FAIRBAIRN & KWOK v. MIDDLE EAST FINANCE INTERNATIONAL LTD

FAIRBAIRN & KWOK v. MIDDLE EAST FINANCE INTERNATIONAL LTD

The court exercised its discretion to refuse the s.70 charging order because the applicants had a contractual remedy against the debtor's family who possessed assets in Hong Kong, there was no evidence of an outright refusal by the family to pay, the applicants had not exhausted those remedies, and it would be manifestly unjust and unreasonable to allow a charge on the respondent before those avenues were pursued.

Citation
FAIRBAIRN & KWOK v. MIDDLE EAST FINANCE INTERNATIONAL LTD
Parties
Applicant (solicitors): Fairbairn & Kwok; Respondent (judgment Creditor): Middle East Finance International Limited; Debtor: Kamla Sujanani (aka Kamla Lavinia Sujanani alias Malita N Hemandas)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 August 1986
Case Number
HCB303/1985
Procedural Posture
Bankruptcy / Application for Charging Order Under Section 70 of the Legal Practitioners Ordinance in Bankruptcy Proceedings (summons in Appeal Transferred to Bankruptcy File)
Outcome
Application for charging order refused.
Legal Topics
Charging Order, Solicitor's Lien, Set Off, Bankruptcy Petition, Costs Recovery
Source Language
EN
Bankruptcy Legal Profession Civil Procedure Costs Charging Order Solicitor's Lien Set Off Bankruptcy Petition +1 more

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Parties

Fairbairn & Kwok

Applicant (solicitors)

Middle East Finance International Limited

Respondent (judgment Creditor)

Kamla Sujanani (aka Kamla Lavinia Sujanani alias Malita N Hemandas)

Debtor

Procedural Posture

Bankruptcy / Application for Charging Order Under Section 70 of the Legal Practitioners Ordinance in Bankruptcy Proceedings (summons in Appeal Transferred to Bankruptcy File)

Legal Issues

  1. 1 Whether a solicitor is entitled to a charging order under section 70 for taxed costs arising from proceedings he prosecuted on behalf of the debtor
  2. 2 Whether applicants must first exhaust contractual remedies against third parties (the debtor's family) before a charging order may be made against the respondent creditor
  3. 3 Whether it would be just and reasonable to make a charging order where alternative sources of payment exist and set-off by respondent may apply

Ratio Decidendi

The court exercised its discretion to refuse the s.70 charging order because the applicants had a contractual remedy against the debtor's family who possessed assets in Hong Kong, there was no evidence of an outright refusal by the family to pay, the applicants had not exhausted those remedies, and it would be manifestly unjust and unreasonable to allow a charge on the respondent before those avenues were pursued.

Court Disposition

Application for charging order refused.

Orders

  • Application for a charging order under section 70 of the Legal Practitioners Ordinance, Cap. 159 refused.