RE A STATUTORY DEMAND SERVED BY WILLIAM E. SIMON & SONS (ASIA) LTD.

RE A STATUTORY DEMAND SERVED BY WILLIAM E. SIMON & SONS (ASIA) LTD.

The 1997 agreement was a preliminary, conditional agreement which lapsed because the required replacement agreements and board approval were never executed; accordingly it did not release the debtor from his guarantee, the creditor is not estopped from enforcing the original agreement, there was no material alteration prejudicing the debtor, and the defects in the statutory demand were not sufficient to set it aside. The application to set aside the statutory demand is dismissed; creditor may present a bankruptcy petition and recover costs.

Citation
RE A STATUTORY DEMAND SERVED BY WILLIAM E. SIMON & SONS (ASIA) LTD.
Parties
Applicant/debtor: Lam Yin Sang; Respondent/creditor: William E. Simon & Sons (Asia) Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 November 1999
Case Number
HCSD26/1999
Procedural Posture
Statutory Demand Under Bankruptcy Ordinance (rule 47) / Application to Set Aside Statutory Demand; Decision in Chambers
Outcome
Application dismissed. Statutory demand not set aside.
Legal Topics
Statutory Demand, Guarantee, Agreement to Agree, Estoppel, Waiver, Material Alteration, Formal Requirements of Statutory Demand, Summary Judgment Procedural Test
Source Language
EN
Bankruptcy Law Contract Law Equity Statutory Demand Guarantee Agreement to Agree Estoppel Waiver +3 more

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Parties

Lam Yin Sang

Applicant/debtor

William E. Simon & Sons (Asia) Limited

Respondent/creditor

Procedural Posture

Statutory Demand Under Bankruptcy Ordinance (rule 47) / Application to Set Aside Statutory Demand; Decision in Chambers

Legal Issues

  1. 1 Whether the 1997 agreement released the guarantor from the 1993 master agreement guarantee
  2. 2 Whether the conduct of the creditor estops it from enforcing the original guarantee
  3. 3 Whether there was a material alteration of the master agreement to the debtor's prejudice

Ratio Decidendi

The 1997 agreement was a preliminary, conditional agreement which lapsed because the required replacement agreements and board approval were never executed; accordingly it did not release the debtor from his guarantee, the creditor is not estopped from enforcing the original agreement, there was no material alteration prejudicing the debtor, and the defects in the statutory demand were not sufficient to set it aside. The application to set aside the statutory demand is dismissed; creditor may present a bankruptcy petition and recover costs.

Court Disposition

Application dismissed. Statutory demand not set aside.

Orders

  • Creditor authorized to present a bankruptcy petition against the debtor forthwith.
  • Creditor's costs of this application to be taxed and paid forthwith by the debtor.