LAU SIU HUNG AND ANOTHER v. KRZYSZTOF MARSZALEK AND ANOTHER

LAU SIU HUNG AND ANOTHER v. KRZYSZTOF MARSZALEK AND ANOTHER

The liquidators established the statutory elements of unfair preference in respect of the impugned payments; the court rejected R1's Tekram explanation as inherently incredible and held the US$300,000 was a payment to R1; R2 was a creditor in respect of the challenged transactions; annulment of the respondents' bankruptcies did not operate to bar the liquidators' claims in respect of debts not proved or unknown at the time of annulment; accordingly the application to set aside the payments as unfair preferences was allowed and orders in terms of paras 1-4 and 6 of the Amended Summons were made.

Citation
LAU SIU HUNG AND ANOTHER v. KRZYSZTOF MARSZALEK AND ANOTHER
Parties
Applicant (joint and Several Liquidator): Lau Siu Hung; Applicant (joint and Several Liquidator): Liang Yang Keng; Respondent (ex Director): Krzysztof Marszalek; Respondent (ex Director): Yu Shun Leung Grady
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 June 2013
Case Number
HCCW484/2009
Procedural Posture
Companies (winding Up) Proceedings / Judgment (in Chambers)
Outcome
Application allowed.
Legal Topics
Unfair Preference, Annulment of Bankruptcy, Estoppel by Record, Liquidators' Recovery Actions
Source Language
EN
Company Law Insolvency Law Bankruptcy Law Unfair Preference Annulment of Bankruptcy Estoppel by Record Liquidators' Recovery Actions

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Parties

Lau Siu Hung

Applicant (joint and Several Liquidator)

Liang Yang Keng

Applicant (joint and Several Liquidator)

Krzysztof Marszalek

Respondent (ex Director)

Yu Shun Leung Grady

Respondent (ex Director)

Procedural Posture

Companies (winding Up) Proceedings / Judgment (in Chambers)

Legal Issues

  1. 1 Whether 19 payments to ex-directors constituted unfair preferences under ss 266-266B Cap 32 and ss 50-51B Cap 6
  2. 2 Whether the US$300,000 payment was truly to Tekram Corporation and thus not a payment to the director
  3. 3 Whether certain payments to R2 were repayments of loans (i.e. not provable as creditor claims)

Ratio Decidendi

The liquidators established the statutory elements of unfair preference in respect of the impugned payments; the court rejected R1's Tekram explanation as inherently incredible and held the US$300,000 was a payment to R1; R2 was a creditor in respect of the challenged transactions; annulment of the respondents' bankruptcies did not operate to bar the liquidators' claims in respect of debts not proved or unknown at the time of annulment; accordingly the application to set aside the payments as unfair preferences was allowed and orders in terms of paras 1-4 and 6 of the Amended Summons were made.

Court Disposition

Application allowed.

Orders

  • Order made in terms of paras 1 to 4 and 6 of the Amended Summons re-filed on 13 December 2012.
  • Parties to file and serve written submissions on interest not exceeding two pages within three working days; interest to be determined on paper.