RE LEUNG KWAN TSAN KELVIN, A BANKRUPT

RE LEUNG KWAN TSAN KELVIN, A BANKRUPT

The Applicant pursued an unreasonable and unmeritorious constitutional challenge and challenged the binding effect of Re Ng Shiu Fan; absence of malicious intent or reliance on legal advice does not excuse such conduct, and accordingly the costs order nisi should not be varied with costs to follow against the...

Source-derived case information.

Citation
[2019] HKCFI 997
Parties
Applicant (bankrupt): LEUNG KWAN TSAN KELVIN; Respondent (trustee of the Property): FRED LEE; Interested Party: OFFICIAL RECEIVER
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 April 2019
Case Number
HCB11341/2002
Procedural Posture
Bankruptcy Proceedings (no 11341 of 2002) / Hearing in Chambers (directions and Costs)
Outcome
Court refused to vary the costs order nisi and concluded that the Applicant must bear adverse costs resulting from pursuing unmeritorious constitutional and precedent-challenging grounds; the Official Receiver should not bear those adverse costs.
Legal Topics
Constitutionality Challenge to Statute, Costs Orders and Costs Nisi, Binding Effect of Court of Appeal Decisions, Directions to Director of Legal Aid, Role and Protection of Official Receiver
Source Language
en
Bankruptcy Constitutional Law Civil Procedure Costs Constitutionality Challenge to Statute Costs Orders and Costs Nisi Binding Effect of Court of Appeal Decisions Directions to Director of Legal Aid +1 more

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Summary, issues, holding and outcome

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Parties

LEUNG KWAN TSAN KELVIN

Applicant (bankrupt)

FRED LEE

Respondent (trustee of the Property)

OFFICIAL RECEIVER

Interested Party

Procedural Posture

Bankruptcy Proceedings (no 11341 of 2002) / Hearing in Chambers (directions and Costs)

Legal Issues

  1. 1 Whether the Applicant's constitutional challenge was unmeritorious and unreasonable to pursue
  2. 2 Whether this Court is bound by the Court of Appeal decision in Re Ng Shiu Fan
  3. 3 Whether costs should be ordered against the Applicant and whether the Official Receiver should bear adverse costs

Ratio Decidendi

The Applicant pursued an unreasonable and unmeritorious constitutional challenge and challenged the binding effect of Re Ng Shiu Fan; absence of malicious intent or reliance on legal advice does not excuse such conduct, and accordingly the costs order nisi should not be varied with costs to follow against the Applicant and the Official Receiver should not bear adverse costs consequences resulting from the Applicant's conduct.

Court Disposition

Court refused to vary the costs order nisi and concluded that the Applicant must bear adverse costs resulting from pursuing unmeritorious constitutional and precedent-challenging grounds; the Official Receiver should not bear those adverse costs.

Orders

  • Costs to be awarded against the Applicant in respect of the proceedings relating to the constitutional challenge and challenges to Re Ng Shiu Fan
  • The Official Receiver is not to bear adverse costs consequences arising from the Applicant's unreasonable conduct