Re Sunni International Ltd
Read the full judgment text of HCCW 121/2013 on BabelCite. This High Court CFI judgment was delivered on 22 September 2014.
1. This is an ex parte application for leave to serve a winding-up petition out of the jurisdiction on a foreign company. The application initially went before a master, but was adjourned to a judge in chambers since there is some uncertainty as to the legal basis for service out of the jurisdiction of a petition to wind up a foreign company.
Cited by 5 cases · Cites 10 cases
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HCCW 121/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE COMPANIES (WINDING-UP) NO 121 OF 2013 ____________
____________ Before: Hon G Lam J in Chambers Date of Hearing: 13 August 2014 Date of Decision: 22 September 2014 _____________ D E C I S I O N _____________ Introduction 1.This is an ex parte application for leave to serve a winding-up petition out of the jurisdiction on a foreign company. The application initially went before a master, but was adjourned to a judge in chambers since there is some uncertainty as to the legal basis for service out of the jurisdiction of a petition to wind up a foreign company. Facts 2.Sunni International Limited (“the company”) is a company incorporated in the British Virgin Islands (“BVI”). It is not registered in Hong Kong under Part 11 of the old Companies Ordinance (Cap 32) or Part 16 of the new Companies Ordinance (Cap 622). 3.By the amended petition herein dated 28 February 2014, the petitioner seeks an order to wind up the company as an unregistered company pursuant to s 327(3)(b) of the Companies Ordinance (Cap 32) (since renamed the Companies (Winding Up and Miscellaneous Provisions) Ordinance), on the ground that the company is unable to pay its debts. 4.The petitioner is a judgment creditor of the company. It is also a shareholder of the company. It commenced an action, along with a few other shareholders in respect of their several debts, against the company in High Court Action No 2042 of 2011 in Hong Kong. On 12 December 2012, final judgment was entered against the company in default of notice of intention to defend, in the sum of over HK$2.9 million in favour of the petitioner and in various sums totalling over HK$16.6 million in favour of the other plaintiffs. 5.The petition states that the company is the corporate vehicle used by four families for their investment in business ventures. These families, comprising of Hong Kong permanent residents, hold shares in the company through other companies, including the petitioner. 6.The company used to hold a substantial number of shares in Imagi International Holdings Limited, a public company incorporated in Bermuda whose shares are listed on the Hong Kong stock exchange. The shares owned by the company were registered in its name but ceased to be so in 2011 or 2012. The petition asserts that if the shares are not being held by a nominee for the company but have been sold, then the proceeds of sale are still held within the jurisdiction. 7.The company also has a 60% equity interest in PBE International Holdings Limited, a company incorporated in Hong Kong, as well as bank accounts in Hong Kong including an account held in HSBC. 8.The sole director of the company since August 2008 is one Mr Francis Kao who holds a Hong Kong permanent resident identity card and ordinarily resides in Hong Kong. On this basis it is said that the central management and control of the company is exercised from Hong Kong. 9.On 10 January 2013, the petitioner’s lawyers in the BVI served on the registered agent of the company (who shares the same address as the registered office of the company) a sealed copy of the judgment and a demand to satisfy the judgment debt. The company has failed to pay any part of the debt. 10.On 3 May 2013, the petition herein was presented to the High Court of Hong Kong for the winding up of the company on the ground that it had failed to satisfy the judgment debt. 11.In August 2013, the petitioner caused a notice of the petition to be published in the Hong Kong Government Gazette and in Chinese and English newspapers published and circulating in Hong Kong. The petitioner also caused a sealed copy of the petition to be delivered to and left with an officer of the registered agent of the company. In September 2013, the petitioner placed an advertisement of the petition in two BVI newspapers and caused a notice to be published in the BVI Gazette. 12.In September 2013, a master of this court raised a requisition with the petitioner as to whether leave had been obtained to serve the petition out of the jurisdiction on the company. By an affirmation filed in November 2013, the petitioner asked for leave to re-serve the petition on the company at its registered office out of the jurisdiction. 13.Thereafter further requisitions were raised by the master with regard to the legal basis for obtaining leave to serve the petition out of the jurisdiction. Eventually, in June 2014, the companies judge was consulted and directed that the matter be fixed for hearing before a judge in chambers. 14.The Official Receiver, who has been served with the petition, has not taken part in these proceedings. Jurisdiction 15.The jurisdiction to wind up foreign companies is derived from s 327 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance. That section provides:
16.The phrase “unregistered company” is defined in s 326(1) as follows:
