RE: KIM YOUNG SOON and EX PARTE: AAGAM EXPORTS (trading as a partnership) A Creditor

RE: KIM YOUNG SOON and EX PARTE: AAGAM EXPORTS (trading as a partnership) A Creditor

The petition is dismissed because there is a genuine and substantial dispute of fact as to whether the debtor was the principal or an agent for a third party and resolving that dispute requires oral evidence and credibility findings; absent very special circumstances the insolvency court should not try such disputed debts and no special circumstances existed here.

Citation
RE: KIM YOUNG SOON and EX PARTE: AAGAM EXPORTS (trading as a partnership) A Creditor
Parties
Petitioner (creditor): AAGAM EXPORTS (trading as a partnership); Debtor: Kim Young Soon (Madam Kim)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 April 2000
Case Number
HCB1620/1999
Procedural Posture
Bankruptcy / Hearing of Creditor's Petition (decision)
Outcome
Petition dismissed
Legal Topics
Statutory Demand, Disputed Debt, Service of Process, Agency, Abuse of Process, Costs, Creditor's Petition
Source Language
EN
Bankruptcy Insolvency Civil Procedure Statutory Demand Disputed Debt Service of Process Agency Abuse of Process +2 more

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Parties

AAGAM EXPORTS (trading as a partnership)

Petitioner (creditor)

Kim Young Soon (Madam Kim)

Debtor

Procedural Posture

Bankruptcy / Hearing of Creditor's Petition (decision)

Legal Issues

  1. 1 Whether the debt of US$440,374.54 is payable by the debtor Madam Kim or by a third party (agency issue)
  2. 2 Whether an insolvency court should try a genuine and substantial disputed debt on a creditor's petition or dismiss the petition and leave the dispute to ordinary proceedings
  3. 3 Whether the statutory demand was properly served

Ratio Decidendi

The petition is dismissed because there is a genuine and substantial dispute of fact as to whether the debtor was the principal or an agent for a third party and resolving that dispute requires oral evidence and credibility findings; absent very special circumstances the insolvency court should not try such disputed debts and no special circumstances existed here.

Court Disposition

Petition dismissed

Orders

  • Petition dismissed with costs to the debtor Madam Kim Young Soon
  • Madam Kim's own costs to be taxed in accordance with the Legal Aid Regulations