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Representation: Counsel:
Mr M A Karam / Ms E L Phelan (Plaintiff)
Mr W R Chan (Interested Parties)
Solicitors:
Pinsent Masons (Plaintiff)
Pancific Legal (Interested Parties)

File Number(s): 2026/302959

JUDGMENT

Nature of the application

1. By Originating Process filed on 22 July 2026, Mr Wong and Ms Tsui, as joint and several provisional liquidators of Million Up Ltd ("Company"), a company incorporated in Hong Kong, seek orders for the recognition of the Hong Kong liquidation as foreign main proceedings for the purposes of the Cross-Border Insolvency Act 2008 (Cth) ("CBIA") and, consequentially, recognition of Mr Wong and Ms Tsui as the foreign representatives of the Hong Kong liquidation proceedings for the purposes of the Model Law. By an Interlocutory Process filed on 8 September 2026 they seek further orders, which can be made if the primary orders they seek are made, entrusting the administration, realisation and distribution of the Company's assets to them and conferring upon them the powers available to a liquidator of a corporation appointed under the Corporations Act 2001 (Cth) (“Corporations Act”). Two interested parties appear in the application but do not oppose the application on the basis that an additional order will be made by consent which provides for Mr Wong and Ms Tsui to give notice of any distribution of the Company's assets.

2. Before turning to the affidavit evidence, the applicable statutory provisions and the submissions, I should note one matter. I have referred above to Mr Wong and Ms Tsui as the provisional liquidators of the Company appointed in the Hong Kong liquidation. As emerges from the evidence, that concept differs, at least in part, from the Australian concept of a provisional liquidator where Mr Wong and Ms Tsui here hold office following a winding up order made in Hong Kong and would, therefore, be treated as liquidators and not provisional liquidators in Australia. They are treated as provisional liquidators for the purpose of Hong Kong law because Hong Kong law has an additional stage, presently the subject of proceedings in Hong Kong, as to the identity of the liquidators which are appointed and it is possible that, as a result of that additional stage, other liquidators might ultimately be appointed to the Company in Hong Kong in place of Mr Wong and Ms Tsui. Nothing turns on that matter for present purposes where the definition of "foreign representative" in article 2(d) of the Model Law includes a person appointed on an interim basis who is authorised in a foreign proceeding to administer the liquidation of the Company's assets or affairs.

Affidavit evidence

3. Turning now to the affidavit evidence, Mr Wong and Ms Tsui rely on Mr Wong’s affidavit dated 22 July 2026. Mr Wong notes that the Company is incorporated in Hong Kong and its registered office is situated in Hong Kong and that, to the best of his knowledge and belief, the Company had always conducted its affairs from Hong Kong and that its sole director and shareholder at the time of the winding up order was a Hong Kong resident. As I will note below, the fact that the Company's registered office is situated in Hong Kong gives rise to a presumption that the Hong Kong proceedings are foreign main proceedings for the purposes of the Model Law. Mr Wong also notes that the Company's books and records are in Hong Kong and are currently in the possession and custody of the joint provisional liquidators in Hong Kong, to the extent that they have been obtained.

4. Mr Wong outlines the circumstances in which the joint provisional liquidators were appointed in the winding up proceedings in Hong Kong. He also refers to the commencement of Australian proceedings, prior to the winding up order being made in Hong Kong which were brought by the Company against two defendants in the Commercial List in this Court. It appears those proceedings relate to the circumstances of the sale of an interest in an Australian joint venture to a third party, Vestpro International Ltd, and this application is brought, in substantial part, so as to ensure that Mr Wong and Ms Tsiu have the capacity to control and conduct the Australian proceedings on the Company's behalf. Mr Wong also outlines the matters which are in issue in the Australian proceedings, although, little turns upon that proposition for the purposes of this application. Mr Wong notes that the Company's only presently identified assets in Australia are its claims against the defendants in the Australian proceedings; funds paid by the Company pursuant to security for costs orders made in those proceedings, which are presently held by the Court; and a substantial interest in the joint venture, which is the subject of the Australian proceedings. Those assets are, nonetheless, significant so far as the need for a provisional liquidator to control them on the Company's behalf is concerned. Mr Wong outlines the steps which have been taken in connection with the Australian proceedings and the status of the winding up proceedings in Hong Kong where, as I noted above, the question of whether Mr Wong and Ms Tsui should remain in office or ought be replaced by other liquidators remains to be resolved.

5. Mr Wong also confirms that, to the best of his knowledge and belief, the Hong Kong winding up proceedings are the only insolvency proceedings on foot in respect of the Company in any jurisdiction and there are no proceedings under the Bankruptcy Act 1966 (Cth) or the Corporations Act currently on foot in respect of the Company in Australia. That position is updated with evidence to the same effect in a subsequent affidavit. That evidence is directed to complying with the requirement for the identification of other relevant proceedings contained in s 13 of the CBIA.

6. By his second affidavit dated 4 September 2026, Mr Wong updates the position in respect of proceedings in Hong Kong as to the identity of the liquidators ultimately to be appointed to the Company, to which I referred above, and confirms the basis of this application in order to preserve the position of the Company in respect of the Australian proceedings.

7. Mr Wong and Ms Tsui also read an affidavit dated 1 September 2026 of their solicitor, Ms Griffiths, who refers to service of the proceedings upon the defendants in the Australian proceedings, who do not appear in this application. By a second affidavit dated 8 September 2026, Ms Griffiths refers, again likely for the purpose of s 13 of the CBIA, to updating information from Mr Wong that confirms that, to the best of his knowledge and belief, there has been no appointment of a receiver, controller or managing controller of the Company.