17.A foreign company is an unregistered company and may therefore be wound up by the court under s 327. There are other kinds of unregistered companies within the meaning of s 326 such as partnerships and associations. They are not relevant for present purposes and I shall not deal with them in this judgment. 18.Service of the petition on the company to be wound up is required by general principles of justice as the foundation of jurisdiction. Where the foreign company is a “non-Hong Kong company”[1] and registered under s 333 of the previous Companies Ordinance (Cap 32) or s 777 of the Companies Ordinance (Cap 622), the petition may of course be served in Hong Kong on the specified person authorised to accept service of process on behalf of the company.[2] 19.Where the foreign company has no place of business in Hong Kong and is not so registered, the petition cannot be served on the company at any address in Hong Kong. Instead, the petition has to be served on the company outside the jurisdiction. RHC Order 1 rule 2(2) 20.RHC Order 11 contains provisions that govern service of documents out of the jurisdiction. However, Mr Albert Yau, who appears for the petitioner, submits that the starting point is RHC Order 1 rule 2(2), by virtue of which Order 11 has no application to winding-up proceedings. 21.Order 1 rule 2 relevantly provides as follows:
22.It is correct that Order 1 rule 2(2) means that, by the terms of the Rules of the High Court themselves, those rules do not prima facie apply to winding up proceedings. However, rule 210 of the Companies (Winding-up) Rules (Cap 32H) provides:
23.The “rules” referred to in rule 210 means the Companies (Winding-up) Rules and the “court” referred to is the Court of First Instance: see rule 2. It is clear from rule 210 that the Companies (Winding-up) Rules are not intended to be a complete code: Murray-Jones v Guardforce Ltd [1982] HKC 31, 38C. The effect of rule 210 is that unless there is some other specific provision in the Companies Ordinance or the Companies (Winding-up) Rules, or unless the court otherwise directs, the Rules of the High Court apply to winding up proceedings. Rule 25 of Companies (Winding-up) Rules 24.Is there then any provision in the Companies Ordinance or the Companies (Winding-up) Rules that is relevant in the present context? The rule that deals specifically with service of petition is rule 25 of the Companies (Winding-up) Rules, which provides:
25.However, it has been held, correctly if I may respectfully say so, that the “registered office” and “principal place of business” referred to in that rule mean the registered office and principal place of business in Hong Kong. The rule is not intended to require or enable a petition to be served out of the jurisdiction at a place outside Hong Kong. Thus, in Re Tea Trading Co K and C Popoff Brothers[1933] Ch 647, 651, Maugham J, referring to the English equivalent of rule 25, held that:
26.The case is cited in Buckley on the Companies Acts (14th ed, 1981), vol 2, p 1665, as authority on the equivalent rule in England. Similarly, in Re Giant Wizard Corporation (HCCW 1196/2004; 22 December 2005), in the context of a winding-up petition under s 327 of the Companies Ordinance (Cap 32), Deputy Judge Mayo held, at §29, that:
27.Thus, where an unregistered company has or had a principal place of business in Hong Kong, even if it has not supplied the requisite particulars for registration under Part 16 of the Companies Ordinance (Cap 622), a petition to wind it up may be served on it at that place of business even after it has ceased business or been dissolved in its place of incorporation: Re Tea Trading Co K and C Popoff Brothers(supra); Re Naamlooze Vennootschap Handelmaatschappij Wokar [1946] Ch 98. 28.But rule 25 does not assist if the unregistered company has never had a registered office or place of business in Hong Kong. In such a case, there being no relevant provision in the winding-up rules or the Ordinance, one falls back on to the general rules of the High Court. It follows that what has been excluded for winding-up proceedings by RHC Order 1 rule 2(2) is made applicable by rule 210 of the Companies (Winding-up) Rules. The result seems to me to be that Order 11 is prima facie applicable to service of winding-up petitions outside the jurisdiction. 