MICHAEL CHEN KANG HUANG AND ANOTHER v. PETER LIT MA

MICHAEL CHEN KANG HUANG AND ANOTHER v. PETER LIT MA

Defendant failed the first hurdle by not providing a full and frank account of his finances and his evidence of a partial proprietary interest was bald and unsubstantiated; plaintiffs demonstrated a strong proprietary claim to the frozen funds and Flat F; exercising the court's discretion, release of funds or permission to withdraw HK$5,000/week would cause substantial injustice to plaintiffs, so applications to vary and to set aside the statutory demand were refused and plaintiffs' summons to prohibit withdrawals was allowed.

Citation
MICHAEL CHEN KANG HUANG AND ANOTHER v. PETER LIT MA
Parties
Applicant (judgment Debtor); Defendant in HCA 218/2005: PETER LIT MA; 1st Respondent; 1st Judgment Creditor; 1st Plaintiff in HCA 218/2005: MICHAEL CHEN KANG HUANG; 2nd Respondent; 2nd Judgment Creditor; 2nd Plaintiff in HCA 218/2005: EUROMAT WORLDWIDE LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 August 2007
Case Number
HCA218/2005
Procedural Posture
Application to Set Aside Statutory Demand; Variation of Mareva (freezing) Injunction; Underlying Civil Action for Deceit, Fraudulent Misrepresentation and Money Had and Received / Hearing and Judgment on Applications (heard 21 August 2007; Reasons Handed Down 27 August 2007)
Outcome
Application to set aside statutory demand dismissed; defendant's summons to vary Mareva order dismissed; plaintiffs' summons to remove permission for HK$5,000 weekly withdrawals allowed; costs awarded to plaintiffs to be taxed on a party and party basis.
Legal Topics
Statutory Demand, Mareva Injunction, Proprietary Claim to Frozen Funds, Setting Aside Statutory Demand, Variation of Freezing Order, Full and Frank Disclosure, Costs Assessment
Source Language
EN
Civil Procedure Bankruptcy Equity Injunctions Property Law Costs Statutory Demand Mareva Injunction +5 more

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Parties

PETER LIT MA

Applicant (judgment Debtor); Defendant in HCA 218/2005

MICHAEL CHEN KANG HUANG

1st Respondent; 1st Judgment Creditor; 1st Plaintiff in HCA 218/2005

EUROMAT WORLDWIDE LIMITED

2nd Respondent; 2nd Judgment Creditor; 2nd Plaintiff in HCA 218/2005

Procedural Posture

Application to Set Aside Statutory Demand; Variation of Mareva (freezing) Injunction; Underlying Civil Action for Deceit, Fraudulent Misrepresentation and Money Had and Received / Hearing and Judgment on Applications (heard 21 August 2007; Reasons Handed Down 27 August 2007)

Legal Issues

  1. 1 Whether the statutory demand should be set aside
  2. 2 Whether the defendant should be permitted to use frozen assets to fund legal costs or living expenses
  3. 3 Whether the defendant has given a full and frank account of his finances (first hurdle from Ostrich Farming)

Ratio Decidendi

Defendant failed the first hurdle by not providing a full and frank account of his finances and his evidence of a partial proprietary interest was bald and unsubstantiated; plaintiffs demonstrated a strong proprietary claim to the frozen funds and Flat F; exercising the court's discretion, release of funds or permission to withdraw HK$5,000/week would cause substantial injustice to plaintiffs, so applications to vary and to set aside the statutory demand were refused and plaintiffs' summons to prohibit withdrawals was allowed.

Court Disposition

Application to set aside statutory demand dismissed; defendant's summons to vary Mareva order dismissed; plaintiffs' summons to remove permission for HK$5,000 weekly withdrawals allowed; costs awarded to plaintiffs to be taxed on a party and party basis.

Orders

  • Dismissed application HCSD 9/2007 to set aside statutory demand dated 31 January 2007
  • Dismissed defendant's summons dated 12 April 2007 seeking further variation to permit sale of Flat F and release of funds