FU CHI MAN v. CHAN KIN WING

FU CHI MAN v. CHAN KIN WING

There is a bona fide dispute on substantial ground as to the existence and terms of the alleged oral shareholders' agreement that cannot be resolved on the documentary record alone and requires viva voce evidence; service of the statutory demand, while not perfect, was not impeached on the facts; accordingly the...

Source-derived case information.

Citation
[2021] HKCFI 3330
Parties
Petitioner: Fu Chi Man; Respondent: Chan Kin Wing
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 November 2021
Case Number
HCB280/2021
Procedural Posture
Bankruptcy Petition / Dismissed After Contested Hearing
Outcome
petition dismissed
Legal Topics
Statutory Demand, Bona Fide Dispute, Directors' Guarantee, Service of Process, Substituted Service, Costs
Source Language
en
Bankruptcy Company Law Contract Civil Procedure Statutory Demand Bona Fide Dispute Directors' Guarantee Service of Process +2 more

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Parties

Fu Chi Man

Petitioner

Chan Kin Wing

Respondent

Procedural Posture

Bankruptcy Petition / Dismissed After Contested Hearing

Legal Issues

  1. 1 Whether there is a bona fide dispute on the alleged debt arising from a shareholders' agreement such that the bankruptcy petition must be dismissed
  2. 2 Whether the statutory demand was validly served in compliance with Bankruptcy Rules and Practice Direction 3.1
  3. 3 Whether the petitioner relied on the correct cause of action as set out in the statutory demand (contractual contribution under a shareholders' agreement rather than contribution as co-guarantor)

Ratio Decidendi

There is a bona fide dispute on substantial ground as to the existence and terms of the alleged oral shareholders' agreement that cannot be resolved on the documentary record alone and requires viva voce evidence; service of the statutory demand, while not perfect, was not impeached on the facts; accordingly the petition, founded on the disputed contractual basis, must be dismissed.

Court Disposition

petition dismissed

Orders

  • Leave granted to respondent to file and serve a further affirmation for the sole purpose of adducing correspondence with the Companies Registry; respondent to pay petitioner's costs of and occasioned by that summons (order nisi)
  • Petitioner to pay 50% of respondent's costs of and occasioned by the petition; all costs to be taxed if not agreed (order nisi)