LI HAILING v. TOO HUI CLOTHING TRADE CO., LTD

LI HAILING v. TOO HUI CLOTHING TRADE CO., LTD

1609P was first in time at all relevant steps and no winding up petition had been presented by 1744P; a hearsay affidavit of contingent intention to commence winding up ‘if necessary’ and unsupported belief of insolvency were insufficient to displace the first garnishee order nisi. Therefore the court exercised its discretion to make the 1609 Order Nisi absolute, discharge the 1744 Order Nisi, and order costs against 1744P.

Citation
LI HAILING v. TOO HUI CLOTHING TRADE CO., LTD
Parties
Plaintiff (hca 1609/2016): SNEE ENTREPRISE; 1st Defendant (hca 1609/2016): HK SHAOJI TRADE CO. LTD; 2nd Defendant (hca 1609/2016); Defendant (hca 1744/2016): TOO HUI CLOTHING TRADE CO. LTD; Garnishee: THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED; Plaintiff (hca 1744/2016): LI HAILING (李海玲)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 October 2016
Case Number
HCA1744/2016
Procedural Posture
Enforcement of Judgment / Garnishee Proceedings / Return Date Application to Make Garnishee Order Nisi Absolute (hearing of 28 September 2016)
Outcome
1609 Order Nisi made absolute; 1744 Order Nisi discharged; 1744P ordered to pay 1609P’s costs of 28 September 2016, to be taxed if not agreed.
Legal Topics
Garnishee Order, Charging Order, Winding Up, Priority Between Creditors, Costs
Source Language
EN
Civil Procedure Enforcement of Judgment Garnishment Company Law Injunctions Garnishee Order Charging Order Winding Up +2 more

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Parties

SNEE ENTREPRISE

Plaintiff (hca 1609/2016)

HK SHAOJI TRADE CO. LTD

1st Defendant (hca 1609/2016)

TOO HUI CLOTHING TRADE CO. LTD

2nd Defendant (hca 1609/2016); Defendant (hca 1744/2016)

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED

Garnishee

LI HAILING (李海玲)

Plaintiff (hca 1744/2016)

Procedural Posture

Enforcement of Judgment / Garnishee Proceedings / Return Date Application to Make Garnishee Order Nisi Absolute (hearing of 28 September 2016)

Legal Issues

  1. 1 Whether the earlier garnishee order nisi should be made absolute
  2. 2 Whether the later judgment creditor's intention to present a winding up petition (expressed by affidavit) is sufficient to prevent making an earlier garnishee order absolute
  3. 3 Whether hearsay assertions and contingent intentions suffice to displace priority based on being first in time

Ratio Decidendi

1609P was first in time at all relevant steps and no winding up petition had been presented by 1744P; a hearsay affidavit of contingent intention to commence winding up ‘if necessary’ and unsupported belief of insolvency were insufficient to displace the first garnishee order nisi. Therefore the court exercised its discretion to make the 1609 Order Nisi absolute, discharge the 1744 Order Nisi, and order costs against 1744P.

Court Disposition

1609 Order Nisi made absolute; 1744 Order Nisi discharged; 1744P ordered to pay 1609P’s costs of 28 September 2016, to be taxed if not agreed.

Orders

  • 1609 Order Nisi made absolute
  • 1744 Order Nisi discharged