Read the full judgment text of HCCW 000270/1994 on BabelCite. This High Court CFI judgment was delivered on 5 July 1996 before The Hon Mrs Justice Le Pichon.
Company law – winding-up petition – application for leave to re-amend the Petition – addition of two allegations: (1) breach of s.80 of the International Business Companies Ordinance of the British Virgin Islands in respect of transfers forming the final phase of the restructuring of the group; and (2) disposal of eight houses at 52 Plantation Road at an undervalue with alleged non-disclosure by Thomas Chan to the Petitioner – whether the allegations were abandoned by omission from the original Petition despite being raised in pre-petition correspondence – whether reinstatement of an abandoned claim is permissible – the Cargill v. Bower line of authority considered and held not to be an absolute bar to reinstatement of a deliberately omitted claim, the court retaining a discretion – winding-up petition having no equivalent of a writ and statement of claim, so pre-petition correspondence cannot be equated with pleadings – Woomera Co. Ltd. v. Provident Centre Development Ltd. applied – whether allowing the amendments would cause prejudice to the Respondent and Opposing Contributories – principles in Ketteman v. Hansel Properties Ltd. applied – burden on opposing party to show non-compensable prejudice (Kwan Shiu Cheong Charles v. Ferrari SpA) – submissions based on lack of draft affidavit, need for extensive factual and expert evidence on BVI law, open-ended discovery, Mr Chan Tai Ho's health, and Mr Thomas Chan's management burden rejected – s.80 issue substantially a question of law and Plantation Road issue a narrow non-disclosure complaint – leave to re-amend granted – discovery – O.24, r.3 of the Rules of the Supreme Court – whether an order for discovery of minute books of group companies, loan documents, and dividend records can be made without the supporting affidavit required by O.24, r.7(3) – r.3 and r.7 held to overlap – broad and flexible construction of r.3 justified in winding-up proceedings where there is no general discovery – requests related to 'matters in question' between the parties – form not to prevail over substance – discovery ordered with lists of documents to be served by 2 August 1996 – ancillary orders made for filing of reply affirmations, exchange of trial documents by 9 August 1996, merger of lists of issues, and provision of Chinese translations by 2 August 1996 – costs of 1 July hearing to be costs in the cause, costs of 4 and 5 July hearing to the Petitioner (Lessy S.A.R.L. and Pacific Star Development Ltd. applied).
Legal issues: Whether proposed amendments to winding-up petition were abandoned by omission from the Petition · Whether allowing the proposed amendments would cause prejudice to the Respondent and Opposing Contributories · Whether an order for discovery against the Respondent and Opposing Contributories could be made under O.24, r.3 without a supporting affidavit
Outcome: Petitioner granted leave to re-amend the Petition; discovery ordered against the Respondent and the Opposing Contributories; ancillary orders made for filing of evidence, exchange of documents, list of issues, and Chinese translations. Costs of the 1 July hearing to be costs in the cause; costs of the 4 and 5 July hearing to the Petitioner.