Liu Hui v. Pacific Rise Enterprise Ltd

HCCW000194/2003

HCCW 194/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 194 OF 2003

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Coram: Hon Kwan J in Court

Date of Hearing: 19 May 2003

Date of Judgment: 19 May 2003

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J U D G M E N T

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1.This petition to wind up Pacific Rise Enterprise Limited ("the Company") is presented by Mr Liu Hui based on a judgment debt in the sum of US$135,000.00 in High Court Action No. 1304 of 2002. The judgment was entered on 28 November 2002 pursuant to an unless order made by Master Levy on 1 November 2002. A demand for the judgment debt was served on the Company on 17 December 2002 and the petition herein was presented on 18 February 2003. The judgment debt arose in this manner.

2.On 8 April 2002, a writ was issued by the petitioner in the High Court Action seeking payment of US$135,000.00 on the basis of an agreement made between the petitioner and the Company on or about 31 October 1997. Under that agreement, the petitioner instructed and authorized the Company to make an application on behalf of the petitioner and his wife for immigration to the United States under the investor category and pursuant to the agreement the petitioner paid over to the Company in October and November 1997 a total sum of US$135,000.00.

3.Despite a lapse of more than four years since the signing of the agreement, the petitioner has not been able to immigrate to the United States and is even uncertain as to whether the Company has filed any application on his behalf to the authorities there. Hence, the petitioner issued the writ when the Company failed to return the sum of US$135,000.00 to him.

4.The Company filed a defence and counterclaim on 29 July 2002 and on 24 September 2002 the petitioner filed a request for further and better particulars of the defence and counterclaim. As the Company did not reply to this request, the petitioner issued a summons on 23 October 2002 for an unless order for the particulars requested to be supplied.

5.The Company did not appear by solicitors at the hearing before the Master on 1 November 2002, nor did it seek leave for one of its directors to represent the Company. Master Levy made an order in terms as per the summons. As no particulars were supplied by the Company pursuant to the order, judgment was entered against the Company on 28 November 2002.

6.The Company has opposed the winding-up petition and filed an affirmation made by one Sylvia Tang Wai Yee, who is a consultant of the Company, on 17 April 2003. It is stated in that affirmation that the Company intends to set aside the judgment entered pursuant to the unless order. However, as of today, no such application has been taken out by the Company. The Company also maintains in the affirmation of Miss Tang that the request for further and better particulars is entirely irrelevant to the issues in dispute and that the petitioner is not entitled to any of the particulars requested.

7.I have ascertained from Mr Dennis Sit who appears for the Company today whether it is the Company's firm stance that the Company will not supply any of the particulars requested. I am given to understand by counsel that he has no specific instructions on this. I am also informed by Mr Sit that the Company still opposes the petition but has no specific grounds of opposition.

8.Having looked at the defence and counterclaim filed by the Company in the High Court Action, I have no hesitation in coming to the view that some, if not a large part, of the requests for particulars made by the petitioner are wholly justified. It seems to me that the Company is adopting a purely delaying tactic in opposing this petition.

9.In view of the fact that the Company has no or no firm intention to comply with the unless order made by the Court and supply the particulars sought, I see no point in adjourning the petition to give an opportunity to the Company to apply to set aside the judgment entered pursuant to the unless order.

10.In the circumstances, I think it is only appropriate that a winding-up order be made against the Company and I so order. I order that the petitioner's costs in this petition are to be paid out of the Company's assets.

Representation:

Mr Johnny Ma, instructed by Messrs Livasiri & Co., for the Petitioner

Mr Dennis W Sit, instructed by Messrs Chan & Cheng, for the Company

Miss Sara Chung, for the Official Receiver