19 September 2016
The Honourable Mr Justice Harris, the incumbent Companies Judge, has continued the recent development of cross-border assistance in insolvency matters. An example is his Lordship's decision in Re Centaur Litigation SPC (In Liquidation) (HCMP 3389/2015, 10 March 2016), which relates to an application by the liquidators of three companies incorporated and being wound up in the Cayman Islands. Appended to that decision were the terms of the order made by his Lordship for recognition of and assistance to the foreign liquidators. That order has since been regarded by practitioners as the standard form in subsequent applications.
In a recent decision concerning an Australian company in liquidation there called Rennie Produce (Aust) Pty Ltd (HCMP 1640/2016, 26 August 2016), the learned Judge confirmed his intention that the order made in Centaur should become "the standard order", although "practitioners should not feel bound to use precisely the same language if they consider that amendments to it are appropriate". This accords with our experience in a recognition application granted before the decision in Rennie Produce was made publicly available.
The reason for publishing the new decision is explicitly noted in paragraph 5:
"I will also make orders for the production of documents by the two banks concerned. Also for the benefit of practitioners there is, appended to this short decision, the substantive terms of the production orders that have been made in order that they can see the type of order that the court is willing to make pursuant to a letter of request for assistance by way of production by the court of a jurisdiction whose own insolvency regime contains provisions substantially similar to our section 221 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32)."
Whilst the order in Centaur already covers the foreign liquidator's potential applications "for orders for disclosure, the production of documents and/or examination of third parties" (paragraph 2.4), the order in Rennie Produce is more comprehensive and specific. However much foreign liquidators would hope that they need not always obtain orders for recognition and assistance in requesting documents and information from persons and entities in Hong Kong, there will no doubt be occasions where an order in the Rennie Produce form can facilitate their work.