RE: LEUNG CHI WANG and EX-PARTE: CALTEX OIL HONG KONG LTD., A JUDGMENT CREDITOR

RE: LEUNG CHI WANG and EX-PARTE: CALTEX OIL HONG KONG LTD., A JUDGMENT CREDITOR

The bankruptcy orders were annulled because the petitioner failed to comply with rule 46(2) by not attempting service at an address of which it had full and actual knowledge (the new/business address), and the petitioner misled the court in affirmations by omitting material facts (the removal notice), so the court would not have granted leave to file or substituted service and the bankruptcy orders ought not to have been made.

Citation
RE: LEUNG CHI WANG and EX-PARTE: CALTEX OIL HONG KONG LTD., A JUDGMENT CREDITOR
Parties
Judgment Creditor / Petitioner: Caltex Oil Hong Kong Limited; Debtor / Applicant to Annul: Yau Chi Hang; Debtor / Applicant to Annul: Leung Chi Wang; Debtor / Applicant to Annul: Mak Tsz Lok; Official Receiver (interested Party): Official Receiver's Office
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 May 2001
Case Number
HCB4396/2000
Procedural Posture
Bankruptcy / Application to Annul Bankruptcy Orders (post Bankruptcy Order Hearing)
Outcome
Bankruptcy orders against Yau Chi Hang, Leung Chi Wang and Mak Tsz Lok annulled
Legal Topics
Service of Statutory Demand, Substituted Service, Annulment of Bankruptcy Order, Proof of Service, Misleading Affidavits
Source Language
EN
Bankruptcy Civil Procedure Insolvency Law Service of Statutory Demand Substituted Service Annulment of Bankruptcy Order Proof of Service Misleading Affidavits

Case Brief

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Parties

Caltex Oil Hong Kong Limited

Judgment Creditor / Petitioner

Yau Chi Hang

Debtor / Applicant to Annul

Leung Chi Wang

Debtor / Applicant to Annul

Mak Tsz Lok

Debtor / Applicant to Annul

Official Receiver's Office

Official Receiver (interested Party)

Procedural Posture

Bankruptcy / Application to Annul Bankruptcy Orders (post Bankruptcy Order Hearing)

Legal Issues

  1. 1 Whether the statutory demand and bankruptcy petition were properly served in compliance with rule 46(2) of the Bankruptcy Rules
  2. 2 Whether substituted service and leave to file the petition should have been granted under rule 49(9) given the material facts
  3. 3 Whether the petitioner misled the court by omitting to disclose the debtor's known new address, thereby vitiating the grant of the bankruptcy order

Ratio Decidendi

The bankruptcy orders were annulled because the petitioner failed to comply with rule 46(2) by not attempting service at an address of which it had full and actual knowledge (the new/business address), and the petitioner misled the court in affirmations by omitting material facts (the removal notice), so the court would not have granted leave to file or substituted service and the bankruptcy orders ought not to have been made.

Court Disposition

Bankruptcy orders against Yau Chi Hang, Leung Chi Wang and Mak Tsz Lok annulled

Orders

  • Bankruptcy orders made on 21 March 2001 against Yau Chi Hang, Leung Chi Wang and Mak Tsz Lok are annulled
  • Order nisi that Caltex Oil Hong Kong Limited pay the costs of these bankruptcy proceedings and of the annulment applications, including the costs of the Official Receiver, with a Certificate for Counsel