29.The same result obtains with respect to orders made in winding-up proceedings. Thus, as there is no provision in the winding-up rules on the service of orders made in winding-up proceedings, it has been held that Order 11 rule 9(4) applies to the service of an order for private examination under s 221 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance: Joint and Several Liquidators of B+B Construction Co Ltd (in liquidation) v Weinmann (HCCW 114/2001; 8 June 2004), §§88-91, per Kwan J (as she then was). RHC Order 11 30.I turn therefore to the provisions of RHC Order 11. Order 11 rule 1(1) is the sub-rule that sets out the numerous “gateways” for service of a writ of summons out of jurisdiction. It provides that service of a writ out of the jurisdiction is permissible with the leave of the court if the action begun by the writ satisfies any one of the conditions in paragraphs (a) to (p). 31.Rule 1(2) makes provisions as to when leave is not required for service of a writ out of the jurisdiction. This sub-rule reads:
32.Order 11 rule 9(1) makes rule 1 applicable to originating summonses, motions and petitions by providing as follows:
33.Order 11 rule 9(4) deals with documents other than the originating process, as follows:
34.Since an application to wind up a company is made by petition, by virtue of rule 9(1), rule 1 applies to the service out of the jurisdiction of a winding-up petition. RHC Order 11 rule 1(2)(b) 35.Mr Yau argues that, if Order 11 rule 1 applies at all to winding-up petitions, the applicable part of rule 1 is sub-rule (2)(b). His bald submission is that s 327 is a “written law” by virtue of which the court has power to hear and determine the claim notwithstanding that the person against whom the claim is made, namely, the foreign company sought to be wound up, is not within the jurisdiction of the court. It follows, he says, that by virtue of Order 11 rule 1(2)(b) a winding-up petition may be served out of the jurisdiction on a foreign company without the leave of the court. 36.I am unable to accept this submission, which seems to me to be contrary to the authorities on the kind of enactment that falls within Order 11 rule 1(2)(b). 37.In In re Harrods (Buenos Aires) Ltd [1992] Ch 72[4], the petitioner, who was a minority shareholder in a company incorporated in England, complained of unfairly prejudicial conduct of the affairs of the company by the majority shareholder, who was a Swiss company, and sought an order that the majority shareholder purchase its shares in the company. At first instance Harman J held that the petition could be served on the majority shareholder in Switzerland without the leave of the court on the ground, inter alia, that Order 11 rule 1(2)(b) so permitted. The Court of Appeal unanimously reversed him on this point. Dillon LJ stated (at pp 115E-116E):
Stocker and Bingham LJJ both agreed with Dillon LJ on the construction of Order 11 rule 1(2)(b): see pp 118H-119A and 123D. 38.In Hong Kong, Barnett J arrived at a similar conclusion in Re S (A minor) (Wardship: Jurisdiction) [1992] 2 HKLR 39 at 42, though it appears that In re Harrods (Buenos Aires) Ltd was not cited to him. The case concerned an originating summons seeking relief under the wardship jurisdiction of the court conferred by s 26 of the Supreme Court Ordinance (Cap 4) and the Guardianship of Minors Ordinance (Cap 13), which the plaintiff purported to serve on her husband in the Philippines without the leave of the court. 39.S 26 of the Guardianship of Minors Ordinance provided:
40.S 26 of the Supreme Court Ordinance provided:
41.Rejecting the argument that the plaintiff’s claim fell within Order 11 rule 1(2)(b), Barnett J said:
42.This approach has been adopted in Re Giant Wizard Corporation (supra) at §§25-31, where Deputy Judge Mayo stated that
He then held that leave was necessary for the service out of the jurisdiction of a winding-up petition on a shareholder of the company to be wound up, having said at §28:
43.The last few words in the passage quoted above might suggest the judge took a different view in relation to service on the subject company itself. I do not think, however, that the learned judge there intended to decide that Order 11 rule 1(2)(b) rendered it unnecessary to obtain leave to serve a winding-up petition out of the jurisdiction on the company to be wound up itself. The question was not before him or relevant to his decision. 44.There is nothing in s 327 which specifically obviates the requirement of obtaining leave. There is nothing in s 327 which specifically deals with the question of service of the petition out of the jurisdiction (unlike, for example, rule 109 of the Matrimonial Causes Rules (Cap 179A)) or expressly deals with foreign companies. 45.It is true that in an appropriate case, s 327 empowers the court to wind up a company even though it is a foreign company without any presence within the jurisdiction. But it has to be borne in mind that s 327 was enacted to provide for the winding up of unregistered companies generally, not specifically foreign companies.[5] It was only settled by decisions of the courts, years after the equivalent provision was first enacted in England in the Companies Act 1862, that it applied to foreign companies: Re Commercial Bank of India (1868) LR 6 Eq 517; Re Matheson Bros Ltd (1884) 27 Ch D 225. The statute on its terms applies not only to companies incorporated overseas but to “any partnership, whether limited or not, any association and any company” with specified exceptions. Unregistered companies are not necessarily foreign entities. 46.Apart from s 327, the winding-up jurisdiction of the court is conferred by s 176 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, which provides:
