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Re Chow Cho Poon (Private) Limited

Re Chow Cho Poon (Private) Limited

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Case Copied 15 April 2011 42 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Chow Cho Poon (Private) Limited [2011] NSWSC 300
Hearing dates: 4 April 2011
Decision date: 15 April 2011
Jurisdiction: Equity Division
Before: Barrett J
Decision:
1. Declare that this Court recognises the appointment of the second plaintiff as the liquidator for the time being of Chow Cho Poon (Private) Limited (In Compulsory Liquidation) ("Company"), pursuant to orders of the High Court of the Republic of Singapore made on 22 November 2007 in case number CWU57/2007/A pursuant to Part X, Division 2 of the Companies Act (Cap. 50).
2. Declare that this Court recognises the orders of the High Court of the Republic of Singapore made on 28 February 2008 in case number CSU57/2007/A.
3. Declare that the second plaintiff, in his capacity as liquidator of the Company, is authorised to open, close, redesignate and operate (such operation to include, without limitation, withdrawal and deposit of funds) the Company's bank accounts in Australia, being account numbers 032003- XXXXX X and 032102-YYYYYY with Westpac Banking Corporation ("the Bank Accounts").
4. Declare that the second plaintiff is authorised to do anything in connection with the Bank Accounts which he is entitled to do under the law of Singapore in his capacity as liquidator of the Company.

Catchwords: CORPORATIONS - foreign corporations - application by foreign company and its liquidator appointed by foreign court for declarations recognising foreign winding up and its effects - reliance on Corporations Act provision requiring this court to "act in aid of, and be auxiliary to" foreign court in "external administration matter" - potential operation of provision of UNCITRAL Model Law on Cross Border Insolvency (as enacted in Australia) requiring that court "cooperate to the maximum extent possible" with foreign court - statutory provision making the relevant Corporations Act provision of no effect if inconsistent with enacted Model Law - where foreign winding up was ordered on the just and equitable ground - whether "foreign proceeding" under enacted Model Law - whether inconsistency - held none in the particular case - availability of declaratory relief where no defendant and no contradictor - particular circumstances warrant such relief where statutory foundation exists - observations on capacity of court's inherent jurisdiction to support such relief
Legislation Cited: Bankruptcy Act 1869 (UK)
Bankruptcy Act 1883 (UK)
Bankruptcy Act 1914 (UK)
Bankruptcy Act 1966 (Cth)
Companies Act (Cap 50) (Singapore)
Corporations Act 2001 (Cth)
Corporations Regulations 2001 (Cth)
Cross-Border Insolvency Act 2008 (Cth)
Cross-Border Insolvency Regulations 2006 (UK)
Insolvency Act 1986 (UK)
Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade
US Bankruptcy Code
Cases Cited: Al-Sabah v Grupo Torras SA [2005] UKPC 1; [2005] 2 AC 333
Ayres v Evans (1981) 39 ALR 129
Byrne v Herbert [1966] 2 QB 121
Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 262; [2007] 1 AC 508
Epic Energy (WA) Nominees Pty Ltd v Michael [2003] WASC 156; (2003)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 300
Decision Date: 15 April 2011

CaseChat Overview and Summary

The case of Re Chow Cho Poon (Private) Limited involved a foreign corporation, Chow Cho Poon (Private) Limited, which had been wound up in its country of origin. The liquidator appointed by the foreign court applied to the Australian court for declarations recognising the foreign winding up and its effects. The primary issue before the court was whether the Australian court could provide the requested declarations, considering the provisions of the Corporations Act and the UNCITRAL Model Law on Cross-Border Insolvency, and whether there was any inconsistency between the two sets of provisions. The court had to determine if the foreign winding up constituted a "foreign proceeding" under the Model Law, and if there was any inconsistency between the Corporations Act and the Model Law in this context.

The court found that there was no inconsistency between the Corporations Act and the Model Law as enacted in Australia. The Corporations Act required the Australian court to act in aid of and be auxiliary to the foreign court in external administration matters, while the Model Law required the court to cooperate to the maximum extent possible with the foreign court. However, the Model Law provided that the Corporations Act provision would be of no effect if inconsistent with the Model Law. The court held that in this case, there was no inconsistency because the winding up was ordered on the just and equitable ground, and therefore, the foreign winding up was a "foreign proceeding" under the Model Law. The court also considered the capacity of its inherent jurisdiction to support the relief requested, given the particular circumstances of the case and the existence of a statutory foundation.

As there was no defendant and no contradictor in the application, the court granted the declarations recognising the foreign winding up and its effects. The court held that the particular circumstances warranted such relief, particularly because the statutory foundation existed. The court observed that its inherent jurisdiction could support the relief in cases where the statutory provisions did not provide an adequate basis for the relief requested. The court concluded that there was no inconsistency between the Corporations Act and the Model Law, and therefore, the Australian court could provide the requested declarations in recognition of the foreign winding up and its effects.

Orders