RE WONG YU CHO ROLLY

RE WONG YU CHO ROLLY

The court dismissed the application to set aside the statutory demand and made the bankruptcy petition absolute because (1) service was properly effected and acknowledged; (2) a pending appeal did not justify setting aside or adjourning the demand where no stay existed and accepted practice precludes going behind the judgment; (3) the debtor failed to establish a genuine and serious counterclaim under r48(5) as the claim had been twice rejected; and (4) the debtor had not prosecuted his appeals with due diligence, so the petition should not be adjourned.

Citation
RE WONG YU CHO ROLLY
Parties
Petitioner (hcb 7588)/plaintiff (hca 1007)/respondent (hcsd 23): Ling Dai Hong; Debtor (hcb 7588)/defendant (hca 1007)/applicant (hcsd 23): Wong Yu Cho Rolly
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 March 2013
Case Number
HCB7588/2012
Procedural Posture
Bankruptcy Petition Founded on a Judgment and an Application to Set Aside a Statutory Demand / Hearing and Judgment in the High Court, Court of First Instance
Outcome
Application to set aside statutory demand dismissed; bankruptcy petition granted and debtor declared bankrupt
Legal Topics
Statutory Demand, Setting Aside, Summary Judgment, Security for Costs, Counterclaim Under R48(5), Service of Process, Adjournment Pending Appeal, Prosecution of Appeal With Diligence
Source Language
EN
Bankruptcy Civil Procedure Debt Recovery Appeal Procedure Statutory Demand Setting Aside Summary Judgment Security for Costs +4 more

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Parties

Ling Dai Hong

Petitioner (hcb 7588)/plaintiff (hca 1007)/respondent (hcsd 23)

Wong Yu Cho Rolly

Debtor (hcb 7588)/defendant (hca 1007)/applicant (hcsd 23)

Procedural Posture

Bankruptcy Petition Founded on a Judgment and an Application to Set Aside a Statutory Demand / Hearing and Judgment in the High Court, Court of First Instance

Legal Issues

  1. 1 Whether the statutory demand was properly served
  2. 2 Whether the setting aside application should be adjourned or allowed because of a pending appeal
  3. 3 Whether the debtor has a genuine and serious counterclaim or setoff under Bankruptcy Rules r48(5)

Ratio Decidendi

The court dismissed the application to set aside the statutory demand and made the bankruptcy petition absolute because (1) service was properly effected and acknowledged; (2) a pending appeal did not justify setting aside or adjourning the demand where no stay existed and accepted practice precludes going behind the judgment; (3) the debtor failed to establish a genuine and serious counterclaim under r48(5) as the claim had been twice rejected; and (4) the debtor had not prosecuted his appeals with due diligence, so the petition should not be adjourned.

Court Disposition

Application to set aside statutory demand dismissed; bankruptcy petition granted and debtor declared bankrupt

Orders

  • Dismiss HCSD 23/2012 (application to set aside statutory demand)
  • Order nisi for costs in favour of the respondent in HCSD 23/2012