TANG WAI YEE, SYLVIA v. HE SHIMENG AND ANOTHER

TANG WAI YEE, SYLVIA v. HE SHIMENG AND ANOTHER

The applicant failed to discharge the burden of proving a genuine triable issue or bona fide dispute under Bankruptcy Rules r48(5)(b); the adjournment was refused as an abuse and not bona fide; accordingly the statutory demand was not set aside and respondents were granted leave to present a bankruptcy petition with costs.

Citation
TANG WAI YEE, SYLVIA v. HE SHIMENG AND ANOTHER
Parties
Applicant (judgment Debtor): TANG WAI YEE, SYLVIA; 1st Respondent (1st Judgment Creditor): HE SHIMENG; 2nd Respondent (2nd Judgment Creditor): LIN LINA FANG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 March 2003
Case Number
HCSD24/2002
Procedural Posture
Application to Set Aside Statutory Demand (bankruptcy Rules) / Hearing and Decision in Chambers; Appeal Pending (cacv No. 53 of 2003)
Outcome
Application to set aside statutory demand dismissed; respondents granted leave to present bankruptcy petition; costs awarded to respondents
Legal Topics
Statutory Demand, Default Judgment, Stay of Execution, Adjournment, Triable Issue, Costs
Source Language
EN
Bankruptcy Civil Procedure Contract Statutory Demand Default Judgment Stay of Execution Adjournment Triable Issue +1 more

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Parties

TANG WAI YEE, SYLVIA

Applicant (judgment Debtor)

HE SHIMENG

1st Respondent (1st Judgment Creditor)

LIN LINA FANG

2nd Respondent (2nd Judgment Creditor)

Procedural Posture

Application to Set Aside Statutory Demand (bankruptcy Rules) / Hearing and Decision in Chambers; Appeal Pending (cacv No. 53 of 2003)

Legal Issues

  1. 1 Whether the statutory demand should be set aside under Bankruptcy Rules r48(5)(b) because the debt is disputed on substantial grounds
  2. 2 Whether an adjournment should be granted pending appeal and whether that would amount to an effective stay of execution
  3. 3 Whether the applicant has demonstrated a genuine triable issue sufficient to set aside a default judgment

Ratio Decidendi

The applicant failed to discharge the burden of proving a genuine triable issue or bona fide dispute under Bankruptcy Rules r48(5)(b); the adjournment was refused as an abuse and not bona fide; accordingly the statutory demand was not set aside and respondents were granted leave to present a bankruptcy petition with costs.

Court Disposition

Application to set aside statutory demand dismissed; respondents granted leave to present bankruptcy petition; costs awarded to respondents

Orders

  • Application to set aside the statutory demand dismissed
  • Leave granted to the respondents to present a bankruptcy petition forthwith