RE FOOK HAU TRADING CO

RE FOOK HAU TRADING CO

On proper construction of the Bankruptcy Ordinance and Rules, service of a statutory demand on a firm comprising several partners does not suffice if effected on only some partners; there is no rule deeming service on one or more partners to be service on the firm. The petitioner also failed to do all that was reasonable to bring the demand to TMK's attention (no attempts to serve him in the Mainland and premature presentation of the petition), so service on TMK was not properly effected; accordingly the petition was dismissed.

Citation
RE FOOK HAU TRADING CO
Parties
Creditor: RPORATION LIMITD; Debtor/respondent: Fook Hau Trading Company; Partner/respondent: Tsang Moon Kau (TMK); Partner/respondent: Tsang Poa Kau; Partner/respondent: Chang Hoi Kau; Partner/respondent: Chang In Seong
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 January 2008
Case Number
HCB7100/2006
Procedural Posture
Bankruptcy Petition / Judgment on Service Issues
Outcome
petition dismissed
Legal Topics
Service of Statutory Demand, Service on Partnership, Personal Service Vs Substituted Service, Presentation of Petition, Strict Compliance With Procedural Rules
Source Language
EN
Bankruptcy Partnership Law Civil Procedure Service of Statutory Demand Service on Partnership Personal Service Vs Substituted Service Presentation of Petition Strict Compliance With Procedural Rules

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Parties

RPORATION LIMITD

Creditor

Fook Hau Trading Company

Debtor/respondent

Tsang Moon Kau (TMK)

Partner/respondent

Tsang Poa Kau

Partner/respondent

Chang Hoi Kau

Partner/respondent

Chang In Seong

Partner/respondent

Procedural Posture

Bankruptcy Petition / Judgment on Service Issues

Legal Issues

  1. 1 Whether service of a statutory demand on a firm requires service on all partners or whether service on one or more partners suffices
  2. 2 Whether TMK (a partner) was properly served with the statutory demand having regard to rules requiring personal service or all reasonable steps to bring demand to debtor's attention
  3. 3 Whether advertisement and partial service on partners cured any defect and whether court should allow amendment or rely on rule 203 to excuse non-compliance

Ratio Decidendi

On proper construction of the Bankruptcy Ordinance and Rules, service of a statutory demand on a firm comprising several partners does not suffice if effected on only some partners; there is no rule deeming service on one or more partners to be service on the firm. The petitioner also failed to do all that was reasonable to bring the demand to TMK's attention (no attempts to serve him in the Mainland and premature presentation of the petition), so service on TMK was not properly effected; accordingly the petition was dismissed.

Court Disposition

petition dismissed

Orders

  • Petition dismissed
  • Order nisi that the respondents shall have the costs of the petition