This power however applies only to a “company” as defined in s 2, namely, a company formed and registered under the Companies Ordinance (Cap 622) or an existing company (as defined). 47.The main thrust of s 327 is to confer a winding-up jurisdiction on the court notwithstanding that the entity against which the order is sought is not a “company” as so defined, provided it falls within the definition of “unregistered company”, which includes certain partnerships, associations and companies. The section is, in my view, not specific legislation allowing the court to wind up a company “notwithstanding that the [company] is not within the jurisdiction”. 48.It seems to me a statutory provision that enables the court to wind up a wide assortment of entities, the description of which has been held to include foreign companies, is not a sufficiently specific enactment that qualifies as the kind of written law that removes the requirement of leave for service out of the jurisdiction by virtue of Order 11 rule 1(2)(b). 49.This leads me to the conclusion that Order 11 rule 1(1) applies. Problem in applying Order 11 rule 1(1) to winding-up petition 50.As noticed in a number of recent cases, however, the grounds for granting leave for service of a writ outside the jurisdiction under paragraphs (a) to (p) of Order 11 rule 1(1) are not apt to cover a winding-up petition. Where, for example, a creditor seeks to wind up a company based on an unpaid contractual debt, the petition cannot properly be described as a “claim … brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract” (rule 1(1)(d)): see Re Up Energy Group Ltd (unreported, HCCW185/2013, 25 Oct 2013). Likewise, a petition based on an unpaid judgment debt cannot properly be characterised as a “claim … brought to enforce any judgment or arbitral award” (rule 1(1)(m)): see Re Grand China Logistics Holding (Group) Co Ltd (HCCW 130/2013; 19 August 2013)at §3. This has led Harris J to observe in Re Up Energy Group Ltd at §5:
51.The problem has also been noted in Graeme Johnston,The Conflict of Laws in Hong Kong (2nd ed, 2012), where the learned author stated at §8-061:
52.In In re Paramount Airways Ltd [1993] Ch 223 at 241E, Sir Donald Nicholls VC (as he then was) discussed the relationship between Order 11 of the Rules of the Supreme Court and rule 12.12 of the (UK) Insolvency Rules[6] in the following terms:
53.A winding-up petition seeks to initiate a statutory process of bringing the operations of the company to a close and results in a class remedy in the form of the distribution of the assets of a company for the benefit of its creditors generally. The incongruity in trying to apply the various paragraphs in Order 11 rule 1(1) to a winding-up petition is hardly surprising given that the gateways in rule 1(1) are primarily intended for claims in personam whereas s 327 provides the court with a power to make a winding-up order and nothing else. No personal claims can be made in such a petition: Re Victorius Run Ltd [2010] 3 HKLRD 473 §§16-25 per Barma J (as he then was). 54.I should mention that in Re Gottinghen Trading Ltd [2012] 3 HKLRD 453 at §32, Harris J referred to Order 11 rule 1(1)(a) and (c) as possible bases for service of a winding-up petition out of the jurisdiction. However, his lordship was alluding to the special case of a contributory’s petition where a shareholder respondent is ordinarily resident or domiciled in the jurisdiction, with the subject foreign company being a necessary or proper party. This does not detract from the problem that exists generally, especially in the case of creditors’ petitions. The position prior to 1988 55.The problem referred to above did not exist before the amendment of Order 11 rule 9 in Hong Kong in the 1980s. Before that amendment, rule 9(1)-(4) provided:
56.When the rule was in that form, petitions to wind up foreign companies could be served outside the jurisdiction with leave given under rule 9(3) which dealt specifically with petitions and motions. In Dicey & Morris on The Conflict of Laws (10th ed, 1980), p 732 at footnote 54, it was stated, in the context of winding-up proceedings, that “petitions and orders may be served outside England under R.S.C., Ord. 11, r. 9(3) and (4)”. This suggests that petitions to wind up foreign companies used to be served out of the jurisdiction with leave granted by the court under Order 11 rule 9(3).[7] The discretion for giving leave under rule 9(3) appears to have been at large and not limited to the gateways under rule 1(1). 