Glossary of Terms - Hong Kong

Transcription

1 Glossary of Terms - Hong Kong Ad Valorem Fee Bankruptcy Ad Val, as it is known, was used to fund the operations of the Official Receiver's Office, but nowadays it goes into the general revenue. It has been described as a "tax on creditors" as the effect of Ad Val is to reduce the amount available to pay a dividend to creditors. The proceeds of realisation of assets of companies in voluntary liquidation must also be paid into Companies Liquidation Account every six months, but they do not attract Ad Val. This is one of the reasons why the CVL procedure is more beneficial for creditors than the compulsory liquidation procedure. Here is a summary of the sliding scale. The process of dealing with the financial affairs of an individual who is unable to pay their debts. In Hong Kong this description is limited to natural persons, whereas in some other jurisdictions bankruptcy is used to describe the corporate insolvency process. Bankruptcy Ordinance Primary legislation covering personal insolvency in Hong Kong. Last updated in 1998, but still has the penal approach which it adopted from the UK Bankruptcy Act of 1914 and 1926 and on which it is still closely modelled. It is more up to date than the Companies Ordinance, but in international terms it is already dated. Bankruptcy Rules Return of Capital Certificate of Solvency Commencement of Liquidation Committee Of Inspection ("CoI") Companies Liquidation Account Companies Ordinance Companies Winding - up Rules Compulsory Liquidation S.60 Conveyancing and Property Ordinance Creditors' Voluntary Liquidation - ("CVL") Debenture Dividend Subsidiary legislation (known as regulations) dealing with personal insolvency. This usually happens in a MVL (a solvent liquidation) when all the creditors and costs have been paid in full and there is sufficient to make a payment to the Company s shareholders. However, there have been a number of examples in recent years of a return of capital to shareholders in compulsory liquidations. A certificate signed by one or more directors of a solvent company confirming that the company is solvent and will be able to pay its debts in full within 12 months of the start of the liquidation. In a compulsory liquidation the winding - up is deemed to have commenced on the date that the petition is presented. In a CVL it is the date on which the shareholders pass the resolutions to wind - up. The commencement date is important for a number of reasons, including calculating the periods within which certain transactions can be unwound. The CoI is nominated at the meeting of creditors. It usually comprises between two and five creditors. Its role is to advise and assist the liquidators of the Company and to agree the liquidators' remuneration. For more details of the role of the CoI go to Briscoe Wong Ferrier and see their Committee of Inspection Guide. Effectively a bank account operated by the Official Receiver's Office into which all the proceeds of realisation of the assets of companies in compulsory liquidation must be paid. These realisations are subject to Ad Val duty which is chargedont a sliding scale. (See above for more details) The primary legislation governing corporate insolvency in Hong Kong. A very tired piece of legislation (closely modelled on the 1948 UK Companies Act), which is very much in need of updating. The updating process has just started, but is not expected to be come into force until 2017 or Secondary legislation governing corporate insolvency. See Companies Ordinance. A compulsory winding-up order is made by the High Court, most commonly on the petition of a creditor, but it can also be on the petition of a shareholder, the Official Receiver or the company itself. As a result of this order the Official Receiver automatically becomes the provisional liquidator of the Company (unless another provisional liquidator has been appointed prior to the winding-up order being made). This allows liquidators to overturn transactions where it can be shown that the purpose of the transaction was to defraud creditors. Because of the element of fraud, there is a high burden of proof, but the case of Tradepower Holdings has shown that this is not insurmountable as transactions are deemed to have been entered into with the intention to defraud creditors where they are for little or no consideration. A liquidation process initiated by the directors of the company. It starts with them deciding that the company is insolvent and cannot continue trading and that it should be wound - up. The directors then convene a meeting of shareholders (otherwise known as contributories), at which they pass a resolution to wind it up and a meeting of creditors at which a liquidator is appointed. Typically, this is a legal charge over all the fixed and floating assets of the Company. It will usually give the holder of the charge the power to appoint a Receiver and Manager in the event of default. The distribution of the proceeds of sale of the assets to creditors by the Insolvency Practitioner. This will be defined as a % of the dollar value of their claims, or as cents in i

