RE CHIK YIP FAI

RE CHIK YIP FAI

Where the petition as drafted permits the recipient to calculate when the bankruptcy notice expired, correcting an erroneous calendar date is a matter of form and amendment may be allowed even if sought after the three‑month period; conversely, where service was by post and the petition fails to state the deemed date of service so that the expiry cannot be calculated, the defect is substantive and an amendment outside the three‑month period cannot be permitted and the petition must be dismissed. If the three‑month period has not expired, leave to amend to state the deemed date of service should be given.

Citation
RE CHIK YIP FAI
Parties
Debtor: YAM SZE PUI; Debtor: YAN CHUNG KAI trading as KAI KEE PIECEGOODS; Debtor: NG YIN MAN, FARWINA; Debtor: YIP KIT WAH; Debtor: WONG MIN FOOK trading as YAU LEE (also known as YAU LEE COMPANY); Debtor: CHIK YIP FAI; Petitioning Creditor: THE CHINA AND SOUTH SEA BANK LIMITED; Petitioning Creditor: Caltex Oil Hong Kong Limited; Petitioning Creditor: LEE HO KEE trading as HANG LEE COMPANY; Official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 November 1985
Case Number
HCB634/1985
Procedural Posture
Bankruptcy Petitions for Receiving Orders / Applications to Amend Petitions; Hearing and Judgment
Outcome
Mixed: leave to amend granted in respect of petitions where the expiry could be calculated (Bkcy Nos. 413, and similarly 414, 415, 416) and in Bkcy No. 634 (because three‑month period had not expired); amendment refused and petition dismissed in Bkcy No. 448 (because deemed service by post meant expiry could not be...
Legal Topics
Amendment of Petitions, Bankruptcy Notice, Time of Service, Deemed Service by Post, Act of Bankruptcy, Order 10 RSC
Source Language
EN
Bankruptcy Civil Procedure Service of Process Rules of Court Amendment of Petitions Bankruptcy Notice Time of Service Deemed Service by Post +2 more

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Parties

YAM SZE PUI

Debtor

YAN CHUNG KAI trading as KAI KEE PIECEGOODS

Debtor

NG YIN MAN, FARWINA

Debtor

YIP KIT WAH

Debtor

WONG MIN FOOK trading as YAU LEE (also known as YAU LEE COMPANY)

Debtor

CHIK YIP FAI

Debtor

THE CHINA AND SOUTH SEA BANK LIMITED

Petitioning Creditor

Caltex Oil Hong Kong Limited

Petitioning Creditor

LEE HO KEE trading as HANG LEE COMPANY

Petitioning Creditor

Official Receiver

Official Receiver

Procedural Posture

Bankruptcy Petitions for Receiving Orders / Applications to Amend Petitions; Hearing and Judgment

Legal Issues

  1. 1 Whether an amendment correcting the expiry date of a bankruptcy notice outside the three‑month period is permissible
  2. 2 Whether an incorrect date in a petition is a defect of form or substance
  3. 3 When service by post results in a deemed date of service under Order 10 rule 3 RSC

Ratio Decidendi

Where the petition as drafted permits the recipient to calculate when the bankruptcy notice expired, correcting an erroneous calendar date is a matter of form and amendment may be allowed even if sought after the three‑month period; conversely, where service was by post and the petition fails to state the deemed date of service so that the expiry cannot be calculated, the defect is substantive and an amendment outside the three‑month period cannot be permitted and the petition must be dismissed. If the three‑month period has not expired, leave to amend to state the deemed date of service should be given.

Court Disposition

Mixed: leave to amend granted in respect of petitions where the expiry could be calculated (Bkcy Nos. 413, and similarly 414, 415, 416) and in Bkcy No. 634 (because three‑month period had not expired); amendment refused and petition dismissed in Bkcy No. 448 (because deemed service by post meant expiry could not be...

Orders

  • Leave granted to amend petition B413: delete 'July' and substitute 'June' in paragraph 4.
  • Similar leave granted to amend petitions B414, B415 and B416 where the expiry could be calculated.