57.By the Rules of the Supreme Court (Amendment) Rules 1984, however, rule 9(1) was amended to its present form while rule 9(2) and (3) were deleted. The perhaps unintended result in Hong Kong was that, although rule 1(1) was clearly inapt for insolvency proceedings, it became applicable to service out of the jurisdiction of, inter alia, all petitions, including winding-up petitions. The position in England and Wales 58.The amendments in Hong Kong were modelled on the same amendments made to the Rules of the Supreme Court of England and Wales[8] (which became effective on 1 January 1987). However, the problem described above did not occur there because the Insolvency Rules (made under the Insolvency Act 1986) were also enacted, and came into effect on 29 December 1986. Rule 12.12 of the Insolvency Rules, as it was first enacted, provided:
59.By rule 12.12(1), Order 11 was expressly stated to be inapplicable to insolvency proceedings. By rule 12.12(3), the English court had a very wide discretion to grant leave for service out of the jurisdiction, more extensive than equivalent provisions in RSC Order 11 and without being limited by the gateways in RSC Order 11 rule 1(1): In re Busytoday Ltd [1992] 1 WLR 683, 690; In re Paramount Airways Ltd (supra) at 241D; Re Howard Holdings Inc [1996] BCC 549, 553E. There was therefore, in England and Wales, a seamless transition from Order 11 rule 9(3) of the Rules of the Supreme Court to rule 12.12 of the Insolvency Rules.[9] 60.Unfortunately, in Hong Kong, Order 11 rule 9 was amended following similar amendments in England, but no equivalent of rule 12.12 of the Insolvency Rules was enacted in the Companies (Winding-up) Rules or elsewhere. The proper approach 61.It is highly unsatisfactory that leave to serve a winding-up petition outside the jurisdiction should be required under a rule when none of the paragraphs under that rule is apt to apply to such a petition. In this state of affairs, there is in my view much to be said for Mr Johnston’s suggestion in The Conflict of Laws in Hong Kong (2nd ed, 2012) at §8-061 that the rules be amended. 62.Faced with the existing rules, however, I have considered the following possible solutions to this conundrum. First, straining the language of one or more of the paragraphs in Order 11 rule 1(1) to fit them to a winding-up petition. I consider this course entirely unattractive. The established principle is that for leave to be granted, a case must fall within the spirit as well as the letter of the Order: Mercedes-Benz AG v Leiduck [1996] AC 284. The language of rule 1(1) is plainly inapt for winding-up. There is a limit to how much it can be strained or stretched within the bounds of intellectual honesty. Harris J has already rejected rule 1(1)(d) and (m) as possible bases (see §50 above). One author has called it “absurd” to apply the paragraphs in rule 1(1) to a winding-up petition (see §51 above). 63.Secondly, I have not been able to find any authority to suggest that where leave is required, there is any inherent jurisdiction to grant leave to serve out other than under the paragraphs of Order 11 rule 1(1). On the contrary, there is authority that Order 11 forms an entire code such that any gaps in it cannot be filled by the court’s inherent powers: Union Bank of Finland v Lelakis [1997] 1 WLR 590, 593H. Nor, in my view, can the problem be solved by exercising the court’s inherent jurisdiction – if there be any – to dispense with service. As held by the Court of Appeal in Bank of China (Hong Kong) Ltd v Regal Link Investment Ltd [2009] 3 HKLRD 203 at §38, any power to dispense with service should not be used to circumvent the requirement for leave for service out of the jurisdiction. 64.Nor can substituted service be the answer. The Court of Appeal has held that allowing substituted service of a writ in Hong Kong on a foreign defendant has the same effect of granting leave to serve out of the jurisdiction. Such an order should therefore be refused unless it is demonstrated that the case falls clearly within one of the sub-paragraphs of Order 11 rule 1(1): Tillemont Shipping Corp SA v Taitexma Enterprise Corp [1993] 2 HKC 129, 132H-133B.[10] 65.In my opinion, the preferable, though far from ideal, route is to rely on the wording of rule 210 of the Companies (Winding-up) Rules itself. The rule incorporates the Rules of the High Court for the purposes of winding-up proceedings, but this is subject, inter alia, to the clause “unless the court otherwise in any special case directs”. While these words may not be wide enough to permit the court to re-write the rules[11], they in my view empower the court, faced with a petition to wind up an unregistered company which is a foreign company without a registered office or principal place of business in Hong Kong, to direct that the rules and procedure applicable shall be in accordance with RHC Order 11 with the exception that the words “if in the action begun by the writ …” in rule 1(1) together with all the paragraphs following those words under that sub-rule shall be treated as inapplicable. In other words, rule 1(1) as so adapted for the purpose of winding-up proceedings would provide:
