RE MAK KAM LING

RE MAK KAM LING

The stay under section 9(5) was removed and the petitions dismissed because there was a material change of circumstances (no realistic prospect of criminal prosecution and substantial, unexplained delay in commencing and prosecuting the civil proceedings) causing prejudice to the debtors; the security paid into court covered the alleged indebtedness and the disputes as to liability should be resolved by the civil court, not by continuing to secure relief by way of a stay in the bankruptcy forum.

Citation
RE MAK KAM LING
Parties
Petitioner: Nelson Jewellery Arts Co. Ltd; Debtor: Mak Kam Ling; Debtor: Mak Kam Mun
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 July 2004
Case Number
HCB8606/2001
Procedural Posture
Bankruptcy Proceedings (two Petitions) / Judgment on Applications to Remove Stay of Proceedings and to Dismiss Petitions
Outcome
Stay removed; petitions dismissed
Legal Topics
Section 9(5) Bankruptcy Ordinance, Stay of Proceedings, Security and Payment Into Court, Statutory Demand, Dismissal of Petition, Costs Orders, Delay and Prejudice
Source Language
EN
Bankruptcy Civil Procedure Insolvency Section 9(5) Bankruptcy Ordinance Stay of Proceedings Security and Payment Into Court Statutory Demand Dismissal of Petition +2 more

Case Brief

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Parties

Nelson Jewellery Arts Co. Ltd

Petitioner

Mak Kam Ling

Debtor

Mak Kam Mun

Debtor

Procedural Posture

Bankruptcy Proceedings (two Petitions) / Judgment on Applications to Remove Stay of Proceedings and to Dismiss Petitions

Legal Issues

  1. 1 Whether the court should remove the stay imposed under section 9(5) of the Bankruptcy Ordinance
  2. 2 Whether the security (money paid into court) should be released to the debtors
  3. 3 Whether the bankruptcy petitions should be dismissed given delay, lack of criminal prosecution and prejudice to the debtors

Ratio Decidendi

The stay under section 9(5) was removed and the petitions dismissed because there was a material change of circumstances (no realistic prospect of criminal prosecution and substantial, unexplained delay in commencing and prosecuting the civil proceedings) causing prejudice to the debtors; the security paid into court covered the alleged indebtedness and the disputes as to liability should be resolved by the civil court, not by continuing to secure relief by way of a stay in the bankruptcy forum.

Court Disposition

Stay removed; petitions dismissed

Orders

  • HCB 8606/2001: Stay of proceedings removed
  • HCB 8606/2001: Sum of HK$785,860.00 paid into court by Mak Kam Ling together with all accrued interest to be forthwith paid out to her solicitors, subject to the undertaking described in the judgment