In Re Hin-Pro International Logistics Ltd the Hong Kong Court of Appeal had to consider whether it had jurisdiction to grant leave to amend a creditor's petition, and if so, whether it should do so.
In the first instance, the Court had allowed the creditor's winding-up petition to include debts that had accrued after the petition's presentation. On appeal, the Court of Appeal considered the continued applicability of the rule in Eshelby v Federated European Bank Ltd. The Eshelby rule provides that "…without the consent of the parties, the Court [cannot] amend a writ as completely to change the cause of action so as to bring in a cause of action that was not existent at the time the writ was originally used".
The Court of Appeal dismissed the appeal and held that post-petition debts can be introduced in a winding-up petition, the only question being whether the court should introduce such debts. The Court of Appeal highlighted that "the rule in Eshelby is a rule of practice rather than a rule of law. It can be departed from whenever the justice of the case requires".
In New Zealand, leave is also required to amend a statement of claim to put a company into liquidation and leave has previously been refused when the application to correct the amount claimed was made at a late stage (see Rudd Watts & Stone v Rustauk Forty Ltd (1992) 6 PRNZ 650).
See Court decision here.