RE YIP KIT WAH

RE YIP KIT WAH

Amendments correcting dates in bankruptcy petitions are permissible where the correct date of expiry can be calculated from the petition (defect is formal); where the petition as drafted does not permit calculation (for example where service was by post and the petition fails to state the deemed date), the petition is defective and, if the three-month period has expired, must be dismissed. Amendments are allowed where made within the three-month period to cure defects that enable calculation of the expiry date.

Citation
RE YIP KIT WAH
Parties
Petitioner/creditor: The China and South Sea Bank Limited; Debtor: Yam Sze Pui; Debtor: Yan Chung Kai trading as Kai Kee Piecegoods; Debtor: Ng Yin Man (Farwina); Debtor: Yip Kit Wah; Petitioner/creditor: Caltex Oil Hong Kong Limited; Debtor: Wong Min Fook trading as Yau Lee; Petitioner/creditor: Lee Ho Kee trading as Hang Lee Company; Debtor: Chik Yip Fai; Official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 November 1985
Case Number
HCB416/1985
Procedural Posture
Bankruptcy / Applications for Amendment of Bankruptcy Petitions (interlocutory)
Outcome
Mixed: leave to amend granted in B413 (and similarly in B414, B415, B416) and in B634; petition B448 dismissed.
Legal Topics
Amendment of Petitions, Service by Post, Bankruptcy Notice, Act of Bankruptcy, Computation of Time, Order 10 Rule 3
Source Language
EN
Bankruptcy Civil Procedure Court Rules Amendment of Petitions Service by Post Bankruptcy Notice Act of Bankruptcy Computation of Time +1 more

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Parties

The China and South Sea Bank Limited

Petitioner/creditor

Yam Sze Pui

Debtor

Yan Chung Kai trading as Kai Kee Piecegoods

Debtor

Ng Yin Man (Farwina)

Debtor

Yip Kit Wah

Debtor

Caltex Oil Hong Kong Limited

Petitioner/creditor

Wong Min Fook trading as Yau Lee

Debtor

Lee Ho Kee trading as Hang Lee Company

Petitioner/creditor

Chik Yip Fai

Debtor

Official Receiver

Official Receiver

Procedural Posture

Bankruptcy / Applications for Amendment of Bankruptcy Petitions (interlocutory)

Legal Issues

  1. 1 Whether an amendment correcting the date of expiry of a bankruptcy notice is permissible when made after the three-month act of bankruptcy period
  2. 2 Whether a defective notice that still permits calculation of the expiry date is a matter of form (amendable) or substance (fatal)
  3. 3 Effect of service by post and the deemed date of service under Order 10 rule 3 and its impact on when the notice period runs

Ratio Decidendi

Amendments correcting dates in bankruptcy petitions are permissible where the correct date of expiry can be calculated from the petition (defect is formal); where the petition as drafted does not permit calculation (for example where service was by post and the petition fails to state the deemed date), the petition is defective and, if the three-month period has expired, must be dismissed. Amendments are allowed where made within the three-month period to cure defects that enable calculation of the expiry date.

Court Disposition

Mixed: leave to amend granted in B413 (and similarly in B414, B415, B416) and in B634; petition B448 dismissed.

Orders

  • Leave granted to amend petition B413 to correct expiry date (delete 'July' substitute 'June'); no receiving order made and hearing adjourned
  • Similar leave granted in B414, B415 and B416 to correct calculable date errors