13 January 2012
Did you know...that in urgent circumstances, the court may treat the presentation of a winding-up petition to the judge hearing the application for the appointment of provisional liquidators as being sufficient without the petition in fact having been presented at the office of the court registrar.
In the recent decision of Re MF Global HK Ltd, the Honourable Mr. Justice Harris confirmed that the court has an overriding power to tailor court rules so as to address the particular needs of any given case. Accordingly, his lordship was prepared to accept the presentation of a petition (presumably as part and parcel of the application papers) before him, which had not yet been filed with the court, as being adequate compliance with section 193(1) of the Companies Ordinance. Practitioners will be aware that an application for the appointment of provisional liquidators is usually made after a winding-up petition has been presented to the court registrar.
The court in Re MF Global HK Ltd formed the view that no substantial injustice would be caused by its acceptance of the petition and proceeded on the basis of an undertaking by the applicants (the board of directors of the company itself) to file the petition as soon as the court registry was open for business. As the application was made by the company itself, the judgment given by the court does not discuss pre-petition matters such as any statutory demands made against the company.
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