RE LEUNG TZE HANG DAVID

RE LEUNG TZE HANG DAVID

The court exercised its discretion to order cross-examination because the dispute concerned whether the debt had been paid or compounded for (a condition under ss6 and 6D), the evidential burden shifted to the debtor to prove payment/compounding, and the genuineness and bona fides of the debtor's affidavit evidence could not properly be determined without cross-examination; affidavits alone were insufficient to decide the petition.

Citation
RE LEUNG TZE HANG DAVID
Parties
Petitioner / Creditor: New Regent Finance Management Limited; Judgment Debtor / Respondent: Leung Tze Hang David; Principal Debtor: Pacific System Development Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 January 2004
Case Number
HCB18073/2002
Procedural Posture
Bankruptcy Proceedings / Chambers Hearing on Summons for Cross Examination Under Order 38 R 2(3)
Outcome
Application granted to permit cross-examination of the debtor on his affidavits
Legal Topics
Petition to Adjudicate Bankrupt, Cross Examination of Affidavits, Compromise/settlement, Oral Agreement, Onus of Proof
Source Language
EN
Bankruptcy Civil Procedure Evidence Contract Petition to Adjudicate Bankrupt Cross Examination of Affidavits Compromise/settlement Oral Agreement +1 more

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Parties

New Regent Finance Management Limited

Petitioner / Creditor

Leung Tze Hang David

Judgment Debtor / Respondent

Pacific System Development Ltd

Principal Debtor

Procedural Posture

Bankruptcy Proceedings / Chambers Hearing on Summons for Cross Examination Under Order 38 R 2(3)

Legal Issues

  1. 1 Whether the court should permit cross-examination of the debtor on affidavits under Order 38 r 2(3)
  2. 2 Whether there is a substantial and bona fide dispute sufficient to dismiss the petition without cross-examination
  3. 3 Who bears the evidential burden when the debtor alleges the debt has been paid or compounded for

Ratio Decidendi

The court exercised its discretion to order cross-examination because the dispute concerned whether the debt had been paid or compounded for (a condition under ss6 and 6D), the evidential burden shifted to the debtor to prove payment/compounding, and the genuineness and bona fides of the debtor's affidavit evidence could not properly be determined without cross-examination; affidavits alone were insufficient to decide the petition.

Court Disposition

Application granted to permit cross-examination of the debtor on his affidavits

Orders

  • Debtor to attend for cross-examination on his 1st and 2nd affidavits filed 28 March 2003 and 31 March 2003; failing which those affidavits shall not be used as evidence in these proceedings
  • Costs awarded to the petitioner, New Regent Finance Management Limited