DBS BANK (HONG KONG) LTD v. NG YUEN KWAN

DBS BANK (HONG KONG) LTD v. NG YUEN KWAN

The petitions were dismissed because the petitioner failed to comply with r.46(2) of the Bankruptcy Rules by not taking all reasonable steps to bring the Statutory Demands to the debtors' attention — specifically the petitioner knew of related PRC guarantors, addresses and a restructuring that made PRC contacts and the liquidators of Diorva HK obvious and reasonably accessible avenues of enquiry, and it failed to use relatively simple communications (letters, fax, telephone, email) or to inquire of liquidators; the petitioner did not discharge the burden of showing such steps would not have been of utility.

Citation
DBS BANK (HONG KONG) LTD v. NG YUEN KWAN
Parties
Creditor: DBS Bank (Hong Kong) Limited; Debtor: Ng Hi Yin Hydi; Debtor: Lee Yuk Lan; Debtor: Ng Yuen Kwan; Debtor: Lam Wing Lin
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 May 2012
Case Number
HCB15657/2009
Procedural Posture
Bankruptcy Proceedings / Bankruptcy Petitions / Decision on Service of Statutory Demands — Reasons for Judgment
Outcome
All four petitions dismissed for defective service
Legal Topics
Service of Statutory Demand, Personal Service, Reasonable Steps Test, Undue Influence (alleged), Debt Restructuring, Costs Taxation
Source Language
EN
Bankruptcy Civil Procedure Commercial Law Guarantees and Suretyship Service of Statutory Demand Personal Service Reasonable Steps Test Undue Influence (alleged) +2 more

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Parties

DBS Bank (Hong Kong) Limited

Creditor

Ng Hi Yin Hydi

Debtor

Lee Yuk Lan

Debtor

Ng Yuen Kwan

Debtor

Lam Wing Lin

Debtor

Procedural Posture

Bankruptcy Proceedings / Bankruptcy Petitions / Decision on Service of Statutory Demands — Reasons for Judgment

Legal Issues

  1. 1 Whether the petitioning creditor took all reasonable steps under r.46(2) of the Bankruptcy Rules to bring the Statutory Demands to the debtors' attention
  2. 2 Whether personal service was practicable and whether service by advertisement sufficed
  3. 3 Allocation of burden of proof where alleged reasonable steps were omitted

Ratio Decidendi

The petitions were dismissed because the petitioner failed to comply with r.46(2) of the Bankruptcy Rules by not taking all reasonable steps to bring the Statutory Demands to the debtors' attention — specifically the petitioner knew of related PRC guarantors, addresses and a restructuring that made PRC contacts and the liquidators of Diorva HK obvious and reasonably accessible avenues of enquiry, and it failed to use relatively simple communications (letters, fax, telephone, email) or to inquire of liquidators; the petitioner did not discharge the burden of showing such steps would not have been of utility.

Court Disposition

All four petitions dismissed for defective service

Orders

  • All four petitions dismissed
  • Costs to each debtor to be taxed if not agreed