PALLISER INVESTMENTS LTD v. MAN CHI CHUEN

PALLISER INVESTMENTS LTD v. MAN CHI CHUEN

The court held that the deeming provision in s6A cannot be used where execution was not levied before presentation; inability must be demonstrated as of the presentation date under s6(2), therefore a post-petition unsatisfied execution cannot supply the required fact and the proposed amendment was immaterial and refused.

Citation
PALLISER INVESTMENTS LTD v. MAN CHI CHUEN
Parties
Petitioner: Palliser Investments Limited; Debtor: Man Chi Chuen (also known as Man Chi Chuen Denver)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 October 2005
Case Number
HCB3633/2005
Procedural Posture
Bankruptcy / Decision on Application to Amend Petition
Outcome
Application to amend dismissed.
Legal Topics
Statutory Demand, Service of Process, Execution of Judgment (fi Fa), Amendment of Petition, Inability to Pay, Interpreting S6(2) and S6 a of the Bankruptcy Ordinance
Source Language
EN
Bankruptcy Law Civil Procedure Statutory Demand Service of Process Execution of Judgment (fi Fa) Amendment of Petition Inability to Pay Interpreting S6(2) and S6 a of the Bankruptcy Ordinance

Case Brief

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Parties

Palliser Investments Limited

Petitioner

Man Chi Chuen (also known as Man Chi Chuen Denver)

Debtor

Procedural Posture

Bankruptcy / Decision on Application to Amend Petition

Legal Issues

  1. 1 Whether post-petition execution returned unsatisfied can be relied on to show the debtor was unable to pay at the time the petition was presented under s6(2) read with s6A(1)(b)
  2. 2 Whether the petition should be amended to refer to execution returned unsatisfied after presentation
  3. 3 Whether the statutory demand was properly served

Ratio Decidendi

The court held that the deeming provision in s6A cannot be used where execution was not levied before presentation; inability must be demonstrated as of the presentation date under s6(2), therefore a post-petition unsatisfied execution cannot supply the required fact and the proposed amendment was immaterial and refused.

Court Disposition

Application to amend dismissed.

Orders

  • Application to amend the petition is dismissed.
  • Costs of the unsuccessful application to amend to be paid by the Petitioner to the Debtor.