Aggressive Construction Company Ltd v. Wing Yip Building Materials & Engineering Co Ltd

HCMP 446/2025

[2026] HKCFI 41

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 446 OF 2025

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DECISION

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A. Introduction

1.In this decision, I adopt the definitions and nomenclature that were used in my judgment dated 13 November 2025 (see [2025] HKCFI 5586) (the “Judgement”).

2.The issues in dispute in these proceedings concern whether there are bona fide disputes on substantial grounds in relation to the claims under the 1^st SD and 2^nd SD issued by the Defendant, such that the Plaintiff is entitled to an injunction restraining the Defendant from pursuing a winding-up petition.

3.At the hearing that took place on 13 November 2025, the parties focused on arguing whether there were bona fide disputes, and they did not make submissions on matters relating to balance of convenience/justice.

4.For the reasons set out in the said Judgment, I was of the view that:-

(1)     the Plaintiff was able to raise a bona fide dispute on substantial grounds in relation to the claims under the 1^st SD (see paras 18 to 33); and

(2)     the Defendant failed to raise a bona fide dispute on substantial grounds in relation to the claims under the 2^nd SD (see paras 34 to 49).

5.In the premises:-

(1)     I granted an interlocutory injunction restraining the Defendant from presenting, taking out, and/or advertising any winding-up petition against the Petitioner based on the 1^st SD;

(2)     I refused to grant an interlocutory injunction restraining the Defendant from presenting, taking out, and/or advertising winding-up petition against the Petitioner based on the 2^nd SD; and

(3)     I made no order as to costs.

(see paras 50 to 52)

6.It appears that the parties had confusion as to whether the orders that I made were final or interlocutory in nature.  As pointed out in my letter to the parties dated 1 December 2025, what was fixed before me at the hearing on 13 November 2025 was the Plaintiff’s summons dated 24 March 2025 seeking an interlocutory injunction against the Defendant. Thus, I could only have disposed of the Plaintiff’s interlocutory applications under its summons dated 24 March 2025 (as opposed the underlying originating summons).

7.By summons dated 27 November 2025[1], the Plaintiff seeks leave to appeal my decision of refusing to grant an interlocutory injunction in its favour in regard to the 2^nd SD.

8.Pursuant to my directions given on 2 December 2025, the parties have lodged written submissions, which I have considered.

B.      Legal Principles

9.Under section 14AA(4) of the High Court Ordinance (Cap. 4), no leave to appeal shall be granted unless the proposed appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard.

10.The party that seeks to appeal bears the burden of satisfying the Court that his or her appeal has a reasonable prospect of success.  This means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable: SMSE v KL [2009] 4 HKLRD 125 at para 17.

C.      Deliberation

11.As stated in the draft notice of appeal annexed to its summons dated 27 November 2025, the Plaintiff’s sole intended ground of appeal is as follows:-

“The learned Judge misconstrued clause 4.1 of the 3^rd Sub‑Contract (AGG/A024a/SUB/03081). On the true construction of this clause, the liability to pay is only triggered if two conditions are satisfied: (1) the Defendant makes a payment application to the Plaintiff’s commercial department (呈交糧款申請書予商務部) and (2) the Plaintiff’s commercial department receives it in such a way. On that construction, there is a bona fide dispute on substantial grounds on whether (1) has been satisfied.”

12.For the following reasons, I am not of the view that the Plaintiff’s intended appeal is reasonably arguable.

13.First of all, the Plaintiff’s complaint does not even arise in light of my factual findings (which are not challenged):-

(1)     It is the Plaintiff’s case that any application for payment must be made to the Plaintiff’s commercial department, and the premise of the Plaintiff’s complaint is that the Defendant’s payment application (which gave rise to the claim under the 2^nd SD) was not made to the Plaintiff’s commercial department at all.

(2)      This is a false premise.

(3)     As pointed out in paragraphs 35 and 36 of my Judgment, the Defendant’s payment application was emailed to “[email protected]” (which belongs to Mr KK Tam, an executive assistant of the Plaintiff), and it was addressed to, inter alios, Mr Jan Poon, who is the Plaintiff’s commercial manager.

(4)     For the reasons elaborated in paragraphs 39 to 46 of my Judgment, I drew an adverse inference from the Plaintiff’s inexplicable failure to adduce any evidence from, inter alia, Mr KK Tam and Mr Jan Poon. I found that the Defendant’s payment application must have been provided to and received by Plaintiff’s commercial manager (ie Mr Jan Poon) and/or commercial department via Mr KK Tam. 

(5)     My factual findings are not challenged by the Plaintiff.

(6)     In the premises, on my factual findings, it can be said that the Defendant’s payment application was indeed made to the Plaintiff’s commercial department, and this was done through Mr KK Tam.

(7)     In this connection, I accept that Mr KK Tam was not under an obligation to provide and/or forward the Defendant’s application to the Plaintiff’s commercial department, and he could have refused to render assistance.  However, once Mr KK Tam chose to render assistance by providing and/or forwarding the Defendant’s payment application to the Plaintiff’s commercial department, it cannot be said that no payment application had been made to the Plaintiff’s commercial department at all.  

(8)     Having considered the circumstances relating to the parties’ dispute and the evidence before the court, I found that what happened was that Mr KK Tam did render cooperation by providing and/or forwarding the Defendant’s payment application to the Plaintiff’s commercial manager (ie Mr Jan Poon) and/or commercial department.  This was the only explanation as to why the Plaintiff refused to adduce any evidence from any of the relevant personnel, including Mr KK Tam and Mr Jan Poon: see my Judgment, paras 39 to 46.

