ARTHUR ANTONIO DA SILVA AND ANOTHER v. GABRIEL RICHARDO DIAS-AZEDO

ARTHUR ANTONIO DA SILVA AND ANOTHER v. GABRIEL RICHARDO DIAS-AZEDO

Although the garnishee order was properly amended under the slip rule and the amendment related back to 23 February 2010, the delay in payment meant the attachment was not completed by receipt before the subsequent bankruptcy steps; therefore the court refused to order payment out and left disposition of the funds...

Source-derived case information.

Citation
ARTHUR ANTONIO DA SILVA AND ANOTHER v. GABRIEL RICHARDO DIAS-AZEDO
Parties
1st Plaintiff (1st Judgment Creditor): Arthur Antonio Da Silva; 2nd Plaintiff (2nd Judgment Creditor): Betty Da Silva Fei Po Ki; Defendant (judgment Debtor): Gabriel Richardo Dias-Azedo; Garnishee: Hongkong and Shanghai Banking Corporation Limited; Interested Creditor: Mrs Gardner
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 October 2010
Case Number
HCA2158/2009
Procedural Posture
Garnishee Proceedings / Post Judgment Enforcement / Ruling on Amendment of Garnishee Order and Payment Out Following Bankruptcy Petition
Outcome
Payment out refused; funds to be left to bankruptcy court for administration
Legal Topics
Garnishee Order, Payment Out, Relation Back, Slip Rule, Preference in Bankruptcy, Bankruptcy Petition, Statutory Demand
Source Language
en
Bankruptcy Civil Procedure Enforcement of Judgment Injunctions Garnishee Order Payment Out Relation Back Slip Rule +3 more

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Parties

Arthur Antonio Da Silva

1st Plaintiff (1st Judgment Creditor)

Betty Da Silva Fei Po Ki

2nd Plaintiff (2nd Judgment Creditor)

Gabriel Richardo Dias-Azedo

Defendant (judgment Debtor)

Hongkong and Shanghai Banking Corporation Limited

Garnishee

Mrs Gardner

Interested Creditor

Procedural Posture

Garnishee Proceedings / Post Judgment Enforcement / Ruling on Amendment of Garnishee Order and Payment Out Following Bankruptcy Petition

Legal Issues

  1. 1 Whether amendment of a garnishee order under the slip rule can relate back to the original order date and defeat a subsequent bankruptcy trustee claim
  2. 2 Whether payment out to judgment creditors would constitute an unlawful preference in light of an extant bankruptcy petition and default judgment
  3. 3 Whether the court should set aside the garnishee order or amend it and leave disposal to the bankruptcy court

Ratio Decidendi

Although the garnishee order was properly amended under the slip rule and the amendment related back to 23 February 2010, the delay in payment meant the attachment was not completed by receipt before the subsequent bankruptcy steps; therefore the court refused to order payment out and left disposition of the funds to the bankruptcy court to avoid interfering with bankruptcy administration and potential trustee rights under s45.

Court Disposition

Payment out refused; funds to be left to bankruptcy court for administration

Orders

  • Amendment of the garnishee order to $200,000 made on 16 August 2010 to relate back to 23 February 2010
  • Leave disposal of the amount to the bankruptcy court