PATRICK COWLEY AND ANOTHER v. ALL POWERFUL HOLDING LTD AND ANOTHER

PATRICK COWLEY AND ANOTHER v. ALL POWERFUL HOLDING LTD AND ANOTHER

The application to file and serve a fresh affirmation was dismissed because it lacked a clear jurisdictional basis, sought to file evidence out of time contrary to prior directions, substitution would prejudice the trustees by preventing proper testing of contradictions and cross-examination, and the proposed grounds (willingness of a new deponent to attend) did not constitute sufficient justification.

Citation
[2022] HKCFI 604
Parties
Applicant (joint and Several Trustee in Bankruptcy): Patrick Cowley; Applicant (joint and Several Trustee in Bankruptcy): Wong Wing Sze Tiffany; 1st Respondent: All Powerful Holding Limited; 2nd Respondent: All Powerful Investment Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 February 2022
Case Number
HCB104/2017
Procedural Posture
Rule 117 Application (bankruptcy) / Decision (in Chambers)
Outcome
2nd Respondent's summons dated 10 September 2021 dismissed
Legal Topics
Rule 117, Leave to File Out of Time Evidence, Substitution of Deponent, Cross Examination
Source Language
EN
Bankruptcy Civil Procedure Evidence Rule 117 Leave to File Out of Time Evidence Substitution of Deponent Cross Examination

Case Brief

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Parties

Patrick Cowley

Applicant (joint and Several Trustee in Bankruptcy)

Wong Wing Sze Tiffany

Applicant (joint and Several Trustee in Bankruptcy)

All Powerful Holding Limited

1st Respondent

All Powerful Investment Limited

2nd Respondent

Procedural Posture

Rule 117 Application (bankruptcy) / Decision (in Chambers)

Legal Issues

  1. 1 Whether leave should be granted to file and serve a fresh affirmation replacing the 4th affirmation
  2. 2 Whether substitution of the deponent and filing of out-of-time evidence is justified
  3. 3 Whether the application has a proper jurisdictional basis

Ratio Decidendi

The application to file and serve a fresh affirmation was dismissed because it lacked a clear jurisdictional basis, sought to file evidence out of time contrary to prior directions, substitution would prejudice the trustees by preventing proper testing of contradictions and cross-examination, and the proposed grounds (willingness of a new deponent to attend) did not constitute sufficient justification.

Court Disposition

2nd Respondent's summons dated 10 September 2021 dismissed

Orders

  • Dismiss the 2nd Respondent's summons dated 10 September 2021 seeking leave to file and serve a fresh affirmation
  • Parties to be heard on costs