14.Second, in any event, I am the view that there is no merit in the Plaintiff’s argument that so long as its commercial department did not receive a payment application from the Defendant directly, it was not under any obligation to pay:-

(1)     For the reasons elaborated in paragraphs 47 to 48 of my Judgment, it is obvious that the underlying objective of the relevant provisions of the 3^rd Sub-Contract (ie the signing sheet and clause 4.1) is to ensure that the payment application would reachthe Plaintiff’s commercial department, such that it would be in a position to process the same within 30 days.

(2)     The crux of the parties’ dispute is whether the Plaintiff’s commercial department had actually received the payment application.  As pointed out, I found that Mr KK Tam must have provided and/or forwarded the Defendant’s payment application to the Plaintiff’s commercial manager (ie Mr Jan Poon) and/or commercial department, and my factual findings are not challenged.

(3)     With respect, I simply cannot see how it can be said that no payment application had been made when the Plaintiff’s commercial department and/or commercial manager had actually received the same. The suggestion is not even logical.

(4)     It appears to me that what the Plaintiff seeks to do is to make a song and dance about the person through whom its commercial department received the Defendant’s payment application. This is not the focus at all. Instead, the focus is whether the payment application had actually reached and/or been received by Plaintiff’s commercial department, such that the same could be processed.

(5)     In this connection, the 3^rd Sub Contract does not stipulate the method by which to submit a payment application to the Plaintiff’s commercial department.  There is nothing in the 3^rd Sub Contract suggesting that the Defendant may not submit a payment application via another person (such as Mr KK Tam).  As pointed out in paragraph 48 of my Judgment, there is no sound commercial reason why the Defendant may not rely on another person (such as Mr KK Tam) who is willing to render assistance.

15.For the above reasons, I conclude that the Plaintiff’s intended appeal is unarguable.  As such, I refuse to grant leave to appeal to the Plaintiff.

16.For completeness, it should be mentioned that in light of the conclusion in my Judgment, the Plaintiff has already paid the indebtedness under the 2^nd SD (ie HK$348,824.89) to the Defendant.  In this connection, I am inclined to accept the Plaintiff’s suggestion that it was effectively compelled to make the payment, and thus if my conclusion in respect of the 2^nd SD were wrong, the Plaintiff may have a right to seek restitution against the Defendant.

17.In the premises, it is, to say the least, arguable that from a practical point of view, the Plaintiff’s intended appeal is not wholly academic.  However, for the reasons explained above, I am not of the view that the Plaintiff’s intended appeal is arguable, and this is the reason why I refuse to grant leave in favour of the Plaintiff.

D.      The New Evidence Application

18.The Plaintiff seeks leave to adduce the 3^rd affirmation of Mr Lee Sun Wing for the purposes of addressing the following matters:-

(1)     the fact the indebtedness under the 2^nd SD was paid to the Plaintiff on 14 November 2025; and

(2)     the fact the Plaintiff engaged 23 sub-contractors, and the sub-contracts with these sub-contractors contain clauses that are similar to clause 4.1 of the 3^rd Sub-Contract.

19.Insofar as the fact that the indebtedness under the 2^nd SD has been paid is concerned, this is incontrovertible.  Indeed, the Defendant does not assert that the indebtedness has not been repaid.  I am not of the view that it is necessary for the Plaintiff to adduce any new evidence on this matter.

20.As regards the suggestion that the Plaintiff engaged other sub‑contractors on terms similar to clause 4.1 of the 3^rd Sub-Contract, the Plaintiff contended that if my Judgment were correct, these sub-contractors would leave their payment applications with the Plaintiff’s employees who are not part of its commercial department, and these employees would be expected to pass on the payment applications.  This would be burdensome and unworkable.

21.With respect, it appears that the Plaintiff has misunderstood my Judgment. The undesirable practical consequences alleged by the Plaintiff would not arise at all. At the risk of repetition, it should be reiterated that I did not find and/or conclude that Mr KK Tam and/or any employee of the Plaintiff had an obligation to pass on the Defendant’s payment application to the Plaintiff’s commercial department.  On the contrary, as pointed out above, I was (and still am) of the view that they did not have such an obligation. They were entitled to return the payment application to the sub-contractor and/or indicate that no assistance would be rendered.  Nonetheless, once Mr KK Tam (and/or any other person) chose to render assistance by forwarding or providing the payment application to the Plaintiff’s commercial department and the payment application did reach the Plaintiff’s commercial department, there would be no room to suggest that no payment application had been made to the Plaintiff’s commercial department at all.

22.In any event, it appears that the sub-contracts with other sub‑contractors were at all material times in the Plaintiff’s possession.  I do not see any good reason why the same were not produced as evidence before the hearing on 13 November 2025 took place.  I am not of the view that the first condition of Ladd v Marshall is satisfied.

23.For the above reasons, I refused to grant leave for the Plaintiff to adduce the 3^rd affirmation of Mr Lee Sun Wing.

E.      Disposition

24.For all the above reasons, I dismiss the Plaintiff’s application for leave to appeal and application to adduce the 3^rd affirmation of Mr Lee Sun Wing.

25.Costs should follow the event.

26.I order the Plaintiff to pay the Defendant’s costs in respect of the aforesaid applications, to be taxed if not agreed with certificate for 2 counsel.

27.I thank Mr Bernard Man SC, Mr Alvin Cheung, Mr Richard Leung, and Mr Tommy Cheung for their helpful assistance.

Mr Bernard Man, SC and Mr Alvin Cheung, instructed by M/s LCP, for the Plaintiff

Mr Richard Leung and Mr Tommy Cheung, instructed by M/s CFN Lawyers, for the Defendant