RE YIP WAN FUNG

RE YIP WAN FUNG

Application dismissed. Key reasons: on contractual construction the Policy's exclusion requiring a "judgment, or any other final adjudication" must be read in context with cover of defence costs including appeals, such that 'judgment' means a judgment in the nature of final adjudication (the CFA decision), so the petitioner’s claim was within the limitation period; petitioner disclosed direct telephone contact and other service attempts and there was no proved knowledge by petitioner of voicemail or material alternative service route that would make the substituted service order vitiated by material non-disclosure; bankrupt had actual notice of proceedings and earlier hearings yet failed...

Citation
[2021] HKCFI 3610
Parties
Bankrupt: Yip Wan Fung; Petitioner: AIG Insurance Hong Kong Limited (formerly American International Underwriters Limited); Official Receiver & Provisional Trustee: Official Receiver & Provisional Trustee
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 December 2021
Case Number
HCB6783/2019
Procedural Posture
Bankruptcy Proceedings (bankruptcy Petition) / Application to Annul Bankruptcy Order Under Section 33(1)(a) of the Bankruptcy Ordinance
Outcome
Application to annul bankruptcy order dismissed
Legal Topics
Annulment, Substituted Service, Statutory Demand, Service of Process, Contract Interpretation, Limitation Period, Costs
Source Language
EN
Bankruptcy Civil Procedure Insurance Contract Limitation Annulment Substituted Service Statutory Demand +4 more

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Parties

Yip Wan Fung

Bankrupt

AIG Insurance Hong Kong Limited (formerly American International Underwriters Limited)

Petitioner

Official Receiver & Provisional Trustee

Official Receiver & Provisional Trustee

Procedural Posture

Bankruptcy Proceedings (bankruptcy Petition) / Application to Annul Bankruptcy Order Under Section 33(1)(a) of the Bankruptcy Ordinance

Legal Issues

  1. 1 Whether there was a bona fide dispute on the debt based on limitation (did limitation run from trial conviction or from final exhaustion of appeals)
  2. 2 Whether the substituted service order was obtained by material non-disclosure (Leighton Hill address and voicemail)
  3. 3 Whether the bankrupt received notice of the May 13 2020 hearing

Ratio Decidendi

Application dismissed. Key reasons: on contractual construction the Policy's exclusion requiring a "judgment, or any other final adjudication" must be read in context with cover of defence costs including appeals, such that 'judgment' means a judgment in the nature of final adjudication (the CFA decision), so the petitioner’s claim was within the limitation period; petitioner disclosed direct telephone contact and other service attempts and there was no proved knowledge by petitioner of voicemail or material alternative service route that would make the substituted service order vitiated by material non-disclosure; bankrupt had actual notice of proceedings and earlier hearings yet failed...

Court Disposition

Application to annul bankruptcy order dismissed

Orders

  • Application dismissed
  • Costs order nisi: costs of the Petitioner for the Application to be paid personally by Yip Wan Fung to be taxed if not agreed, to be paid after unsecured creditors of Yip Wan Fung have been fully repaid or upon her discharge from bankruptcy whichever is earlier