2 the dollar. Fees and Percentages Order Fixed Charge Floating Charge Fraudulent Trading High Court Insolvency Part of the Companies Ordinance that deals with the fees that are charged by the Official Receiver's Office and the Court in various aspects of the liquidation process. Most commonly found when a company gives a fixed charge to its bankers as security for loans. A fixed charge will usually be secured on land and buildings. It usually contains the power to appoint a receiver. Floating charges are less common in Hong Kong. It is a charge over what are usually known as revolving assets, that is those such as stock, work - in - progress, debtors and plant and machinery, which the company is free to dispose of as it sees fit, without any interference from the chargeholder. In an insolvency, the proceeds of realisation of floating charge assets are firstly available to the preferential creditors and only once they have been paid, can the balance be paid to the floating charge holder. A floating charge will usually contain the power to appoint a receiver and manager. Virtually impossible to prove. No decided cases in Hong Kong. Necessary to establish the intention to defraud in the mind of the individual when the actions were committed. The Court in Hong Kong which has jurisdiction over all personal and corporate insolvency matters. Any appeal from a decision of the High Court (sometimes known as the Court of First Instance) is to the Court of Appeal and from there to the Court of Final appeal. Respectively, the Courts are often referred to as CFI, CA and CFA. Company matters, including matters relating to the winding - up of companies, are often dealt with by the Companies Judge. Not defined in the legislation, but usually considered to be either:- - being unable to pay debts as and when they become due - the cash flow test; or - not having sufficient assets to pay debts in full - the balance sheet test Insolvency Practitioner (IP) Insolvent Trading Individual Voluntary Arrangement ("IVA") IVA Nominee Liquidator Liquidator's Bond Labour Department Litigation Funding Members' Voluntary Liquidation - ("MVL") Misfeasance Usually an accountant who specialises in insolvency and corporate recovery assignments. Unlike in many other jurisdictions, the IP in Hong Kong does not need to have a specialist qualification to act as a liquidator or trustee. However, this area of work is becoming more and more complex with the result that most liquidations of any size are dealt with by experienced IP's. Similar to the wrongful trading provisions in the UK Insolvency Act of It allows personal liability for company debts to be imposed on directors who know their company is insolvent, that it is likely to go into liquidation and yet allow it to continue trading at the risk of its creditors. Insolvent Trading has not yet been enacted in Hong Kong and is only likely to be enacted at the same time as Provisional Supervision. A Court supervised alternative to bankruptcy where the debtor usually agrees to repay his creditors either in full over an extended period, or where the return for creditors is better than bankruptcy. It needs to be approved by creditors representing 75% or more in value of the creditors who are entitled to vote at and who attend the meeting of creditors. The IP who assists the debtor in setting up the IVA and who administers it after approval by creditors Appointed either by the Court or creditors. His role is to realise the Company's assets, distribute them among its creditors in line with their statutory priorities, investigate the causes of failure and report as appropriate to the Court and the Official Receiver. In a compulsory liquidation, the liquidator is requested to provide the Official Receiver with an insurance bond. In theory, its purpose is to safeguard the interest of creditors in the event that a liquidator absconds with Company assets. This has never happened in Hong Kong. The branch of government that deals with the rights of employees and which probably files more winding - up petitions (on behalf of employees who are unpaid by insolvent employers) than any other creditor in Hong Kong. This is usually referred to as the funding by a third party of litigation in connection with a company in liquidation. The third party may be a creditor or it may be someone who funds litigation in return for a share of the proceeds. Check this page for more details. Where a company is solvent, i.e. it has sufficient assets to meet its liabilities, it can be wound-up using the MVL process. The principal criteria, along with payment of all creditors, is that they must be paid within 12 months of the start of the liquidation. The section of the Companies Ordinance under which liquidators can bring claims against directors for breach of their fiduciary duties. Generally, this is where a director acts in his own interests or those of someone else as opposed to acting in the interests ii

3 of the Company. Such a breach can result in personal liability on the part of directors for losses incurred by the Company. Official Receiver Official Receiver's Scale Rates Panel A Panel T Pari-Passu Petitioner's Deposit Private Examination (s.221) Post - Liquidation Interest Proof of Debt Form Protection Of Wages On Insolvency Fund ("PWIF") A civil servant. The Official Receiver's Office is responsible for the administration of bankruptcies and compulsory liquidations in Hong Kong and acts as a de facto regulator of those professionals who are appointed in Court supervised insolvencies This is a scale of fess produced by the Official Receiver s Office. It has recently been updated for the first time since Whilst neither the Court or creditors are bound by this scale of charges it has become the benchmark for charge - out rates for liquidators in Hong Kong. An administrative scheme operated by the Official Receiver s Office. First established in 1996, its purpose is to ensure that if a liquidator is not nominated at the first meeting of creditors then the next firm from the Panel A can be put forward. Applies only to nonsummary liquidations, (ie