SECRETARY FOR JUSTICE v. SANRITA WONG KWOK MEI

SECRETARY FOR JUSTICE v. SANRITA WONG KWOK MEI

The appeal was dismissed because once a bankruptcy order is made the creditor's personal enforcement rights cease (s12(1) BO), the attendance requirement in the bankruptcy order is merely a statutory notice (r72A(3)) not an order enforceable under s21B, and permitting a prohibition order in these circumstances would improperly allow a creditor to bypass the trustee and upset the bankruptcy regime; accordingly s21B cannot be used to compel attendance at the Official Receiver's office by the judgment creditor.

Citation
SECRETARY FOR JUSTICE v. SANRITA WONG KWOK MEI
Parties
Plaintiff (judgment Creditor): Secretary for Justice; Defendant (judgment Debtor): Sanrita Wong Kwok Mei; Trustee in Bankruptcy / Interested Party: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 August 2014
Case Number
HCMP3114/2000
Procedural Posture
Miscellaneous Proceedings (appeal Against Master's Decision) / Decision on Appeal Before Deputy High Court Judge (appeal From Master Hui Refusing Ex Parte Prohibition Order)
Outcome
Appeal dismissed
Legal Topics
Prohibition Order Under S21 B, Jurisdiction to Restrain Departure, Effect of Bankruptcy Order on Enforcement Rights, Attendance on Official Receiver, Procedural Locus of Applications, Trustee Powers Vs Creditor Rights
Source Language
EN
Bankruptcy Civil Procedure Injunctions/prohibition Orders Securities Law Insolvency Prohibition Order Under S21 B Jurisdiction to Restrain Departure Effect of Bankruptcy Order on Enforcement Rights +3 more

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Parties

Secretary for Justice

Plaintiff (judgment Creditor)

Sanrita Wong Kwok Mei

Defendant (judgment Debtor)

Official Receiver

Trustee in Bankruptcy / Interested Party

Procedural Posture

Miscellaneous Proceedings (appeal Against Master's Decision) / Decision on Appeal Before Deputy High Court Judge (appeal From Master Hui Refusing Ex Parte Prohibition Order)

Legal Issues

  1. 1 Whether a prohibition order under s21B High Court Ordinance can be made against an undischarged bankrupt to secure attendance at the Official Receiver
  2. 2 Whether the attendance notice in a bankruptcy order is an enforceable court order capable of being the basis for a s21B prohibition order
  3. 3 Whether a judgment creditor (and petitioner) retains enforcement rights after a bankruptcy order or must proceed through the trustee

Ratio Decidendi

The appeal was dismissed because once a bankruptcy order is made the creditor's personal enforcement rights cease (s12(1) BO), the attendance requirement in the bankruptcy order is merely a statutory notice (r72A(3)) not an order enforceable under s21B, and permitting a prohibition order in these circumstances would improperly allow a creditor to bypass the trustee and upset the bankruptcy regime; accordingly s21B cannot be used to compel attendance at the Official Receiver's office by the judgment creditor.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • No prohibition order granted under s21B of the High Court Ordinance