66.Where this approach is taken, the adapted rule 1(1), as applied to petitions by rule 9(1), means that:
67.It is well established that the court’s jurisdiction to wind up a foreign company will not be exercised unless there is a sufficient connection between the company and Hong Kong. In particular, three core requirements have to be satisfied which are, in the words of the Court of Appeal in Re Yung Kee Holdings Ltd [2014] 2 HKLRD 313 at §38, as follows:
68.In my opinion, leave to serve a petition out of the jurisdiction should not be given unless the applicant demonstrates a good arguable case that these conditions are met in the particular case. The applicant must also demonstrate there is a serious issue to be tried on the merits, for example, as to the existence of the debt on which the petition is founded. The grant of leave, on an ex parte application as is usually the case, will not, of course, preclude the company or any other proper party from contesting jurisdiction subsequently. Such a threshold requirement at the leave stage is, in my view, appropriate in order to ensure that there are prima facie grounds for invoking what has been called an “exorbitant”[12] jurisdiction under s 327 before the petitioner is permitted to serve the process on the company out of the jurisdiction. Conclusion in the present case 69.On the basis of the facts set out above and the matters mentioned by Mr Yau at the hearing, I am satisfied that there may well be a good arguable case that the three core requirements can be met in this case. However, as is accepted by Mr Yau, the evidence does not cover all the requirements. I shall therefore simply adjourn the petitioner’s application for it to be revised as appropriate and then re-submitted to the master to be dealt with in the light of my judgment. The costs of the hearing before me shall be costs of the application to be dealt with by the master.
Mr Albert Yau, instructed by Lau, Chan & Ko, for the petitioner [1] As defined in s 332 of the previous Companies Ordinance (Cap 32) and in s 2 of the Companies Ordinance (Cap 622). [2] See s 338 of the previous Companies Ordinance (Cap 32) and in s 803 of the Companies Ordinance (Cap 622). [3] Order 73 rule 7 concerns service of documents out of the jurisdiction in proceedings under the Arbitration Ordinance (Cap 609) and is not relevant for present purposes. [4] The Court of Appeal’s decision, so far as it concerned forum non conveniens, was effectively overruled by the European Court of Justice in Owusu v Jackson [2005] QB 801, but this does not affect the point under discussion. [5] S. 327 was the Hong Kong equivalent of the provision, first enacted in the Companies Act 1862, regarding the winding-up of “unregistered companies”, a term introduced by the 1862 Act. The term covered the types of company which could previously be wound up under the Joint Stock Companies Winding-up Act 1848 and Joint Stock Companies Winding-up Amendment Act 1849 which extended to all companies, partnerships and associations of seven or more members, except railway companies: see French, Applications to Wind Up Companies (2nd ed), pp. 27-42. [6] Quoted in paragraph 58 below. [7] Leave to serve a petition out of England on an English registered company at a Scottish address was given in Re Baby Moon (UK) Ltd (1985) 1 BCC 99,298 though no rule was mentioned. [8] S.I. 1983/1181 [9] Rule 12.12 was repealed in 2010 by the Insolvency (Amendment) Rules 2010 and in its place rule 12A.20 was enacted which provides:
[10] There is a reference to substituted service having been effected on a foreign company in In re Compania Merabello San Nicholas SA [1973] 1 Ch 75 at 80E, but it is not clear from the report whether an order for substituted service had been made and the basis for it. In Banque des Marchands de Moscou (Koupetschesky) (in liquidation) v Kindersley [1950] 2 All ER 105, 110, Harman J held that substituted service by advertisement of a petition to wind up a dissolved Russian bank which had never had a place of business in England was valid. The case was however special in that the bank had been dissolved by decree of the Soviet regime in 1918 and no longer existed in its place of incorporation; the English winding-up order had been made in 1932. Harman J was concerned with a writ issued by the liquidator in 1949 against an alleged debtor of the bank. Further, it does not appear that the question of leave for service out was discussed. The decision of the Court of Appeal did not touch upon the question of service: [1951] 1 Ch 112. [11] Unlike rule 12A.20 of the Insolvency Rules of the UK which permits “such modifications as the court may direct” to be made to CPR Part 6 in its application to the service of court documents in insolvency proceedings. [12] Re Yung Kee Holdings Ltd (supra) at §41. | ||||||||||||||||||||||||||||
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