Re GABRIEL RICARDO DIAS-AZEDO

Re GABRIEL RICARDO DIAS-AZEDO

The Funding Creditors' legal proceedings obtained without notice preserved assets for the benefit of the bankrupt's creditors within the meaning of s37(2); accordingly the court exercised its discretion to permit the Trustees to pay the Funding Creditors' legal costs incurred up to 23 March 2010 with the same priority as the petitioner's taxed costs, subject to party-and-party taxation and scrutiny by the Trustees.

Citation
Re GABRIEL RICARDO DIAS-AZEDO
Parties
Petitioner / Creditor: Angela Rita Gardner; Funding Creditors: Mr and Mrs Arthur Antonio Da Silva; Trustees of the Bankrupt's Estate: Joint and Several Trustees; Bankrupt: Gabriel Ricardo Dias-Azedo
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 October 2013
Case Number
HCB2212/2010
Procedural Posture
Bankruptcy Proceedings / Hearing on Summons Under Section 37(2) and Section 97 for Priority of Creditor Incurred Legal Costs
Outcome
Application granted in part: Trustees permitted to pay Funding Creditors' legal costs incurred up to 23 March 2010 with same priority as taxed costs of the petition, subject to party-and-party taxation and agreement; liberty to apply; petitioner ordered to pay Funding Creditors' costs nisi; Trustees' costs payable...
Legal Topics
Priority of Costs, Section 37(2) Bankruptcy Ordinance, Section 97 Bankruptcy Ordinance, Funding Agreements, Mareva Injunctions and Freezing Orders, Taxation of Costs
Source Language
EN
Bankruptcy Law Insolvency Civil Procedure Costs Law Priority of Costs Section 37(2) Bankruptcy Ordinance Section 97 Bankruptcy Ordinance Funding Agreements +2 more

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Parties

Angela Rita Gardner

Petitioner / Creditor

Mr and Mrs Arthur Antonio Da Silva

Funding Creditors

Joint and Several Trustees

Trustees of the Bankrupt's Estate

Gabriel Ricardo Dias-Azedo

Bankrupt

Procedural Posture

Bankruptcy Proceedings / Hearing on Summons Under Section 37(2) and Section 97 for Priority of Creditor Incurred Legal Costs

Legal Issues

  1. 1 Whether legal proceedings brought by the Funding Creditors without notice preserved the bankrupt's property such that their costs can be paid with the same priority as the petitioner's taxed costs under s37(2)
  2. 2 Whether section 97 permits creation of a new priority where none exists under the Ordinance
  3. 3 Whether irregularity of the Funding Creditors' default judgment defeats an application under s37(2)

Ratio Decidendi

The Funding Creditors' legal proceedings obtained without notice preserved assets for the benefit of the bankrupt's creditors within the meaning of s37(2); accordingly the court exercised its discretion to permit the Trustees to pay the Funding Creditors' legal costs incurred up to 23 March 2010 with the same priority as the petitioner's taxed costs, subject to party-and-party taxation and scrutiny by the Trustees.

Court Disposition

Application granted in part: Trustees permitted to pay Funding Creditors' legal costs incurred up to 23 March 2010 with same priority as taxed costs of the petition, subject to party-and-party taxation and agreement; liberty to apply; petitioner ordered to pay Funding Creditors' costs nisi; Trustees' costs payable...

Orders

  • Trustees permitted to pay Funding Creditors from the bankrupt's estate, with same priority as the petitioner's taxed costs, the Funding Creditors' legal costs incurred in Hong Kong and the United Kingdom in preserving the bankrupt's property up to 23 March 2010, such costs to be referred to a taxing master for...
  • Liberty to apply