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

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

The court held the garnishee order should be amended rather than set aside, declined to order payment out to the judgment creditors pending bankruptcy proceedings, and ordered that costs be borne as follows: each of the judgment creditors and the garnishee bear their own costs up to and including 16 August; no order...

Source-derived case information.

Citation
ARTHUR ANTONIO DA SILVA AND ANOTHER v. GABRIEL RICHARDO DIAS-AZEDO AND ANOTHER
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 Party: Angela Rita Gardner
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 November 2010
Case Number
HCA2158/2009
Procedural Posture
Garnishee Proceedings / Ruling on Costs (handed Down)
Outcome
Amendment of garnishee order; no payment out to judgment creditors pending bankruptcy; specific allocation of costs as set out in orders
Legal Topics
Garnishee Order, Amendment Vs Set Aside, Stay Pending Bankruptcy, Fixed Costs Regime, Allocation of Costs
Source Language
en
Civil Procedure Banking Law Insolvency (bankruptcy) Costs Garnishee Order Amendment Vs Set Aside Stay Pending Bankruptcy Fixed Costs Regime +1 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

Angela Rita Gardner

Interested Party

Procedural Posture

Garnishee Proceedings / Ruling on Costs (handed Down)

Legal Issues

  1. 1 Whether the garnishee order absolute should be set aside or merely amended to state the correct amount owing
  2. 2 Whether the garnishee should pay out monies to the judgment creditors or whether the funds should be available to the trustee in bankruptcy if a bankruptcy order is made
  3. 3 How costs should be allocated given RHC O.62 r.32(4) fixed costs regime and the parties' errors

Ratio Decidendi

The court held the garnishee order should be amended rather than set aside, declined to order payment out to the judgment creditors pending bankruptcy proceedings, and ordered that costs be borne as follows: each of the judgment creditors and the garnishee bear their own costs up to and including 16 August; no order as to costs between garnishee and judgment creditors on 12 October; no order as to costs between Mrs Gardner and the judgment creditors; and no order for costs of written submissions.

Court Disposition

Amendment of garnishee order; no payment out to judgment creditors pending bankruptcy; specific allocation of costs as set out in orders

Orders

  • Garnishee order to be amended to insert the correct amount owing to the judgment debtor; garnishee's summons to set aside the order dismissed
  • No payment out by the garnishee to the judgment creditors; sums to await outcome of bankruptcy proceedings/claims by trustee in bankruptcy