International Construction Law Review
HONG KONG : SUBCONTRACTOR INSOLVENCY—ISSUES FOR MAIN CONTRACTORS IN HONG KONG
DAVID BATESON AND KIM BARTON
Mallesons Stephen Jaques, Hong Kong
Due to the current recession in Hong Kong, the construction industry is still plagued with subcontractors in precarious financial positions. Insolvency of a subcontractor can create enormous difficulties for main contractors, whose priority remains to complete the project within the designated time frame, in the most efficient manner possible. Issues of foremost importance for a main contractor include ensuring that a project can continue with as little disruption as possible and recovering any funds due from the subcontractor. The purpose of this report is to briefly sketch out some of the steps that can be taken to protect a main contractor from the ramifications of subcontractor insolvency at the contractual stage, and to highlight the rules in relation to the issue of set-off, which is one of the more frequent issues to arise following subcontractor involvency. As most subcontractors in Hong Kong are corporate entities rather than natural persons—at least in so far as subcontracts for significant works are concerned—this article focuses on corporate insolvency issues rather than those arising from bankruptcy of individuals.
As most main contractors will be aware, once a subcontractor goes into liquidation, the liquidator commences a process of collecting all of the assets of the subcontractor (which can include seizing equipment from a construction site), selling whatever assets the subcontractor has and then distributing the proceeds to creditors. If any assets are caught by a security—such as a fixed charge—those assets sit outside the funds available for distribution to creditors and are applied first to satisfy the moneys due to the secured creditor and any residual is then passed back to the hands of the liquidator.
Once the costs and expenses of winding-up have been paid,1
the proceeds of assets which are not caught by any security are then distributed pari passu
amongst classes of creditors under section 250 of the Companies Ordinance
Pt 4]
Correspondents’ Reports—Hong Kong
541