Read the full judgment text of HCMP 73/2009 on BabelCite. This Court of First Instance judgment was delivered on 5 August 2009 before Kwan J.
Civil procedure – winding-up – statutory demand – application to restrain presentation of winding-up petition – cross-claim petition – reverse cross-claim – long-term iron ore supply agreement – arbitration – inability to litigate – whether petition debt is genuinely disputed – whether company has established genuine and serious cross-claims for short delivery of iron ore in 2006 and 2007 and for detention – whether reverse cross-claim of MGM is disputed on substantial grounds – American Cyanamid principles held inapplicable where injunction would finally dispose of dispute – quia timet injunction may be granted only on clear and persuasive grounds where petition would be abuse of process – company bears onus of establishing cross-claim is genuine, serious and of substance – inability to litigate not an absolute requirement in Hong Kong, following the English approach in Popely v Popely and Re Pan Interiors – existence of arbitration does not prevent court from considering bona fide dispute of substance – statutory demand of US$8,669,838.67 for balance of price under final adjusted invoices for three shipments of iron ore – cross-claims of US$14,767,377.37 established for demurrage on Ever Shining and Elinakos (US$314,694.10), detention on Cape Courage (US$450,505.04), loss of profit for short delivery in 2006 (US$2,168,065.98) and in 2007 (US$11,834,112.25) – cross-claim for January 2007 shipment failed as Company had requested discount not provided for in Agreement – reverse cross-claim of MGM for loss of profits arising from termination of Agreement for failure to open letter of credit and nominate vessels, between US$6,865,200 and US$15,253,200 for the period September 2008 to 31 March 2009, held not disputed on substantial grounds – force majeure and clause 16.1 defences to reverse cross-claim rejected – application for injunction dismissed – order nisi for costs in favour of MGM.
Legal issues: Whether the debt in the statutory demand is disputed · Whether the Company has a genuine cross-claim for short delivery in 2006 · Whether the Company has a genuine cross-claim for short delivery in 2007 · Whether the Company has a genuine cross-claim for detention · Whether MGM's reverse cross-claim is disputed on substantial grounds · Whether to grant injunction restraining presentation of winding-up petition
Outcome: The Company's application for an injunction to restrain the presentation of a winding-up petition was dismissed.
Cited by 1 case