Submissions and determination

8. Mr Karam, with whom Ms Phelan appears for Mr Wong and Ms Tsui, addresses the factual background to this application including the winding up orders made in Hong Kong and the position in respect of the Australian proceedings. He notes that this application is brought under the CBIA and the Model Law for the recognition of the Hong Kong proceedings as foreign main proceedings and for the recognition of Mr Wong and Ms Tsui as foreign representatives for the purposes of the Model Law. Mr Karam points to the matters which I noted in respect of Mr Wong's evidence above that demonstrate that the Company's registered office and, indeed, its business were conducted in Hong Kong, which support the recognition of the proceedings as foreign main proceedings in Australia; and he also points to the Company's ownership of an interest in the joint venture which is the subject of the Australian proceedings and to the issues in the Australian proceedings in respect of the sale of an interest in that joint venture.

9. Mr Karam, in turn, refers to s 6 of the CBIA which provides for the Model Law to have the force of law in Australia and to the purposes of the Model Law as recognised in the preamble to the Model Law. Article 15 of the Model Law permits a foreign representative to apply to the Court for recognition of the foreign proceeding in which the foreign representative has been appointed. Section 13 of the CBIA and arts 15(2) and (3) of the Model Law set out certain matters to accompany such an application. Article 17(1) of the Model Law provides that a foreign proceeding must be recognised if specified requirements are met. These requirements include that, under art 17(1)(a) of the Model Law, the Hong Kong liquidation is a “foreign proceeding” within the meaning of art 2(a) of the Model Law, namely “a collective judicial or administrative proceeding in a foreign State … pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervisions by a foreign court, for the purposes of reorganization or liquidation”. The concept of “foreign main proceedings” pursuant to art 17(2)(a) of the Model Law is in turn defined in art 2(b) as a foreign proceeding taking place in the state where the debtor has its centre of main interests (“COMI”). Article 16(3) provides that, absent proof to the contrary, the Company’s COMI is presumed to be in the state in which its registered office is situated. The effect of recognition is set out in art 20 of the Model Law and art 21 provides for the relief that may be granted on recognition. The Court may make orders under art 21(1)(e) that the administration and realisation of the Company’s assets located in Australia be entrusted to Mr Wong and Ms Tsui as foreign representatives and under art 21(1)(g), investing them with the powers available to liquidators under the provisions of the Corporations Act.

10. In Chua Re Aoiji Enrolment Centre of International Education Ltd [2022] FCA 1518 at [20] (“Chua”), Markovic J noted that these provisions set both procedural and status based criteria that are relevant in an application of this character. Mr Karam also referred to my summary of the principles, largely to similar effect, in Re Man AHL Gold (AUD) Ltd (in liq) [2025] NSWSC 71 at [5]–[9].

11. Adopting the approach taken by Markovic J in Chua and by Mr Karam in submissions, I first have regard to the procedural criteria for this application under art 15 of the Model Law and s 13 of the CBIA. Those criteria are satisfied where Mr Wong and Ms Tsui have here tendered the winding up order and notice of appointment in respect of the Hong Kong winding up and deposed, both in Mr Wong's first affidavit and in Ms Griffith's further affidavit, to the fact that the Hong Kong proceedings are the only insolvency proceedings known to them. Turning now to the status criteria arising under the relevant provisions, I accept that the Hong Kong proceedings are plainly a "foreign proceeding" within the meaning of that term in art 2(a) of the Model Law where a liquidation and winding up is a collective judicial proceeding in the Hong Kong Court for the purpose of subjecting the Company's assets to supervision in that Court and Mr Wong and Ms Tsui have been appointed in respect of those proceedings. As Mr Karam points out, winding up proceedings under relevant Hong Kong law have previously been recognised in Australia as a "foreign proceeding" in this sense, including in Chua at [25]. Where the status based criteria as to the existence of the foreign proceeding and the status of the provisional liquidators as foreign representatives are satisfied, then the Hong Kong winding up proceedings should be recognised unless its recognition would be manifestly contrary to public policy. There is no suggestion that that is the case here.

12. Mr Karam also points out that, under art 17(2) of the Model Law, the foreign proceeding would be recognised as a foreign main proceeding if it is taking place in the state where the Company has its COMI. As I noted above, absent proof to the contrary, the fact that the Company's registered office is in Hong Kong gives rise to a presumption that Hong Kong is the Company's COMI, and nothing has emerged in this application to suggest to the contrary of that presumption. For completeness, as I have noted above, the fact that Mr Wong and Ms Tsui may subsequently be replaced by another liquidator in the ongoing proceedings in Hong Kong does not prevent their recognition as a foreign representative where that concept is defined in art 2 as including a person appointed on an interim basis. As Mr Karam rightly points out, the Model Law would require that they give notice to the Court in Australia if events in Hong Kong subsequently affect their status and that may or may not require a subsequent modification of the orders made by this Court.

13. By their Interlocutory Process, to which I referred above, Mr Wong and Ms Tsui seek further orders entrusting the administration, realisation and distribution of the Company’s assets in Australia to them and conferring upon them the relevant powers of a liquidator under the Corporations Act. Orders of this kind may be made consequential upon the recognition of the Hong Kong proceedings as foreign main proceedings and orders of this kind were relevantly made, for example, in Chua at [32]ff. It seems to me that those orders are properly made here where they will promote Mr Wong’s and Ms Tsui's ability to control and conduct the Australian proceedings.

Orders

14. For these reasons, I am satisfied that the orders sought by Mr Wong and Ms Tsui should be made. As I have noted above, it is common ground between the parties that the Court should also make two further consent orders which provide a notification regime for the benefit of the interested parties extending to any sale, encumbrance or disposal of the Australian assets, including any discontinuance or compromise of the Australian proceedings.

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