate market in the Mainland. It conducted a number of liability management exercises including a Cayman Scheme in 2022[2] and has liaised with bank creditors to extend the maturity dates of the Group’s debts. 6.The Group’s sales and liquidity did not improve despite its efforts. Sales of assets were slower than expected and the Group defaulted on its repayment obligations. The Company failed to pay interest of US$ 23,497,000 under the Existing Notes which had fallen due in October 2022 and subsequently, failed to repay the principal in accordance with the payment schedule. It also defaulted on the Existing Loan. 7.The Company is insolvent in that as at 31 December 2024, its total assets and liabilities were RMB 3.71 billion and RMB 4.47 billion respectively, while its current assets and current liabilities were RMB 24.75 million and RMB 4.47 billion respectively.[3] 8.Since 2023 the Company has been taking steps to formulate and implement a proposal to restructure the Existing Debt Instruments (“Restructuring”) and has appointed financial and legal advisers to assist it in the negotiations with the creditors. Since mid-2024, the Company has been in negotiations with an ad hoc group (“AHG”)[4] over the terms of the Restructuring, which led to the signing of a restructuring support agreement (“RSA”) on 21 November 2024. By 24 January 2025, creditors holding over 94.1% of the outstanding principal under the Existing Debt Instruments have acceded to the RSA. 9.Pursuant to the Convening Order dated 12 March 2025, the Scheme Meeting was held on 3 June 2025 at which 152 out of 155 Creditors in attendance[5], representing 98.33% in value and 98.06% in number, voted for the Scheme. B. KEY FEATURES OF SCHEME 10.The Scheme is designed to compromise and release (1) US$ 506.7 million which represent 89.59% of the outstanding principal of the Company’s debts[6], and (2) all the accrued interest of these debts (“Claims”) under the Existing Debt Instruments, which comprise:
11.The following debts will not be compromised by the Scheme as they have been dealt with by the Company with the relevant creditors bilaterally:
12.For the purpose of the Scheme, the Group will on or before the RED (defined at §24) implement a restructuring for the purpose of transferring 3 major assets (i.e. Specified Assets, defined in §13 below) into a new corporate structure with “New Notes Issuer” (defined in §15(1) below) holding 95% in “AssetCo”[8] which holds 100% shareholding, direct or indirect, in each of the intermediate holding companies which, in turn, hold 100% equity in each of the 3 subsidiaries established in the Mainland (together “New Issuer Group”) as follows: 13.The Specified Assets are:
14.Under the Scheme, the Creditors are entitled to receive the following Scheme Consideration:
15.The key terms of the New Notes are as follows:
16.The Group and Hang Seng Bank have entered into a loan facility agreement of up to HK$ 272 million (“Project Loan”), which is secured by amongst others a mortgage over one of the Specified Assets, GW International Plaza.[14]
17.Each Creditor’s entitlement (excepting those affected by sanction) to the Scheme Consideration will be determined by the Information Agent, whose determination shall be conclusive and binding.[16] B1. Consent Fee, Work Fees & Advisors Fees 18.Creditors who acceded to the RSA by the Consent Fee Deadline[17] will get a Consent Fee equal to 0.1% of the aggregate principal of their Debts[18] as at the Record Time.[19] 19.The Company will pay working fee of AHG (“AHG Work Fee”) and their advisors fee (“AHG Advisors Fee”) which represent less than 0.2% and 0.3% of the aggregate outstanding principal of the Existing Debt Instruments respectively regardless of whether the Scheme becomes effective. B2. Third party releases 20.Upon the Scheme becoming effective, the liabilities of certain third parties (which fall within the definition of “Released Persons”) will also be released. The third parties to be released are:
21.As submitted by Mr Terence Tai, counsel for the Company, these third party releases are narrower than those considered in Re Noble Group [2019] BCC 349 and Re Powerlong given that cl.9.3(c) of the Scheme specifically carves out any claim or liability against any directors or officers of the Company, the Subsidiary Obligors and any member of the Group for breach of duties or malfeasance not connected to the preparation or implementation of the Scheme or the Restructuring, which will not be released. 22.As with other schemes of similar structure, the releases of third parties will be achieved by the Creditors authorising the Company to execute Deeds of Releases and such other documents as may be necessary to effect such releases.[21] B3. Restructuring Conditions 23.The Scheme will become effective upon the court’s sanction and filing of a sealed copy of the Sanction Order at the Companies Registry. From that day, no Creditor may commence or continue any proceedings against the Company and any Released Persons in respect of their Claims. 24.However, the Scheme Consideration will only become payable on the Restructuring Effective Date (“RED”), which shall occur within 10 business days following satisfaction or waiver of all the Restructuring Conditions stipulated in clause 15 of the Scheme before the Longstop Date (31 December 2025). If the RED does not occur before the Longstop Date or any extension thereof, the Scheme will terminate as if it has never become effective.[22] 25.The Restructuring Conditions include:
26.For Creditors who have not submitted the required documents before the Record Time, their entitlements to Scheme Consideration and Consent Fee will be placed in the “Holding Period Trust” and be distributed or managed in accordance with the relevant trust deed.[24] B4. Modification clauses 27.The Scheme contains the following modification clauses:
C. DISCUSSION 28.In deciding whether or not to sanction a scheme of arrangement, the court considers the following matters (Re Shimao, §22):
C1. Permissible purpose, compliance with directions & statutory majorities 29.The purpose of the Scheme is to compromise and discharge the liability of the Company under the Existing Debt Instruments, which is a permissible purpose. 30.The Company has considered and amended the Scheme Document in response to this Court’s comments and concerns raised at the Convening Hearing on 12 March 2025, which included:
31.The Company has complied with the Convening Order dated 12 March 2025, which required the Company (1) to distribute the Notice of the Scheme Meeting to the Creditors in a number of ways; (2) to ensure that the Notice contained a link to the Transaction Website where copies of the documents provided to the court or mentioned in the Scheme Document can be obtained by the Creditors; (3) to advertise a notice in substantially similar terms as the Notice of the Scheme Meeting in newspapers; and (4) to procure copies of the Notice and the Scheme Document for inspection (no Creditor has exercised such right). 32.As stated in §9 above, the Scheme was approved at the Scheme Meeting by the requisite majorities of the Creditors. C2. Class composition 33.The key question is whether the rights (as opposed to their commercial or other interests) of the Creditors before and after the Scheme are so dissimilar that they cannot form a single class. The court should adopt a broad approach to avoid giving unjustified veto rights to minority creditors (Re Powerlong, §25). 34.I accept Mr Tai’s submissions that the Creditors are properly placed in one class. 35.First, the Creditors’ rights under the Existing Debt Instruments vis-à-vis the Company are not so dissimilar as to fracture the class (Re Hong Kong Airlines Ltd [2022] HKCFI 3792, §15):
36.Second, regardless of whether the Creditor is a holder of Existing Notes or Existing Loan, it is entitled to receive the same Scheme Consideration. 37.Third, the Consent Fee[29] would not fracture the class as all Creditors were given the same right to accede to the RSA, and the amount is very modest as compared to the estimated return under the Scheme (30.2-39.9%), and the estimated return in liquidation (3.2-6.2%) (Re Shimao, §30). 38.As regards AHG Work Fee, the relevant principles have been summarised in Re Kaisa Group Holdings Ltd [2025] HKCFI 2699, §41, as follows:
39.In the present case, AHG Work Fee is payable regardless of whether the Scheme takes effect, and its payment is not listed as a Restructuring Condition. It is therefore irrelevant to the class issue. 40.As for AHG Advisors Fee, this represents reimbursement of the actual costs incurred by AHG in engaging advisors who had been involved in devising the transaction structure and drafting the Restructuring documents. The amount of AHG Advisors Fee was fully disclosed in the ES. In any event, as the Fee is payable regardless of the Scheme taking effect, it would not give rise to a class issue. 41.Fourth, AHG have the rights under the New Notes to nominate the first sets of 3 “Noteholder Directors” to the Company and the Mainland subsidiaries within the New Issuer Group as well as the “Legal Representative” to the Mainland subsidiaries.[30] This would not fracture the class because:
C3. Sufficiency of information & discretionary factors 42.The information set out in an explanatory statement must be sufficient for the creditors to assess and form a view as to whether it is in their best interests to vote for the scheme. 43.Mr Tai submits that the Company has sufficiently explained the Scheme and the Restructuring in the Scheme Document in that:
