Re: FU HAY KIN v. Ex Parte: FU LO LAI LIN

Re: FU HAY KIN v. Ex Parte: FU LO LAI LIN

Because the underlying order fell within s4(1) and s12(1) required leave to enforce arrears older than twelve months and no leave had been obtained, the judgment sum was not immediately due and payable; therefore the bankruptcy notice was invalid and the bankruptcy proceedings had to be set aside.

Citation
Re: FU HAY KIN v. Ex Parte: FU LO LAI LIN
Parties
Judgment Debtor: Fu Hay Kin; Judgment Creditor / Petitioner: Fu Lo Lai Lin
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 May 1995
Case Number
HCB279/1994
Procedural Posture
Bankruptcy / Application to Set Aside Bankruptcy Proceedings (interlocutory)
Outcome
Bankruptcy proceedings set aside
Legal Topics
Enforcement of Matrimonial Orders, Leave to Enforce Arrears, Validity of Bankruptcy Notice, Stay Pending Appeal
Source Language
EN
Bankruptcy Family Law Civil Procedure Enforcement of Matrimonial Orders Leave to Enforce Arrears Validity of Bankruptcy Notice Stay Pending Appeal

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Parties

Fu Hay Kin

Judgment Debtor

Fu Lo Lai Lin

Judgment Creditor / Petitioner

Procedural Posture

Bankruptcy / Application to Set Aside Bankruptcy Proceedings (interlocutory)

Legal Issues

  1. 1 Whether the bankruptcy notice was invalid because the underlying order was made under s4(1) of the Matrimonial Proceedings and Property Ordinance and enforcement required leave under s12(1)
  2. 2 Whether arrears more than 12 months old were immediately due and payable absent leave
  3. 3 Whether the court had any discretion to refuse to set aside invalid bankruptcy proceedings

Ratio Decidendi

Because the underlying order fell within s4(1) and s12(1) required leave to enforce arrears older than twelve months and no leave had been obtained, the judgment sum was not immediately due and payable; therefore the bankruptcy notice was invalid and the bankruptcy proceedings had to be set aside.

Court Disposition

Bankruptcy proceedings set aside

Orders

  • Bankruptcy proceedings set aside
  • Request to stay the application pending the Court of Appeal refused