RE NG CHI WO

RE NG CHI WO

The court held that although the petitioner satisfied the requirements for service of the statutory demand and substituted service of the petition, the Default Judgment was irregular because the writ had been served by letterbox at an address where the Bankrupt never resided and therefore could not have had notice; that irregularity destroyed the foundation of the bankruptcy petition and entitled the court to annul the bankruptcy order under section 33 without regard to the merits of the original defence.

Citation
RE NG CHI WO
Parties
Petitioner; Judgment Creditor: AIGUN EXPORT LTD; Bankrupt; Respondent: NG CHI WO; Official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 July 2004
Case Number
HCB2819/2003
Procedural Posture
Bankruptcy (annulment) / Hearing on Section 33 Annulment Application Following Bankruptcy Order Made by Master
Outcome
Bankruptcy order annulled; statutory demand and petition set aside
Legal Topics
Statutory Demand, Service of Process, Substituted Service, Default Judgment, Annulment of Bankruptcy Order, Irregular Service
Source Language
EN
Bankruptcy Civil Procedure Commercial Law Statutory Demand Service of Process Substituted Service Default Judgment Annulment of Bankruptcy Order +1 more

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Parties

AIGUN EXPORT LTD

Petitioner; Judgment Creditor

NG CHI WO

Bankrupt; Respondent

Official Receiver

Official Receiver

Procedural Posture

Bankruptcy (annulment) / Hearing on Section 33 Annulment Application Following Bankruptcy Order Made by Master

Legal Issues

  1. 1 Whether service of the statutory demand and petition was proper and complied with Rule 46(2) of the Bankruptcy Rules
  2. 2 Whether the default judgment was irregularly obtained by defective service (insertion through letterbox) and thus liable to be set aside
  3. 3 Whether the bankruptcy order should be annulled under section 33 given the alleged irregularity of the judgment debt underpinning the petition

Ratio Decidendi

The court held that although the petitioner satisfied the requirements for service of the statutory demand and substituted service of the petition, the Default Judgment was irregular because the writ had been served by letterbox at an address where the Bankrupt never resided and therefore could not have had notice; that irregularity destroyed the foundation of the bankruptcy petition and entitled the court to annul the bankruptcy order under section 33 without regard to the merits of the original defence.

Court Disposition

Bankruptcy order annulled; statutory demand and petition set aside

Orders

  • The bankruptcy order dated 9 April 2003 be annulled.
  • The statutory demand and the petition be set aside.