DCKD AND ANOTHER v. JPWL

DCKD AND ANOTHER v. JPWL

The 1st statutory demand was set aside because it improperly demanded multiple discrete debts while the creditor had accepted she could not rely on the primary listed debt and had not withdrawn and reissued a demand limited to indisputable debts; applicants failed to prove a bona fide dispute on substantial grounds in relation to the 2nd, 3rd and 5th investment debts (oral extension agreement not established) and failed to show duress, undue influence or lack of consideration in relation to the Loan Agreement signed by A2, therefore the application was dismissed insofar as it concerned the 2nd statutory demand and the respondent was authorized to present a bankruptcy petition against A2...

Citation
[2022] HKCFI 1059
Parties
1st Applicant: DCKD; 2nd Applicant: PSL; Respondent: JPWL
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 April 2022
Case Number
HCSD33/2021
Procedural Posture
Application to Set Aside Statutory Demands (bankruptcy Procedure) / Decision at First Instance (chambers)
Outcome
1st statutory demand set aside; application dismissed insofar as it concerns the 2nd statutory demand; respondent authorized to present bankruptcy petition against A2 after 14 days; costs order nisi that there be no order as to costs
Legal Topics
Statutory Demand, Set Aside, Bona Fide Dispute, Arbitration Clause, Oral Agreement, Duress, Undue Influence, Guarantee, Costs
Source Language
EN
Insolvency Bankruptcy Civil Procedure Arbitration Contract Law Statutory Demand Set Aside Bona Fide Dispute +6 more

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Parties

DCKD

1st Applicant

PSL

2nd Applicant

JPWL

Respondent

Procedural Posture

Application to Set Aside Statutory Demands (bankruptcy Procedure) / Decision at First Instance (chambers)

Legal Issues

  1. 1 Whether the 1st statutory demand was defective because it included a debt the creditor no longer relied upon
  2. 2 Whether the applicants established a bona fide dispute on substantial grounds in relation to the 2nd, 3rd and 5th debts arising from investment agreements
  3. 3 Whether an arbitration clause and steps taken to commence arbitration barred reliance on the statutory demand

Ratio Decidendi

The 1st statutory demand was set aside because it improperly demanded multiple discrete debts while the creditor had accepted she could not rely on the primary listed debt and had not withdrawn and reissued a demand limited to indisputable debts; applicants failed to prove a bona fide dispute on substantial grounds in relation to the 2nd, 3rd and 5th investment debts (oral extension agreement not established) and failed to show duress, undue influence or lack of consideration in relation to the Loan Agreement signed by A2, therefore the application was dismissed insofar as it concerned the 2nd statutory demand and the respondent was authorized to present a bankruptcy petition against A2...

Court Disposition

1st statutory demand set aside; application dismissed insofar as it concerns the 2nd statutory demand; respondent authorized to present bankruptcy petition against A2 after 14 days; costs order nisi that there be no order as to costs

Orders

  • Set aside the 1st statutory demand served on A1 dated 14 July 2021
  • Dismiss the Application insofar as it concerns the 2nd statutory demand dated 14 July 2021 served on A2