RE FOO WAI LOK

RE FOO WAI LOK

Clause 5.03 of the tenancy agreement mandatorily reduced the defined Deposit by the amount of rent arrears and loss or damage upon those sums falling into arrear, effecting automatic set-off such that no debt remained owing by the debtor as at the date of the statutory demand or the petition; accordingly the bankruptcy petition was dismissed.

Citation
[2020] HKCFI 258
Parties
Petitioner / Creditor / Landlord: NEW CASTLE INVESTMENTS LIMITED (新港投資有限公司); Debtor / Guarantor: FOO WAI LOK (符偉樂)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 January 2020
Case Number
HCB6077/2018
Procedural Posture
Bankruptcy Petition / Substantive Hearing and Judgment (petition Dismissed)
Outcome
Petition dismissed.
Legal Topics
Statutory Demand, Set Off, Security Deposit, Mesne Profits, Default Judgment, Liquidated Debt, Bankruptcy Petition, Costs
Source Language
EN
Bankruptcy Insolvency Contract Landlord and Tenant Civil Procedure Statutory Demand Set Off Security Deposit +5 more

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Parties

NEW CASTLE INVESTMENTS LIMITED (新港投資有限公司)

Petitioner / Creditor / Landlord

FOO WAI LOK (符偉樂)

Debtor / Guarantor

Procedural Posture

Bankruptcy Petition / Substantive Hearing and Judgment (petition Dismissed)

Legal Issues

  1. 1 Whether the deposit was mandatorily applied to extinguish the debt as at the date of the statutory demand or petition (debt due issue)
  2. 2 Whether the amount claimed was a liquidated sum (liquidated sum issue)
  3. 3 Whether the petition and statutory demand referred to identical debts and whether any discrepancy rendered the petition defective (identical debt issue)

Ratio Decidendi

Clause 5.03 of the tenancy agreement mandatorily reduced the defined Deposit by the amount of rent arrears and loss or damage upon those sums falling into arrear, effecting automatic set-off such that no debt remained owing by the debtor as at the date of the statutory demand or the petition; accordingly the bankruptcy petition was dismissed.

Court Disposition

Petition dismissed.

Orders

  • Costs awarded to the Debtor on a nisi basis to be summarily assessed on the papers without a hearing
  • Debtor to file and serve statement of costs by 12 February 2020