RE TAM MEI KAM

RE TAM MEI KAM

The court held that an IPO under s43E can claim accrued maintenance and income to which the bankrupt is entitled during bankruptcy even if entitlement arose before the IPO or bankruptcy, provided the income has not been paid out or the bankrupt is not discharged; the trustees' IPO was not struck out and was allowed to claim the bulk of maintenance subject to a deduction for the bankrupt's assessed reasonable domestic needs; the trustees were not removed for misconduct.

Citation
RE TAM MEI KAM
Parties
Applicant / Bankrupt: Tam Mei Kam; 1st Respondent / Executor and Trustee: HSBC International Trustee Limited; 2nd Respondent: Joseph Lo Kin Ching and Derek Lai Kar Yan; 3rd Respondent: New Horizon Buddhist Association Limited; 4th Respondent: Lau Kai Eddie; 5th Respondent / Trustees in Bankruptcy: Joint and Several Trustees in Bankruptcy of Tam Mei Kam
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 February 2014
Case Number
HCB3777/2011
Procedural Posture
Bankruptcy and Maintenance Proceedings Under Inheritance Law / Chambers Decision on Interlocutory Applications (income Payments Order, Accrued Maintenance, Strike Out and Removal Applications)
Outcome
Applications granted in part and dismissed in part: strike out and removal applications dismissed; IPO granted in part; payment orders for monthly and accrued maintenance allocated between bankrupt and trustees; costs ordered nisi.
Legal Topics
Income Payments Order (ipo), Section 43 E Bankruptcy Ordinance, Accrued Maintenance, Reasonable Domestic Needs, Removal of Trustees, Costs
Source Language
EN
Bankruptcy Law Trusts and Estates Succession and Inheritance Family Maintenance Civil Procedure Income Payments Order (ipo) Section 43 E Bankruptcy Ordinance Accrued Maintenance +3 more

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Parties

Tam Mei Kam

Applicant / Bankrupt

HSBC International Trustee Limited

1st Respondent / Executor and Trustee

Joseph Lo Kin Ching and Derek Lai Kar Yan

2nd Respondent

New Horizon Buddhist Association Limited

3rd Respondent

Lau Kai Eddie

4th Respondent

Joint and Several Trustees in Bankruptcy of Tam Mei Kam

5th Respondent / Trustees in Bankruptcy

Procedural Posture

Bankruptcy and Maintenance Proceedings Under Inheritance Law / Chambers Decision on Interlocutory Applications (income Payments Order, Accrued Maintenance, Strike Out and Removal Applications)

Legal Issues

  1. 1 Whether an income payments order under s43E can claim accrued maintenance and income the bankrupt was entitled to prior to the IPO or bankruptcy
  2. 2 Whether the trustees' IPO application should be struck out for alleged misconduct or misconstruction of s43E
  3. 3 Whether the trustees should be removed for alleged dishonesty, recklessness or gross incompetence

Ratio Decidendi

The court held that an IPO under s43E can claim accrued maintenance and income to which the bankrupt is entitled during bankruptcy even if entitlement arose before the IPO or bankruptcy, provided the income has not been paid out or the bankrupt is not discharged; the trustees' IPO was not struck out and was allowed to claim the bulk of maintenance subject to a deduction for the bankrupt's assessed reasonable domestic needs; the trustees were not removed for misconduct.

Court Disposition

Applications granted in part and dismissed in part: strike out and removal applications dismissed; IPO granted in part; payment orders for monthly and accrued maintenance allocated between bankrupt and trustees; costs ordered nisi.

Orders

  • Dismissed Madam Tam's application to strike out the trustees' IPO application
  • Dismissed Madam Tam's application to remove the trustees