Metroplex Berhad v. Fernando Gasper and Another

CACV 58/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 58 OF 2011

(ON APPEAL FROM HCCW 1139/2004)

____________

BETWEEN

____________

______________________________

REASONS FOR JUDGMENT

______________________________

Hon Cheung CJHC:

1.On 4 January 2012, we dismissed the applicant’s appeal from the order and judgment dated 7 March 2011 of Fok JA (sitting as an additional judge of the Court of First Instance). On 19 January 2012, we handed down our reasons for judgment.

2.On 26 April 2012, we dismissed the applicant’s application for leave to appeal to the Court of Final Appeal. We now give our reasons.

3.The facts and issues involved, as well as the court’s reasons for dismissing the appeal, have been fully set out in the reasons for judgment.  They will not be repeated.

4.The application for leave to appeal to the Court of Final Appeal is based on the “great general or public importance” ground and the “or otherwise” ground.

5.The amended notice of motion sets out nine questions, which are said to be of great general or public importance. They are lengthy questions and it is not necessary to set them out here.  They fall into two groups.  Questions 1 to 5 all revolve around the question of whether the statutory scheme imposes or can impose a duty on a liquidator to call for proofs of debt from creditors.  The remaining questions are ancillary to this, such as the rationale for such a duty and the circumstances in which it arises, or does not, as the case may be, particularly in a liquidation which is subject to a regulating order.

6.Questions 6 to 9 concern the duty of joint liquidators to assist the court or the Official Receiver in relation to the departure or taking up of full‑time employment by one of them.

7.In relation to questions 1 to 5, I have no doubt that they do not assist the applicant.  As the court pointed out in its reasons for judgment (paragraph 21), on the facts of the present case, the question is not so much whether a duty to call for proofs of debt exists, but rather when and at what stage proofs of debt should be called for.  And that is a fact sensitive question.  I do not think any questions of great general or public importance that should go to the Court of Final Appeal are involved.

8.In the present case, as Mr Richard Zimmern for the respondent liquidators has reminded the court in his written submissions, one is concerned with a regulated winding up where the calling of the first meeting of creditors and contributories to appoint a committee of inquiry was dispensed with.  There have been no creditors meetings since or at which to vote.  There is no distribution likely or available for creditors, much less so the contributories.  Further, the liquidation is near an end.  In those circumstances, as the court held, the need for proofs of debt has not arisen; and in any event the applicant has simply failed to demonstrate why or how the calling of proofs would be a ground for the removal of the respondents or for any other relief.

9.In particular, the purported failure to call for proofs cannot amount to bias nor amount to a dereliction of duty as there has been no votes or distribution.  It would not alter the fact that the financial creditors are the majority creditors and that the informal consultations with them are perfectly legitimate.

10.In those circumstances, the purported questions of great general or public importance simply are not determinative of the proceedings or the relief sought.  They are academic and futile.

11.As for questions 6 to 9, the questions relating to full‑time employment or departure are really fact sensitive ones.  I do not believe any questions of great general or public importance are involved.  On the facts, these matters were not determinative of the question of removal or of the exercise of Fok JA’s discretion.

12.This is a typical case where the applicant must not be permitted to have “a third bite of the cherry” : China Field Ltd v Appeal Tribunal (Buildings)(No 1) (2009) 12 HKCFAR 68, para 16.

13.The “or otherwise” ground is a non‑starter in the present case.  There are simply no exceptional circumstances to justify the granting of leave on that basis.

14.As for costs, costs should follow the event.

15.For all these reasons, the application for leave to appeal was dismissed with costs to the respondents.

Hon Tang VP:

16.I agree.

Hon Bharwaney J:

17.I agree with the Chief Judge.

Mr Yang-Wahn Hew, instructed by Squire Sanders, for the applicant

Mr Richard Zimmern, instructed by Mayer Brown JSM, for the respondents