those with assets in excess of HK$200,000). Admission to the Panel is based on various factors including numbers of staff and experience. However not being a member of the Panel does not prevent a person being appointed liquidator by the Court in a non - summary liquidation. Applies to summary liquidations, that is those with assets of less than HK$200,000. Membership of the Panel is based on a tender process which presently takes place every 2 years. Those firms which submit the lowest tenders appear to be accepted. Originally known as Panel B, but has become generally known as Panel T because of the tender process. The average tender for the two years starting April 2013 was HK$1,768. A Latin phrase used to describe how distributions are made to preferential and unsecured creditors in proportion to the size of their claims in the insolvency process. This is the amount (currently HK$12,150, plus Court fees of HK$1,045) paid to the Court when the petitioner presents a bankruptcy petition or a winding - up petition. If a debtor self - petitions, the deposit is HK$8,650 plus HK$1,045. An order for a private examination can be obtained pursuant to S.221 of the Companies Ordinance. An order is likely to be granted where the liquidator believes that a person or organisation has information or documents about the affairs of the company but when they are unwilling to cooperate with the liquidator. The examination takes place in Court and the person being examined is not allowed to refuse to answer any questions even if by doing so he might incriminate himself. If there is enough money to pay all the creditors of the company in liquidation and the costs and fees, then the creditors are entitled to be paid interest on their debts from the date of the winding - up order to the date on which they are paid. This is calculated at the judgment rate. The form by which a creditor registers its claim in a liquidation or bankruptcy. These are statutory forms in bankruptcies and compulsory liquidations. In IVA s and CVL s a similar form is used by most insolvency practitioners. When a Company fails, it is often the employees who are the first to suffer. The PWIF was set up to provide a measure of protection for employees by enabling this body to make payments to employees dismissed as a result of insolvency. The PWIF then stands in the shoes of the employees in respect of their claims against the company. In practice, it often takes several months for employees to be paid by the PWIF. It only applies to court supervised insolvencies. Payments to employees of a company going into Creditors' Voluntary Liquidation are still only made on an "ex gratia" basis. In practice if a company going into CVL has less than 20 employees then the PWIF make the appropriate payments. If it has more than 20 employees, the PWIF will not "kick - in" until a winding - up petition has been presented and a "Rena Gabriel" order has been made. The fund itself became insolvent a few years ago and had to be bailed out by the government!! Provisional Liquidator Take your choice. Unfortunately in Hong Kong there are a variety of provisional liquidators. It could be the Official Receiver who automatically becomes the provisional liquidator when a winding - up order is made against a company; or It could be a private sector insolvency practitioner appointed by the Official Receiver pursuant to s.194(1a) - what is known as a Panel T appointment; or It could be a private sector insolvency practitioner appointed by the Court under s.193; or He / she could be appointed by the directors through s.228a. For more details of provisional liquidators click here. iii

4 Provisional Supervision Provisional Supervisor Proxy Form Receiver Receiver and Manager Receivership Regulating Order Rena Gabriel Order Shareholders Stakeholders Statement of Affairs Statutory Demand Summary and Non - Summary Cases (Compulsory Liquidations) Section 228A Liquidation Subrogation A proposed corporate rescue procedure first formulated in Submitted to LegCo on two occasions, it has failed to progress on either occasion because of flaws in the way it is proposed that the claims of employees are treated. It is likely to come before LegCo again in 2015/16 as part of the update to the winding - up provisions of the Companies Ordinance. The insolvency practitioner who will be appointed under the soon to be introduced Provsional Supervision legislation. His role will be to take over control of the Company following his appointment, work together with management and other stakeholders to formulate a rescue plan, put that plan before the Company's creditors and, presuming that it is approved he will then be tasked with implementing the rescue plan. In any form of insolvency procedure a creditor is entitled to vote at a meeting of creditors. A creditor can attend and vote in person or can appoint a proxy to attend and vote on its behalf. Many creditors appoint the chairman of the meeting to be their proxy, not realising that at a CVL meeting of creditors the chairman will be one of the directors of the insolvent company. Can be appointed by the Court or by a lender who has a legal charge which gives the power to appoint a Receiver. The Receiver's powers are governed either by the Court order under which the appointment takes place or by the charge document under which he is appointed. The role of the Receiver is usually to recover money owed to the chargeholder, or in the case of a Court appointed Receiver it is usually to recover and protect assets which may be in jeopardy. Similar to a Receiver; but where the Receiver is given the