RE MICHAEL MA WING

RE MICHAEL MA WING

The court held that although service of the petition was defective, the Rules of the Supreme Court are incorporated into the bankruptcy legislation via s99(1) and grant the court a discretion to treat failures as irregularities; the applicant's deliberate departure with intent to defeat creditors, long delay, evasion of the Official Receiver and failure to take steps or give explanation amounted to waiver of any defect and justified refusal to rescind the receiving order; accordingly the motion was refused and costs awarded to the petitioner and the Official Receiver.

Citation
RE MICHAEL MA WING
Parties
Applicant (debtor): MICHAEL MA WING also known as MICHAEL MA; Petitioner (creditor): FONG SZE MING also known as FONG MING; Respondent (official Receiver): Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 June 1997
Case Number
HCB181/1985
Procedural Posture
Bankruptcy / Motion to Rescind Receiving Order / Hearing on Rescission of Receiving Order and Annulment of Adjudication
Outcome
Motion refused; receiving order and adjudication not rescinded
Legal Topics
Service of Process, Acts of Bankruptcy, Rescission of Receiving Order, Nullity Vs Irregularity, Waiver by Conduct, Incorporation of Court Rules
Source Language
EN
Bankruptcy Civil Procedure Service of Process Acts of Bankruptcy Rescission of Receiving Order Nullity Vs Irregularity Waiver by Conduct Incorporation of Court Rules

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 11 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

MICHAEL MA WING also known as MICHAEL MA

Applicant (debtor)

FONG SZE MING also known as FONG MING

Petitioner (creditor)

Official Receiver

Respondent (official Receiver)

Procedural Posture

Bankruptcy / Motion to Rescind Receiving Order / Hearing on Rescission of Receiving Order and Annulment of Adjudication

Legal Issues

  1. 1 Whether service of the bankruptcy petition was effective and if not whether the defect was a nullity or an irregularity
  2. 2 Whether the applicant's departure from his dwelling constituted an act of bankruptcy
  3. 3 Whether Rules of the Supreme Court (O.2) are incorporated into bankruptcy proceedings via s99(1) and whether they allow curing of service defects

Ratio Decidendi

The court held that although service of the petition was defective, the Rules of the Supreme Court are incorporated into the bankruptcy legislation via s99(1) and grant the court a discretion to treat failures as irregularities; the applicant's deliberate departure with intent to defeat creditors, long delay, evasion of the Official Receiver and failure to take steps or give explanation amounted to waiver of any defect and justified refusal to rescind the receiving order; accordingly the motion was refused and costs awarded to the petitioner and the Official Receiver.

Court Disposition

Motion refused; receiving order and adjudication not rescinded

Orders

  • Motion to rescind receiving order refused
  • Receiving order and order of adjudication upheld