Re Trans Globe Maritime Ltd

HCCW000059/1978

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Coram: Li, J. in Court

Date of Judgment: 8 January 1979

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JUDGMENT

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1. This is a simple point. However it involves a point of principle which has not been queried before. The short question is whether, in a petition for the compulsory winding up of a company the Official Receiver is required to appear in Court and, as such, entitled to costs upon the Petition being withdrawn. As a matter of practice up to 1977, whenever a Petition was pursued the Petitioner invariably serve a copy of the Petition and supporting documents on the Official Receiver who invariably appeared and, on the Petitioner being granted leave to withdraw, asked for and obtained costs. Indeed the requirement of serving a copy of documents on the Official Receiver has been made compulsory by virtue of Rule 23A of the Companies (Winding Up) Rules since 1977.

2. On the 16th October, 1978, at the hearing of this Petition the original Petitioner applied for and obtained leave to withdraw subject to payment of $500 in agreed costs to the Official Receiver. Counsel for a supporting creditor then applied for and obtained leave to be substituted as Petitioner for the prosecution of the Petition. The hearing was adjourned 28 days to enable admendments to be made to the Petition and advertisments in compliance with the Winding Up Rules.

3. At the resumed hearing on 16th November, 1978 counsel for the substituted petitioner asked for a further adjournment to negotiate with the debtor company.

4. At the hearing on 14th December, 1978 counsel for the substituted petitioner applied for leave to withdraw on the ground that his client had been paid.

5. The question whether the Official Receiver is entitled to his costs for his appearance on 16th Nov ember and 14th December has been queried. Having considered arguments I am of the opinion the Official Receiver is not entitled to costs and indeed the Official Receiver has no obligation to appear at the hearing of such Petitions. The service of documents upon the Official Receiver is for information only. Rule 30 of the Companies (Winding Up) Rules requires that every person who intends to appear on the hearing of a petition shall serve on the petitioner notice of his intention to do so. Rule 34 of the same requires the Registrar of High Court to give notice to the Official Receiver on the same day when a winding up order has been made. This clearly envisages that the Official Receiver need not be in Court and therefore has no notice of the making of the order. If a further example is necessary we may find the difference in the provisions of the Bankruptcy Ordinance and those of the Companies Ordinance.

6. Section 11 of the Bankruptcy Ordinance provides that on the hearing of any petition it shall be lawful for the Official Receiver to appear, to call witnesses, examine or cross-examine any witness and to support or oppose the making of a Receiving Order. No such provision appears in the Companies Ordinance. Indeed, different provisions as to when a winding up order should or should not be made are contained within the four walls of the Companies Ordinance.

7. For these reasons I find that the Official Receiver is not obliged to appear in a Winding Up Petition entitled to his costs on the petition being withdrawn. However, I shall not interfere with my Order regarding the original petitioner since it was in the nature of a consent order.

Representation:

Mr. Rogers (Lau, Wong & Chan) for Petitioner

Mr. M.E. Brown for Official Receiver