RE TO CHO PING

RE TO CHO PING

The Bankruptcy Order was annulled because the creditor failed to show it had taken reasonable steps to bring the statutory demand to the debtor's attention (notably it failed to make reasonable enquiries of the husband who was known to the Bank), and the debtor demonstrated an arguable defence to the underlying claim (question over understanding of an all‑monies mortgage/possible undue influence) together with an unexplained multi‑year gap before the statutory demand, justifying exercise of the court's discretion to annul under s33.

Citation
RE TO CHO PING
Parties
Judgment Debtor: To Cho Ping; Judgment Creditor: Bank of China (Hong Kong) Limited; Official Receiver: The Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 November 2011
Case Number
HCB5744/2010
Procedural Posture
Bankruptcy / Application to Annul Bankruptcy Order Under S33
Outcome
Bankruptcy Order annulled
Legal Topics
Service of Statutory Demand, Substituted Service, Annulment of Bankruptcy Order, All Monies Mortgage, Undue Influence, Delay in Issuing Statutory Demand and Interest
Source Language
EN
Bankruptcy Civil Procedure Property Law Equity Service of Statutory Demand Substituted Service Annulment of Bankruptcy Order All Monies Mortgage +2 more

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Parties

To Cho Ping

Judgment Debtor

Bank of China (Hong Kong) Limited

Judgment Creditor

The Official Receiver

Official Receiver

Procedural Posture

Bankruptcy / Application to Annul Bankruptcy Order Under S33

Legal Issues

  1. 1 Whether the statutory demand was properly served or substituted service was justified
  2. 2 Whether the debtor has an arguable defence to the underlying debt (allegations of undue influence / lack of understanding of all‑monies mortgage)
  3. 3 Whether the court should exercise its discretion to annul the bankruptcy order given the interests of creditor, debtor and public

Ratio Decidendi

The Bankruptcy Order was annulled because the creditor failed to show it had taken reasonable steps to bring the statutory demand to the debtor's attention (notably it failed to make reasonable enquiries of the husband who was known to the Bank), and the debtor demonstrated an arguable defence to the underlying claim (question over understanding of an all‑monies mortgage/possible undue influence) together with an unexplained multi‑year gap before the statutory demand, justifying exercise of the court's discretion to annul under s33.

Court Disposition

Bankruptcy Order annulled

Orders

  • Bankruptcy Order annulled
  • Costs to follow the event (Bank to pay costs)