BANK OF COMMUNICATIONS v. AU WAI MING

BANK OF COMMUNICATIONS v. AU WAI MING

The court found the debtor's asserted disputes and cross‑claims were not bona fide on substantial grounds and were unsubstantiated and unbelievable on the evidence; the alleged global settlement was not evidenced in writing and payments were applied to costs and the judgment debt; the cross‑claim was unsupported and any company claim would accrue to the company. Therefore the petition succeeded and the debtor was adjudged bankrupt with an order nisi for costs.

Citation
BANK OF COMMUNICATIONS v. AU WAI MING
Parties
Petitioner: Bank of Communications; Debtor: Au Wai Ming
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 February 2005
Case Number
HCB4016/2004
Procedural Posture
Bankruptcy Petition / Decision (order Nisi Granted)
Outcome
Debtor adjudged bankrupt; order nisi for costs granted against the debtor.
Legal Topics
Statutory Demand, Failure to Comply With Statutory Demand, Set‑off and Counterclaim, Full and Final Settlement, Cross‑claim for Sale at Undervalue, Rule in Foss V Harbottle, Adjudication of Bankruptcy
Source Language
EN
Bankruptcy Law Contract Law Property Law Civil Procedure Statutory Demand Failure to Comply With Statutory Demand Set‑off and Counterclaim Full and Final Settlement +3 more

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Parties

Bank of Communications

Petitioner

Au Wai Ming

Debtor

Procedural Posture

Bankruptcy Petition / Decision (order Nisi Granted)

Legal Issues

  1. 1 Whether debtor failed to comply with a Statutory Demand under section 3(1)(a) of the Bankruptcy Ordinance
  2. 2 Whether the debtor has a bona fide dispute on substantial grounds sufficient to defeat the petition
  3. 3 Whether an alleged global settlement (full and final settlement) discharged the petitioned debts

Ratio Decidendi

The court found the debtor's asserted disputes and cross‑claims were not bona fide on substantial grounds and were unsubstantiated and unbelievable on the evidence; the alleged global settlement was not evidenced in writing and payments were applied to costs and the judgment debt; the cross‑claim was unsupported and any company claim would accrue to the company. Therefore the petition succeeded and the debtor was adjudged bankrupt with an order nisi for costs.

Court Disposition

Debtor adjudged bankrupt; order nisi for costs granted against the debtor.

Orders

  • Debtor adjudged bankrupt
  • Order nisi granted for costs of the petition to be paid by the debtor