RE LEUNG SIU CHUNG HENRY

RE LEUNG SIU CHUNG HENRY

The debtors failed to prove any material variation of the Facilities Letter; the alleged conduct was not established and, in any event, clause 3.05 of the Guarantee covered the alleged indulgence/variation so the guarantors were not discharged; expert evidence proffered without leave was inadmissible; trust receipt and overdraft facilities are distinct and any defect in the trust receipt part would not discharge liability for the overdraft; accordingly bankruptcy orders were made against each debtor.

Citation
RE LEUNG SIU CHUNG HENRY
Parties
Petitioner: Coöperatieve Centrale Raiffeisen Boerenleenbank B.A., Hong Kong Branch trading as Rabobank, Hong Kong Branch; Debtor: Man Kwok Shing; Debtor: Leung Siu Chung Henry; Debtor: Kwan Pak Hin Henry; Official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 November 2002
Case Number
HCB10379/2002
Procedural Posture
Creditor's Bankruptcy Petitions (high Court of Hong Kong) / Judgment (bankruptcy Orders Made; Costs Order Nisi)
Outcome
Bankruptcy order made against each debtor; costs awarded to petitioner as order nisi; costs order nisi to become absolute unless contested within 14 days.
Legal Topics
Guarantee Discharge, Material Variation of Principal Contract, Trust Receipt, Admissibility of Expert Evidence, Protective Clauses in Guarantees, Statutory Demand
Source Language
EN
Bankruptcy Contract Suretyship Trusts Evidence Guarantee Discharge Material Variation of Principal Contract Trust Receipt +3 more

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Parties

Coöperatieve Centrale Raiffeisen Boerenleenbank B.A., Hong Kong Branch trading as Rabobank, Hong Kong Branch

Petitioner

Man Kwok Shing

Debtor

Leung Siu Chung Henry

Debtor

Kwan Pak Hin Henry

Debtor

Official Receiver

Official Receiver

Procedural Posture

Creditor's Bankruptcy Petitions (high Court of Hong Kong) / Judgment (bankruptcy Orders Made; Costs Order Nisi)

Legal Issues

  1. 1 Whether a material variation of the principal facilities letter occurred such that the guarantors are discharged
  2. 2 Whether the petitioner's conduct converted secured trust receipt advances into unsecured debt
  3. 3 Whether clause 3.05 of the Guarantee protects the bank from such variations

Ratio Decidendi

The debtors failed to prove any material variation of the Facilities Letter; the alleged conduct was not established and, in any event, clause 3.05 of the Guarantee covered the alleged indulgence/variation so the guarantors were not discharged; expert evidence proffered without leave was inadmissible; trust receipt and overdraft facilities are distinct and any defect in the trust receipt part would not discharge liability for the overdraft; accordingly bankruptcy orders were made against each debtor.

Court Disposition

Bankruptcy order made against each debtor; costs awarded to petitioner as order nisi; costs order nisi to become absolute unless contested within 14 days.

Orders

  • Bankruptcy order made against Man Kwok Shing (HCB10375/2002).
  • Bankruptcy order made against Leung Siu Chung Henry (HCB10379/2002).