44.Mr Tai points out that amongst the Creditors who participated at the Scheme Meeting, 78.55% (in value) are institutional or professional investors, and 98.37% of them voted in favour of the Scheme. Given their professional background, they can be expected to read the Scheme Document and form their own judgment on the merits of the Scheme (Re Helenbergh China Holdings Ltd [2024] HKCFI 2628, §46(1)). 45.The court would be slow to differ from the majorities’ view as businessmen are much better placed than the court in assessing what is commercially advantageous to them (Re Shimao, §47). I am satisfied that an intelligent and honest man would approve the Scheme given that the return under the Scheme (30.2-39.9%) is much higher than the rate of recovery in liquidation (3.2-6.2%). C4. International dimension and effectiveness 46.As the Company is listed on SEHK, the majority of the Creditors are either based in Hong Kong or have participated at the Scheme Meeting, and the Existing Loan is governed by Hong Kong law, there is sufficient connection between the Scheme and Hong Kong. 47.Although the Existing Notes are governed by New York law and the Gibb’s rule applies,[31] I agree with Mr Tai that this would not undermine the utility of the Scheme given that 96.57% (in value) of the holders of the Existing Notes participated at the Scheme Meeting, thereby submitted to the jurisdiction of the Hong Kong court. The Company does not intend to apply for recognition of the Scheme under Chapter 15 of the US Bankruptcy Code. 48.Lastly, the Company has complied with most of the Restructuring Conditions such that the RED will soon take place:
49.As stated above, for the purpose of implementing the Scheme, the Group will undertake a corporate restructuring exercise and transfer the Specified Assets into the New Issuer Group. This gives rise to a potential issue as to whether such restructuring would be challenged by the creditors outside the Scheme on the basis that it constitutes a preference or transaction at undervalue. 50.Mr Tai submits that it is most unlikely that the Company would go into liquidation since the debts outside the Scheme only account for 10.41% and 16.07% of the Company’s and the Group’s total indebtedness respectively. The Group’s indebtedness include inter-company debts, and the receivables payable to the Company (RMB 2.9 billion) exceed the amount payable by the Company (RMB 930.6 million)[34] by a very significant margin. The only major creditor outside the Scheme is Hang Seng Bank and the relevant debt is subject to a new bilateral arrangement entered into by the Bank and the Company which extended the timeframe for repayment.[35]
Mr Terrence Tai, instructed by Sidley Austin, for the Company [1] Wong 1, §22 [2] The Cayman Scheme was a scheme of arrangement sanctioned by the Grand Court of the Cayman Islands whereby the Company’s 3 outstanding senior notes were cancelled and the Existing Notes were issued in their place: Wong 1, §33 [3] The Group’s total assets and liabilities were approximately RMB 8.12 billion and RMB 7.93 billion respectively. Its current assets and liabilities were approximately RMB 3.26 billion and RMB 6.89 billion respectively. [4] Consisting of institutional funds holding or controlling more than 40.6% in the aggregate principal amount of the Existing Debt Instruments [5] Personally or by proxy [6] It represents around 83.93% of the Group’s borrowings [7] Prior to an amending agreement dated 14 September 2022, the interest rate was 12.0% per annum. [8] Golden Wheel Diamond Company Ltd which, as at the RED, will hold 100% equity interest in each offshore holding company that indirectly holds the “Specified Assets” (as set out in the Term Sheet). [9] Recovery Analysis, §§38-39 [10] That is, the Accrued Interest payable under the Existing Debt Instruments held by a Creditor as at the Record Time [11] Mega Drive Company Limited [12] AssetCo and 8 of its subsidiaries [13] The Excluded Assets specified in Annex III of the Term Sheet [14] Recovery Analysis, §39 [15] Wong 1, §90 [16] Cls. 12.4 & 12.5, Scheme; “Information Agent” means D.F. King Ltd acting as information agent for the Company in connection with the Restructuring [17] 5:00 pm HKT, 20 December 2024 [18] Debt owed to the Creditor on or before the Consent Fee Deadline [19] 11:00 pm HKT, 29 May 2025 [20] Golden Wheel Bright Jade Company Ltd [21] Cl. 11, Scheme [22] Cl. 26, Scheme [23] National Development and Reform Commission in the Mainland. The legal basis for seeking approval from NDRC has been discussed in Re Shimao Group Holdings Limited [2025] HKCFI 1751, §20 [24] Cls. 6.2(e) & 7 [25] Cl. 5.6, Scheme; “Voting Scheme Claims” means, for the purpose of assessing a Creditor’s Claims for voting purposes, a value equal to the sum of (i) outstanding principal amount of the Existing Debt Instruments in which each Scheme Creditor held a legal or beneficial interest as principal at the Record Time (without double counting) and (ii) all accrued and unpaid interest relating to such Existing Debt Instruments up to (but excluding) the Record Time [26] Wong 1, §35 [27] Wong 1, §35 and footnote 25 [28] Wong 1, §39; §6.3(g), Explanatory Statement (“ES”) [29] Payment of which is a Restructuring Condition under cl.15.1(c) [30] Indenture governing New Notes cl.4.26 [31] Discharge from any debt or liability under bankruptcy laws foreign to Hong Kong would only be a discharge in Hong Kong so long as it is a discharge under the applicable law to the contract from which the debt or liability arose (Re Sino-Ocean Land (Hong Kong) Ltd [2025] 2 HKLRD 518, §50 and footnote 8). [32] §52, Wong 2 [33] §§42-5, Wong 2 [34] Recovery Analysis, App 3 [35] Wong 1, §43 |
Cases cited in this judgment
Other judgments that cite this case