RE LI WANG

RE LI WANG

The court found the bank did not do all that was reasonable under rule 46(2) because it ceased inquiry after two address attempts and a one‑day advertisement without undertaking reasonable further steps (such as updated company inquiries, contacting the Official Receiver or attending the latest registered office), and the bank failed to place sufficient evidence to show such steps would have been futile; non-compliance with rule 46(2) tainted the proceedings and the court exercised its discretion to annul the bankruptcy order and dismiss the petition.

Citation
RE LI WANG
Parties
Petitioner: Petitioner (bank); Debtor/applicant (bankrupt): Madam Li Wang; Official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 June 2004
Case Number
HCB15846/2003
Procedural Posture
Bankruptcy Application to Annul/rescind Bankruptcy Order / Hearing and Judgment on Application to Annul (judgment Delivered)
Outcome
Application allowed; bankruptcy order annulled/rescinded and petition dismissed
Legal Topics
Service of Statutory Demand, Bankruptcy Rules Compliance (rule 46, Rule 49), Annulment/rescission of Bankruptcy Order, Proof and Burden of Service, Costs
Source Language
EN
Bankruptcy Civil Procedure Debt Enforcement Service of Statutory Demand Bankruptcy Rules Compliance (rule 46, Rule 49) Annulment/rescission of Bankruptcy Order Proof and Burden of Service Costs

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Parties

Petitioner (bank)

Petitioner

Madam Li Wang

Debtor/applicant (bankrupt)

Official Receiver

Official Receiver

Procedural Posture

Bankruptcy Application to Annul/rescind Bankruptcy Order / Hearing and Judgment on Application to Annul (judgment Delivered)

Legal Issues

  1. 1 Whether the creditor complied with rule 46(2) of the Bankruptcy Rules to do all that was reasonable to bring the statutory demand to the debtor's attention and, if practicable, to effect personal service
  2. 2 Whether service of the statutory demand (and thereby the petition) was valid and whether non-compliance taints the bankruptcy proceedings such that the bankruptcy order should be set aside
  3. 3 Allocation of evidential burden between applicant and creditor when non-compliance is alleged

Ratio Decidendi

The court found the bank did not do all that was reasonable under rule 46(2) because it ceased inquiry after two address attempts and a one‑day advertisement without undertaking reasonable further steps (such as updated company inquiries, contacting the Official Receiver or attending the latest registered office), and the bank failed to place sufficient evidence to show such steps would have been futile; non-compliance with rule 46(2) tainted the proceedings and the court exercised its discretion to annul the bankruptcy order and dismiss the petition.

Court Disposition

Application allowed; bankruptcy order annulled/rescinded and petition dismissed

Orders

  • Bankruptcy order annulled and petition dismissed
  • Costs of the application to be paid by the petitioner to Madam Li Wang and to the Official Receiver