Re W & J International Ltd

HCCW000029A/1984

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Coram: The Honourable Mr. Justice Jones in Court.

Date of hearing: 20 February 1984

Date of delivery of judgment: 20 February 1984

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JUDGMENT

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1. This in an application by the North Carolina National Banh (Petitioner) for a winding up order to be made against N & J International Limited (Company).

2. The petition is based upon a debt of $2,942,142.32 due to the Petitioner at the 13th October 1983 in respect of banking facilities granted by the Petitioner to the Company. Pursuant to S. 178A of the Companies Ordinance a notice dated the 23rd November 1983 demanding payment was made by the Petitioner but was not complied with within the statutory period of 3 weeks. The petition reveals that the Company is indebted to other creditors in the sum of HK$91,341.57, NS$18,521,551.87 and DM8,611,261.40.

3. There are two directors of the Company, Mr. C.T. Mirchandani who in the chairman and permanent director and Mr. J.M. Thadani. Both of then have executed personal guarantees in favour of creditors of the Company including the Petitioner. In about August 1983 Mr. C.T. Mirchandani left Hong Kong and has not since returned. It is alleged that he left with intent to defeat or delay the claims of the petitioner and other creditors.

4. The Petitioner seeks an order to wind up the Company on the grounds that the Company is insolvent and unable to pay its debts and that it is just and equitable to do so.

5. On the 19th January 1984, the day that the petition was filed, Hooper, J. upon the application of the Petitioner made an order ex-parte appointing the Official Peceiver to be provisional liquidator until the hearing of the petition or until further order. Subsequently the Company sought an order to diecharge the appointment of the provisional liquidator, but after a lengthy contested hearing the application was dismissed on the 13th Pebruary 1984. A written judgment has been prepared by Hooper, J. which is in course of being typed, but it will not be ready for a few days. However, in the course of his oral judgment Hooper, J. said that he made a provisional finding that the Petitioners have a prima facie case for a winding up order to be made and that he had considered if there was a genuine bona fide dispute with regard to the Company's indebtedness.

6. Mr. Wong who appeared to-day on behalf of the Company seeks an adjournment for one week or until the receipt of the judgment of Hooper, J. in order that be can properly advise his clients whether to oppose this petition. No notice of intention to appear upon the hearing of the petition was filed pursuant to Rule 30 of the Companies (Winding-Up) Rules, nor has any affidavit in opposition within 7 days of the date on which the affidavit verifying the petition was filed in accordance with Rule 32.

7. Mr. Wong submits that the affidavits filed in the proce4dings to discharge the appointment of the provisional liquidator should serve this purpose. However I am unable to agree. Mr. Wong also tendered a copy of an affidavit purported to have been made by Mr. C.T. Mrchandani. He informed me that the original was on its way by courier from Paris. This document in not acceptable for apart from any other reason it has not in any event been notarised. Mr. Wong also requests that if I was disposed to making a winding up order he had objection to the petition on the grounds that it was defective. However, no evidence was placed before me to substantiate this contention. He also asked that Mr. Poon who appeared for the Petitioner should open the case before me. In the absence of any valid opposition there was no necessity for this course to be adopted.

8. In fact it appears from what I have been told by Mr. Knos for the Official Receiver that until last Saturday the Company had no intention to contest these proceedings.

9. In my opinion Hooper, J. in his judgment necessarily came to a provisional conclusion that the Company had failed to show that there was any bona fide dispute as to its indebtedness since that time there has been no change in the position. The only reason for to-day's adjournment is to enable the Company to see written confirmation of that fact.

10. No grounds have been raised by the Company to justify the application for an adjournment. There will be the usual winding up order with costs including one set of costs for the Supporting Creditors to be paid out of the assets.

Representation:

Mr. Winster Poon (Johnson, Stokes & Master) for the Petitioner and Supporting Creditors.

Mr. Ronny Wong (Fairbairn & Kwok) for the Company.

Mr. Knos for the Official Receiver.