RE YAM SZE PUI

RE YAM SZE PUI

Amendments to bankruptcy petitions are permissible where the error is one of form because the correct act of bankruptcy date can be calculated from facts correctly pleaded; however where service was by post and the petition does not state that service is deemed after a prescribed period so that the effective date cannot be calculated, the defect is substantive and the petition must be dismissed if the three month period has expired; if the three month period has not expired leave to amend may be granted to state the deemed date of service.

Citation
RE YAM SZE PUI
Parties
Petitioner/creditor: The China and South Sea Bank Limited; Petitioner/creditor: Caltex Oil Hong Kong Limited; Petitioner/creditor: Lee Ho Kee trading as Hang Lee Company; Debtor: Yam Sze Pui; Debtor: Yan Chung Kai trading as Kai Kee Piecegoods; Debtor: Ng Yin Man (Farwina); Debtor: Yip Kit Wah; Debtor: Wong Min Fook trading as Yau Lee; Debtor: Chik Yip Fai; Interested Party/official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 November 1985
Case Number
HCB413/1985
Procedural Posture
Bankruptcy Petitions for Receiving Orders / Applications to Amend Petitions/heard and Disposed at Interlocutory Stage
Outcome
Mixed: amendments allowed where date could be calculated or where three month period not expired; petition dismissed where omission of deemed service date rendered notice incapable of calculation and three month period had expired
Legal Topics
Amendment of Petitions, Act of Bankruptcy, Service by Post, Order 10 Rule 3, Form Versus Substance
Source Language
EN
Bankruptcy Civil Procedure Service of Process Amendment of Petitions Act of Bankruptcy Service by Post Order 10 Rule 3 Form Versus Substance

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Parties

The China and South Sea Bank Limited

Petitioner/creditor

Caltex Oil Hong Kong Limited

Petitioner/creditor

Lee Ho Kee trading as Hang Lee Company

Petitioner/creditor

Yam Sze Pui

Debtor

Yan Chung Kai trading as Kai Kee Piecegoods

Debtor

Ng Yin Man (Farwina)

Debtor

Yip Kit Wah

Debtor

Wong Min Fook trading as Yau Lee

Debtor

Chik Yip Fai

Debtor

Official Receiver

Interested Party/official Receiver

Procedural Posture

Bankruptcy Petitions for Receiving Orders / Applications to Amend Petitions/heard and Disposed at Interlocutory Stage

Legal Issues

  1. 1 Whether a petition may be amended outside the three month statutory period when the date of act of bankruptcy is incorrectly stated but can be calculated from the notice
  2. 2 Whether service by post requires use of the deemed service date when calculating the running of a bankruptcy notice and whether omission of that fact in the petition is fatal
  3. 3 Whether a defect in a petition is one of form or substance for purposes of allowing amendment

Ratio Decidendi

Amendments to bankruptcy petitions are permissible where the error is one of form because the correct act of bankruptcy date can be calculated from facts correctly pleaded; however where service was by post and the petition does not state that service is deemed after a prescribed period so that the effective date cannot be calculated, the defect is substantive and the petition must be dismissed if the three month period has expired; if the three month period has not expired leave to amend may be granted to state the deemed date of service.

Court Disposition

Mixed: amendments allowed where date could be calculated or where three month period not expired; petition dismissed where omission of deemed service date rendered notice incapable of calculation and three month period had expired

Orders

  • Granted leave to amend petition in Bankruptcy Nos. B413, B414, B415 and B416 to correct calculable date; hearings adjourned and no receiving orders made where opposition filed
  • Dismissed petition in Bankruptcy No. B448 for failure to plead a calculable date of act of bankruptcy where service was by post and three month period had expired