THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF HAU PO MAN STANLEY v. HAU PO FUN IVY AND ANOTHER

THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF HAU PO MAN STANLEY v. HAU PO FUN IVY AND ANOTHER

The trustees failed to prove that the bankrupt influenced or participated in NGEL's payment of HK$4,000,000 and failed to show the payment improved the sister's position beyond the guarantee; separately, the sister adduced credible evidence of pressure by her and her husband that rebutted the statutory presumption of requisite desire as to the three later transactions (transfer of a Maxi Worth share, transfer of a motor vehicle and cash repayment of HK$650,000), so the trustees did not establish unfair preference and the application was dismissed.

Citation
THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF HAU PO MAN STANLEY v. HAU PO FUN IVY AND ANOTHER
Parties
Applicant (trustees in Bankruptcy): THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF HAU PO MAN STANLEY; 1st Respondent: HAU PO FUN IVY; 2nd Respondent: DEREK YUEN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 July 2004
Case Number
HCB924/2002
Procedural Posture
Bankruptcy Proceedings Under Bankruptcy Ordinance (unfair Preference) / Judgment (court of First Instance)
Outcome
Application dismissed
Legal Topics
Unfair Preference, Preferential Transactions, Associates and Statutory Presumptions, Rebuttal of Presumption of Desire, Corporate Veil/piercing, Statutory Inquiries (s29)
Source Language
EN
Bankruptcy Insolvency Company Law Civil Procedure Unfair Preference Preferential Transactions Associates and Statutory Presumptions Rebuttal of Presumption of Desire +2 more

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Parties

THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF HAU PO MAN STANLEY

Applicant (trustees in Bankruptcy)

HAU PO FUN IVY

1st Respondent

DEREK YUEN

2nd Respondent

Procedural Posture

Bankruptcy Proceedings Under Bankruptcy Ordinance (unfair Preference) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether specified repayments/transfers constituted unfair preferences under sections 50 and 51 of the Bankruptcy Ordinance
  2. 2 Whether the statutory presumption that an associate was preferred (s50(5)) was rebutted
  3. 3 Whether the $4,000,000 paid by Novel Gain Enterprise Ltd. (NGEL) was a payment by the bankrupt or otherwise a preference

Ratio Decidendi

The trustees failed to prove that the bankrupt influenced or participated in NGEL's payment of HK$4,000,000 and failed to show the payment improved the sister's position beyond the guarantee; separately, the sister adduced credible evidence of pressure by her and her husband that rebutted the statutory presumption of requisite desire as to the three later transactions (transfer of a Maxi Worth share, transfer of a motor vehicle and cash repayment of HK$650,000), so the trustees did not establish unfair preference and the application was dismissed.

Court Disposition

Application dismissed

Orders

  • Application dismissed
  • Trustees to pay the respondents' costs of the application, such costs to be taxed if not agreed (order nisi)