Re Wing Fai Construction Co. Ltd.

HCCW000735/2002

HCCW 735/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 735 OF 2002

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Coram: Hon Kwan J in Chambers

Date of Hearing: 12 November 2002

Date of Decision: 12 November 2002

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D E C I S I O N

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1.This is an application for interim payment made by the provisional liquidators who were appointed by an order made on 6 July 2002. The summons asks for interim payment to be made to the provisional liquidators limited to 80% of the invoices issued by RSM Nelson Wheeler Corporate Services Limited ("Nelson Wheeler") representing the provisional liquidators' costs, charges and expenses, together with the costs, charges and expenses of all persons retained or employed by the provisional liquidators and all other costs and expenses incurred in the course of the provisional liquidation, out of the assets of the Company, upon the undertaking by Nelson Wheeler and the provisional liquidators to repay to the administration of the Company any shortfall should the invoices be reduced on taxation.

2.It would appear that this summons is not the first time that the provisional liquidators have applied to the court for an order of this kind. I note in the correspondence file that on 4 September 2002, the solicitors for the provisional liquidators had written to the clerk of Suffiad J, who made the order appointing the provisional liquidators, seeking a similar order. That application was dismissed by Suffiad J on paper on 9 September 2002. The summons I am dealing with was issued on 23 October 2002.

3.It would appear from the supporting affidavit that the basis for making this application is that, according to the experience of the provisional liquidators, the Taxing Master's Office would take about 5 months to tax the bills submitted by the provisional liquidators. Because of this delay due to the workload in the Taxing Master's Office, the provisional liquidators have sought interim payment up to 80% of their bills.

4.I must point out that if there is this kind of delay as alleged by the provisional liquidators, there are ways and means open to them to ask the court to expedite the matter. What seems to me to be unacceptable is that even before they have submitted the bills for taxation, they ask for an order of interim payment. I was referred by Mr De Witt, who appeared for the provisional liquidators, to the order for interim payment made in Re Peregrine Investment Holdings Limited. It was submitted that this case provided a precedent of allowing interim payment to be made to the provisional liquidators on account of their fees, upon their undertaking to repay any shortfall if the bills should be reduced on taxation.

5.As I have pointed out to Mr De Witt, in the Peregrine matter, the provisional liquidators were kept out of their fees for a much longer period. This case is not authority for the practice adopted here, which is to ask for interim payment even before a bill is submitted to the court for taxation.

6.I should add that in the supporting affidavit, the bills of the provisional liquidators were not exhibited, I was only handed those bills dated 31 July 2002 and 31 August 2002 by Mr De Witt this morning. I am of the view that it would be wholly inappropriate for an order for interim payment to be made in this case and I dismiss the application.

7.I make no order as to the costs of this application.

Representation:

Mr I DeWitt, of Messrs Tanner De Witt, for the Provisional Liquidators.

The Official Receiver, attendance excused.