Re La Mode (Far East) Ltd.

HCCW001161/2000

HCCW 1161/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP NO. 1161 OF 2000

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Coram: Hon Yuen J in Court

Dates of Hearing: 29 April 2002

Date of Judgment: 29 April 2002

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J U D G M E N T

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1.This petition was based upon a Labour Tribunal award in the sum of $260,000.00 odd which award was made in March 2000. No stay of execution was obtained by the Company in relation to that award.

2.A statutory demand for that sum was made in August 2000 and that was not satisfied. It was in those circumstances that in December 2000, the present petition was presented to court.

3.The affidavit first filed on behalf of the Company by its solicitor said, amongst other things, that the Company had no money of its own and that it was just a purchasing arm of another company in the United States. It was only when the petition was presented that an application was made by the Company to appeal in February 2001 from the award of the Labour Tribunal which, as I have indicated, was made as long ago as March 2000.

4.Considerable indulgence was given to the Company in that it was able to get time to appeal against the award of the Labour Tribunal. That of course also required the giving of time by another court to proceed with the appeal so late after the award was made.

5.Eventually, a Deputy Judge of the High Court gave leave to the Company to return to the Labour Tribunal so as to ask the Labour Tribunal to consider an application to set aside the award, and the matter was subsequently adjourned in the Companies Court to the first Monday after the hearing at the Labour Tribunal of the application to set aside the award.

6.Today, the Petitioner has indicated that as a result of a settlement between the Petitioner and the Company, the Petitioner no longer wishes to proceed against the Company and asks for a dismissal of petition but that there should be no order as to costs.

7.On behalf of the Company, it has been submitted that as the ex gratia award on which the settlement was based was only $4,000.00 out of the original Labour Tribunal award of $260,000.00, the Company should get its costs.

8.In my view, in view of the fact that the Labour Tribunal award was made as long ago as March 2000, some 9 months before the petition, and no application was made by the Company either to set it aside or for a stay of execution, the presentation of the petition in December 2000 by the Petitioner was certainly justified and I note the considerable indulgences given by this court as well as another court to the Company which eventually resulted in this settlement.

9.In view of the Company's own delay in setting aside the Labour Tribunal award on which the petition was based, I consider that the correct order as to costs should be that there should be no order.

Representation:

Miss K M Lee, from the Legal Aid Department, for the Petitioner

Mr J Maurellet, instructed by Wong & Lam, for the Company

Miss McKenna from the Official Receiver's Office