RE: TSE SHEUNG YAN and EX PARTE: CHEKIANG FIRST BANK LTD.

RE: TSE SHEUNG YAN and EX PARTE: CHEKIANG FIRST BANK LTD.

The court found the Debtors' account of a binding agreement unreliable against contemporaneous bank records and credible bank witness evidence; the conditional concessions required surrender by 17 August 1999 which did not occur, and even if there had been an agreement it would lack fresh consideration under the preferred authority Re Selectmove. The alleged undervalue sale did not prima facie exceed the unsecured debt such as to prevent bankruptcy orders. Accordingly bankruptcy orders were made against both Debtors.

Citation
RE: TSE SHEUNG YAN and EX PARTE: CHEKIANG FIRST BANK LTD.
Parties
Petitioner / Judgment Creditor: Chekiang First Bank Limited; Debtor / Respondent: Tse Sheung Yan; Debtor / Respondent: Lam Yuk Ha; Official Receiver (attendance Excused): Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 July 2000
Case Number
HCB62/2000
Procedural Posture
Bankruptcy Petition (high Court, Court of First Instance) / Hearing and Judgment (bankruptcy Orders Made)
Outcome
Bankruptcy orders made against Mr Tse Sheung Yan and Ms Lam Yuk Ha; costs ordered nisi to the Petitioner
Legal Topics
Bankruptcy Order, Power of Sale by Mortgagee, Variation of Contract, Consideration, Undervalue Sale, Credibility of Witnesses
Source Language
EN
Bankruptcy Mortgage Contract Law Property Law Civil Procedure Bankruptcy Order Power of Sale by Mortgagee Variation of Contract +3 more

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Parties

Chekiang First Bank Limited

Petitioner / Judgment Creditor

Tse Sheung Yan

Debtor / Respondent

Lam Yuk Ha

Debtor / Respondent

Official Receiver

Official Receiver (attendance Excused)

Procedural Posture

Bankruptcy Petition (high Court, Court of First Instance) / Hearing and Judgment (bankruptcy Orders Made)

Legal Issues

  1. 1 Whether there was a binding agreement between the Bank and the Debtors varying repayment terms and conditioning concessions on surrender of possession
  2. 2 Whether any such agreement was supported by consideration or was merely performance of an existing obligation
  3. 3 Whether the Bank sold the Property at an undervalue so as to give the Debtors a viable claim to defeat bankruptcy

Ratio Decidendi

The court found the Debtors' account of a binding agreement unreliable against contemporaneous bank records and credible bank witness evidence; the conditional concessions required surrender by 17 August 1999 which did not occur, and even if there had been an agreement it would lack fresh consideration under the preferred authority Re Selectmove. The alleged undervalue sale did not prima facie exceed the unsecured debt such as to prevent bankruptcy orders. Accordingly bankruptcy orders were made against both Debtors.

Court Disposition

Bankruptcy orders made against Mr Tse Sheung Yan and Ms Lam Yuk Ha; costs ordered nisi to the Petitioner

Orders

  • Bankruptcy order made on each petition presented against Tse Sheung Yan and Lam Yuk Ha
  • Order nisi that the Petitioner (Chekiang First Bank Limited) is to have the costs of the Petitions