RE MADAM YAU CHUK YING

RE MADAM YAU CHUK YING

The court held that the company-liquidator principle does not automatically apply to bankruptcy interim receivers; on the facts the Official Receiver did not take or retain possession of the leasehold premises "for the convenience of" the bankruptcy or to realise the assets to better advantage, therefore the unpaid rent for the period in issue was not an expense under s.37(1) and was provable only as an ordinary debt.

Citation
RE MADAM YAU CHUK YING
Parties
Applicant / Landlord / Creditor: City and Urban Properties Limited; Debtor / Bankrupt / Lessee: Madam Yau Chuk Ying trading as Kwok Fu Restaurant; Interim Receiver / Respondent / Trustee in Bankruptcy (after Adjudication): Official Receiver (of Hong Kong)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 July 1982
Case Number
HCB73/1981
Procedural Posture
Bankruptcy / Judgment on Summons Seeking Declaration of Priority Under S.37(1)
Outcome
Summons dismissed
Legal Topics
Priority of Expenses, Leasehold Rent, Interim Receiver Powers, Distress (distrain), Deed of Surrender
Source Language
EN
Bankruptcy Law Insolvency Property Law Contract Law Priority of Expenses Leasehold Rent Interim Receiver Powers Distress (distrain) +1 more

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Parties

City and Urban Properties Limited

Applicant / Landlord / Creditor

Madam Yau Chuk Ying trading as Kwok Fu Restaurant

Debtor / Bankrupt / Lessee

Official Receiver (of Hong Kong)

Interim Receiver / Respondent / Trustee in Bankruptcy (after Adjudication)

Procedural Posture

Bankruptcy / Judgment on Summons Seeking Declaration of Priority Under S.37(1)

Legal Issues

  1. 1 Whether unpaid rent from presentation of petition (15 July 1981) to surrender (20 November 1981) constituted "actual expenses incurred in realising any of the assets of the debtor" within s.37(1) of the Bankruptcy Ordinance
  2. 2 Whether the company-law principle that rent payable in full where a liquidator remains in possession applies to bankruptcy/interim receiver
  3. 3 Whether the Official Receiver or debtor remained in possession "for the convenience of" the bankruptcy/winding-up so as to give landlord priority

Ratio Decidendi

The court held that the company-liquidator principle does not automatically apply to bankruptcy interim receivers; on the facts the Official Receiver did not take or retain possession of the leasehold premises "for the convenience of" the bankruptcy or to realise the assets to better advantage, therefore the unpaid rent for the period in issue was not an expense under s.37(1) and was provable only as an ordinary debt.

Court Disposition

Summons dismissed

Orders

  • Summons dismissed
  • No declaration that unpaid rent for period 15 July 1981 to 20 November 1981 is an expense under s.37(1) of the Bankruptcy Ordinance