Arab v Pan, in the matter of Pan (No 2) [2023] FCA 1190

Arab v Pan, in the matter of Pan (No 2) [2023] FCA 1190

The Court recognised the Hong Kong bankruptcy proceeding because it was a collective judicial proceeding in a foreign State under the Bankruptcy Ordinance, supervised by the Court of First Instance for the purpose of liquidation; the applicants had been appointed trustees and were foreign representatives; the application met the evidentiary and disclosure requirements in Arts 15 and 17 and s 13 of the Act; Hong Kong was inferred to be the respondent's habitual residence and therefore his centre of main interests; and no public policy reason under Art 6 was shown against recognition or consequential Art 21 relief.

Jurisdiction
Australia
Judgment Date
09 October 2023
Procedural Posture
Application for Recognition of a Foreign Bankruptcy Proceeding Under the Cross Border Insolvency Act 2008 (cth) and the Model Law on Cross Border Insolvency / Final Determination of Prayers for Recognition and Consequential Relief After Adjournment and Case Management Directions
Outcome
Application granted. The Hong Kong bankruptcy proceeding was recognised as a foreign proceeding and as a foreign main proceeding, and consequential relief was ordered.
Legal Topics
['recognition of Foreign Proceeding' 'recognition of Foreign Main Proceeding' 'foreign Representative' 'centre of Main Interests' 'article 21 Relief Under the Model Law' 'substituted Service and Bankruptcy Rules Compliance']
['bankruptcy and Insolvency' 'cross Border Insolvency'] ['recognition of Foreign Proceeding' 'recognition of Foreign Main Proceeding' 'foreign Representative' 'centre of Main Interests' 'article 21 Relief Under the Model Law' 'substituted Service and Bankruptcy Rules Compliance']

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Procedural Posture

Application for Recognition of a Foreign Bankruptcy Proceeding Under the Cross Border Insolvency Act 2008 (cth) and the Model Law on Cross Border Insolvency / Final Determination of Prayers for Recognition and Consequential Relief After Adjournment and Case Management Directions

Legal Issues

  1. 1 ['Whether Proceeding No. HCB 6548/2021 in the High Court of the Hong Kong Special Administrative Region Court of First Instance was a foreign proceeding within Art 2(a) of the Model Law.' 'Whether the Hong Kong bankruptcy proceeding was a foreign main proceeding within Art 2(b) of the Model Law.' 'Whether the applicants were foreign representatives within Art 2(d) of the Model Law.' 'Whether the application satisfied Arts 15 and 17 of the Model Law and s 13 of the Cross-Border Insolvency Act 2008 (Cth).' 'Whether consequential relief under Art 21 of the Model Law should be granted.' 'Whether late delivery of the affidavit of Wong Kwok Keung affirmed 8 August 2023 should be treated as sufficient compliance with r 14.03(4)(a) of the Federal Court (Bankruptcy) Rules 2016 (Cth).']

Ratio Decidendi

The Court recognised the Hong Kong bankruptcy proceeding because it was a collective judicial proceeding in a foreign State under the Bankruptcy Ordinance, supervised by the Court of First Instance for the purpose of liquidation; the applicants had been appointed trustees and were foreign representatives; the application met the evidentiary and disclosure requirements in Arts 15 and 17 and s 13 of the Act; Hong Kong was inferred to be the respondent's habitual residence and therefore his centre of main interests; and no public policy reason under Art 6 was shown against recognition or consequential Art 21 relief.

Court Disposition

Application granted. The Hong Kong bankruptcy proceeding was recognised as a foreign proceeding and as a foreign main proceeding, and consequential relief was ordered.

Orders

  • ['Pursuant to s 6 of the Cross-Border Insolvency Act 2008 (Cth) and Art 17(1) of the Model Law, Proceeding No. HCB 6548/2021 in the High Court of the Hong Kong Special Administrative Region Court of First Instance, in which the respondent was adjudged bankrupt on 8 July 2022, be recognised as a foreign proceeding...