Tzu Shin Shih v. Extra Excel International Ltd. and Others

HCCW001278/2001

HCCW 1278/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO. 1278 OF 2001

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Coram: Hon Yuen J in Court

Date of Hearing: 17 April 2002

Date of Judgment: 17 April 2002

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J U D G M E N T

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1.This is a summons issued by the Petitioner for an order that his petition be withdrawn. The summons has been opposed by the Company who says the petition should be dismissed instead of withdrawn.

2.The petition is based on "just and equitable" grounds. The Petitioner however is not a registered shareholder of the Company. He says that shares in the Company amounting to 16% of the total shareholding are held on trust for him by another shareholder who has been named as one of the respondents to the petition. The Petitioner says that he wishes to withdraw the petition because of a problem with his locus to present the petition.

3.The petition has been advertised and has come before the court on previous occasions. In February, I gave directions as to the further progress of the petition.

4.The Company has taken out an application for security of costs against the Petitioner who is resident out of the jurisdiction. That application for security for costs is scheduled to be heard by the Companies Master next Monday 22 April.

5.The Company wants the petition to be dismissed. It is clear that the Petitioner does not wish to proceed with this petition and the issue of whether he would in future be barred by reason of res judicata from presenting a petition on the same facts if he becomes a registered shareholder is another matter.

6.In this respect, the Petitioner wants an adjournment to see if he can cause the trustee to join as Co-Petitioner. On this aspect, Mr Chum says that he has no instructions and he subsequently asked for an adjournment to see if he could get instructions on this matter.

7.I would have been prepared to grant him such an adjournment if it were not for the appointment before the Master on Monday for security for costs. In my view, the parties should not have to incur the costs for that application if the petition is to be withdrawn or dismissed. On the other hand, should there be any changes in the Petitioner's position (and there appears to have been some changes in his position in the past), there would be a substantial delay before another appointment for security for costs could be obtained before the Master.

8.Accordingly, I refused the Petitioner's application for an adjournment. In my view, having issued this summons, he should have been ready for this case before appearing in court today.

9.As far as the summons is concerned, it is clear that the Petitioner does not wish to proceed with the Petition and there being no good reasons put before me why the petition should only be withdrawn, and the Company having not agreed to a withdrawal, I would, applying the usual principles, dismiss the petition.

Representation:

Mr David Y F Chum, instructed by Messrs Francis K W Ho & Co., for Petitioner

Mr Chua Guan Hock, instructed by Vivien Chan & Co., for Respondents

Miss McKenna, from the Official Receiver's Office