power (under the document appointing the Receiver) to continue to operate and manage the business, often whilst seeking a buyer for it as a going-concern. This refers to the process where a creditor who has some form of security, often a fixed charge, appoints someone - a Receiver (usually, but not always an insolvency practitioner) - to realise his security on his behalf, sell it and pay him the proceeds. A Court order which allows a compulsory liquidation to be administered in a simplified fashion. It usually granted when a company in liquidation has a large number of creditors Named after the case of the same name. If a company goes into creditors voluntary liquidation and has more than 20 employees whose claims are unpaid, the employees can make claims to the Labour Department under the PWIF. However, the PWIF cannot make payments out to more than 20 employees if the Company is in voluntary liquidation. In these circumstances, the practice has developed of the Labour Department filing a winding-up petition against the Company. On the date of the hearing it is not opposed, but no winding-up order is made. A Rena Gabriel order is made which means that the petition remains on file until the voluntary liquidation has been completed and the Company dissolved. The Labour Department can then proceed to make payments to the employees under the PWIF process. Individuals or Companies who hold shares in the company. Also sometimes known as contributories. A bit of a vague phrase which can encompass creditors, shareholders, employees and could be extended to other third parties who may be affected by the insolvency. For example, in a construction insolvency, employers for whom the insolvent company is working and the eventual owner(s) of a building being constructed could all be thought of as stakeholders. This is a summary of the assets and liabilities of the company as at the date of the winding - up order (in a compulsory liquidation) or the meeting of creditors (in a CVL). Directors are under an obligation to provide a Statement of Affairs to the liquidator in a compulsory liquidation. A Statement of Affairs must be presented to the meeting of creditors in a CVL. Often referred to as a 21 day notice. The serving of the statutory demand can be the starting point for bankruptcy or winding-up proceedings. If the debt shown on the demand is not paid within 21 days of service, the creditor is then able to file a bankruptcy petition or a winding - up petition. A liquidation where the assets of the Company are worth less than HK$200,000. In contrast, a non-summary case is one where the assets are worth more than HK$200,000. A process, unique to Hong Kong, where the directors of a company can place it into liquidation without reference to its shareholders. This procedure has often been criticised and it is claimed has been subject to abuse - but no evidence has been put forward to support this allegation. The directors can only commence this type of liquidation where there are no other means of placing the company into liquidation. The right of subrogation arises when a person makes a payment of a debt owed by a iv

5 third party and then steps into that person's shoes. Taxation Fees Transactions at an Undervalue Trustee In Bankruptcy Unfair Preference Void Disposition Winding - Up Order Winding - up Petition These are fees payable to the Court whenever the fee note of a liquidator, provisional liquidator or one of their agents is taxed by the Court. The taxing fee is based on a scale rate. Where a bankrupt has disposed of or transferred an asset for less than its fair market value the trustee can go back up to 5 years to overturn the transaction. There is no similar statutory provision in relation to companies, but such provisions are likely to be introduced with the current proposed changes to the winding - up provisions of the Companies Ordinance. The Trustee is either the Official Receiver or a private sector insolvency practitioner whose role is to investigate the affairs of the bankrupt, realise the bankrupt's assets and distribute them to creditors in accordance with their priorities. A private sector Trustee is usually an accountant or a solicitor and is appointed by the Court. An unfair preference happens when a company enters into a transaction that puts one or more of its creditors in a better position than they would otherwise have been in the event of the company going into liquidation. Examples include giving security to a creditor who previous had no secruity or paying off one creditor whilst not paying others. A liquidator can go back 6 months to review such transactions and up to two years if the party that benefited from the transaction was connected (was an associate) with the Company. See here for a more detailed discussion of the subject and here for an explanation as to why it is so difficult to successfully pursue an unfair preference claim. Void dispositions are defined in S.182 of the Companies Ordinance. They are payments made by a Company (or possibly on its behalf) after the date of the presentation of the winding-up petition. All such payments are void, but can be validated by the Court by what is known as a validation order. However, a validation order will only be made in exceptional circumstances and rarely when the Company is insolvent. This is the order made by the Court following the hearing of the winding - up petition. This is filed with the Court by a creditor. If a winding-up order is eventually made, then the start of the winding - up proceedings dates back to the date on which the petition is presented to the Court. v