DAH SING BANK, LTD v. DAYLIGHT INDUSTRIAL CO LTD AND ANOTHER

DAH SING BANK, LTD v. DAYLIGHT INDUSTRIAL CO LTD AND ANOTHER

The court held that the doctrine of relation back applies to a Charging Order Nisi so that the operative date for the charging order (and its registration for s.45 purposes) is the date of the Charging Order Nisi and its registration. Because the Charging Order Nisi was registered on 6 February prior to the...

Source-derived case information.

Citation
DAH SING BANK, LTD v. DAYLIGHT INDUSTRIAL CO LTD AND ANOTHER
Parties
Plaintiff: DAH SING BANK, LTD.; 1st Defendant: DAYLIGHT INDUSTRIAL COMPANY LIMITED; 2nd Defendant: THE OFFICIAL RECEIVER AND TRUSTEE OF THE ESTATE OF CHEUNG WAH, DECEASED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 March 1987
Case Number
HCMP2746/1986
Procedural Posture
Interpleader Summons / Judgment (high Court, in Chambers)
Outcome
Judgment for 1st Defendant; monies held by plaintiff payable to 1st Defendant
Legal Topics
Charging Order, Relation Back Doctrine, Priority of Claims, Registration in Land Office, Act of Bankruptcy, Completion of Execution
Source Language
en
Bankruptcy Property Law Civil Procedure Charging Order Relation Back Doctrine Priority of Claims Registration in Land Office Act of Bankruptcy +1 more

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Parties

DAH SING BANK, LTD.

Plaintiff

DAYLIGHT INDUSTRIAL COMPANY LIMITED

1st Defendant

THE OFFICIAL RECEIVER AND TRUSTEE OF THE ESTATE OF CHEUNG WAH, DECEASED

2nd Defendant

Procedural Posture

Interpleader Summons / Judgment (high Court, in Chambers)

Legal Issues

  1. 1 Whether the doctrine of relation back applies to a Charging Order Nisi for purposes of s.45 Bankruptcy Ordinance
  2. 2 Whether an execution by way of charging order is completed for priority purposes before notice of an act of bankruptcy when the Charging Order Nisi has been registered prior to such notice but the Order was made absolute after notice
  3. 3 Whether the operative date for registration in s.45 is the registration of the Nisi or of the Absolute Order

Ratio Decidendi

The court held that the doctrine of relation back applies to a Charging Order Nisi so that the operative date for the charging order (and its registration for s.45 purposes) is the date of the Charging Order Nisi and its registration. Because the Charging Order Nisi was registered on 6 February prior to the bankruptcy notice of 19 February, the 1st Defendant's execution was completed before the act of bankruptcy and the 1st Defendant is entitled to the surplus.

Court Disposition

Judgment for 1st Defendant; monies held by plaintiff payable to 1st Defendant

Orders

  • Monies being held by the plaintiff payable to the 1st Defendant
  • Parties to be heard on costs