RE LEUNG YAT TUNG

RE LEUNG YAT TUNG

The Petitioning Creditor may be permitted to have its affirmation relied upon in the Official Receiver's summons but only to the extent of the two grounds pursued by the Official Receiver; the court has no jurisdiction to entertain or waive the Petitioning Creditor's separate, late application or its additional grounds because failure to make the statutory application under s.30A(6) BO is not a mere formal irregularity and engages a condition precedent to the court's jurisdiction.

Citation
RE LEUNG YAT TUNG
Parties
Petitioning Creditor: Healthy Wharf Limited; Bankrupt / Debtor: Leung Yat Tung; Official Receiver and Trustee in Bankruptcy: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 October 2005
Case Number
HCB2019/2000
Procedural Posture
Bankruptcy Proceedings / Interlocutory Hearing on Preliminary Issues Regarding Objection to Automatic Discharge Under S.30 a BO
Outcome
Affirmation of Ip Tak Kong admissible and Petitioning Creditor may be heard only in respect of the Official Receiver's two stated grounds; Petitioning Creditor's own additional grounds not allowed because it failed to make the required statutory application.
Legal Topics
Automatic Discharge, Objection to Discharge, Locus Standi of Creditors, Statutory Procedure S.30 a BO, Bankruptcy Rules R.88
Source Language
EN
Bankruptcy Insolvency Civil Procedure Automatic Discharge Objection to Discharge Locus Standi of Creditors Statutory Procedure S.30 a BO Bankruptcy Rules R.88

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 11 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Healthy Wharf Limited

Petitioning Creditor

Leung Yat Tung

Bankrupt / Debtor

Official Receiver

Official Receiver and Trustee in Bankruptcy

Procedural Posture

Bankruptcy Proceedings / Interlocutory Hearing on Preliminary Issues Regarding Objection to Automatic Discharge Under S.30 a BO

Legal Issues

  1. 1 Whether the Petitioning Creditor can file and rely on the Affirmation filed 21 February 2005
  2. 2 Whether failure to apply at least 14 days before automatic discharge under s.30A(6) BO/r.88 BR can be waived by the Court
  3. 3 Whether the Petitioning Creditor can be heard in the Official Receiver's summons and to what extent

Ratio Decidendi

The Petitioning Creditor may be permitted to have its affirmation relied upon in the Official Receiver's summons but only to the extent of the two grounds pursued by the Official Receiver; the court has no jurisdiction to entertain or waive the Petitioning Creditor's separate, late application or its additional grounds because failure to make the statutory application under s.30A(6) BO is not a mere formal irregularity and engages a condition precedent to the court's jurisdiction.

Court Disposition

Affirmation of Ip Tak Kong admissible and Petitioning Creditor may be heard only in respect of the Official Receiver's two stated grounds; Petitioning Creditor's own additional grounds not allowed because it failed to make the required statutory application.

Orders

  • Petitioning Creditor's affirmation dated 21 February 2005 admitted for purposes of Official Receiver's summons but limited to the two grounds pursued by the Official Receiver
  • No order as to costs between the Petitioning Creditor and the Bankrupt