WAH TAT FOUNDATION & ENGINEERING LTD v. YIP SHIU CHING

WAH TAT FOUNDATION & ENGINEERING LTD v. YIP SHIU CHING

The default judgment was regular and properly served; applicants failed to demonstrate a monetary cross-demand or cogent evidence that the judgment was procured by fraud or obtained in circumstances justifying going behind the judgment; leave under Order 81 rule 5 was not required for a statutory demand based on the judgment and section 6A(1)(a) applied; therefore the statutory demands should not be set aside and the applications are dismissed.

Citation
WAH TAT FOUNDATION & ENGINEERING LTD v. YIP SHIU CHING
Parties
Creditor: Wah Tat Foundation & Engineering Limited; Debtor: Kam Kin Bun; Debtor: Yip Shiu Ching
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 May 2003
Case Number
HCSD6/2003
Procedural Posture
Statutory Demand Application / Judgment on Application to Set Aside Statutory Demands
Outcome
Applications dismissed
Legal Topics
Statutory Demand, Set Aside, Bankruptcy Petition, Winding Up Petition, Default Judgment, Service of Process, Leave to Issue Execution, Costs
Source Language
EN
Insolvency Bankruptcy Company Law Civil Procedure Statutory Demand Set Aside Bankruptcy Petition Winding Up Petition +4 more

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Parties

Wah Tat Foundation & Engineering Limited

Creditor

Kam Kin Bun

Debtor

Yip Shiu Ching

Debtor

Procedural Posture

Statutory Demand Application / Judgment on Application to Set Aside Statutory Demands

Legal Issues

  1. 1 Whether debtors had a monetary counterclaim/set off/cross-demand under Rule 48(5)(a)
  2. 2 Whether the debt was disputed on substantial grounds under Rule 48(5)(b)
  3. 3 Whether residual discretion under Rule 48(5)(d) to set aside a demand was engaged

Ratio Decidendi

The default judgment was regular and properly served; applicants failed to demonstrate a monetary cross-demand or cogent evidence that the judgment was procured by fraud or obtained in circumstances justifying going behind the judgment; leave under Order 81 rule 5 was not required for a statutory demand based on the judgment and section 6A(1)(a) applied; therefore the statutory demands should not be set aside and the applications are dismissed.

Court Disposition

Applications dismissed

Orders

  • Applications to set aside statutory demands dismissed
  • Costs to be paid by Kam Kin Bun and Yip Shiu Ching forthwith and to be taxed if not agreed