RE LEE MING CHEUNG

RE LEE MING CHEUNG

The summons to stay the bankruptcy petition was dismissed because the applicant failed to show the appeal was arguable: contemporaneous evidence of telephone calls, appointment attempts, advertisement and posting established reasonable steps and notice of the statutory demand so the service ground was not arguable; and the petitioning debt was admitted by the applicant and was a sum ascertainable by reference to market data, therefore a liquidated claim capable of founding a statutory demand, so the liquidated-sum ground was not arguable. Absent an arguable appeal there was no basis to exercise discretion to stay the petition.

Citation
[2020] HKCFI 297
Parties
Petitioner: Mok Ka Po; Debtor: Lee Ming Cheung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 March 2020
Case Number
HCB607/2019
Procedural Posture
Bankruptcy / Application for Stay/adjournment of Bankruptcy Petition Pending Appeal (summons Dated 8 November 2019)
Outcome
Summons dismissed; no stay of the bankruptcy petition granted
Legal Topics
Statutory Demand, Service of Process, Liquidated Debt, Stay Pending Appeal, Breach of Trust, Jurisdiction Under Bankruptcy Ordinance S.104
Source Language
EN
Bankruptcy Civil Procedure Trusts and Fiduciary Law Statutory Demand Service of Process Liquidated Debt Stay Pending Appeal Breach of Trust +1 more

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Parties

Mok Ka Po

Petitioner

Lee Ming Cheung

Debtor

Procedural Posture

Bankruptcy / Application for Stay/adjournment of Bankruptcy Petition Pending Appeal (summons Dated 8 November 2019)

Legal Issues

  1. 1 Whether the court should stay or adjourn the bankruptcy petition pending appeal
  2. 2 Whether the statutory demand was properly served in accordance with rule 46(2) of the Bankruptcy Rules
  3. 3 Whether the petitioning claim is a liquidated sum capable of founding a statutory demand or a trust claim requiring an account

Ratio Decidendi

The summons to stay the bankruptcy petition was dismissed because the applicant failed to show the appeal was arguable: contemporaneous evidence of telephone calls, appointment attempts, advertisement and posting established reasonable steps and notice of the statutory demand so the service ground was not arguable; and the petitioning debt was admitted by the applicant and was a sum ascertainable by reference to market data, therefore a liquidated claim capable of founding a statutory demand, so the liquidated-sum ground was not arguable. Absent an arguable appeal there was no basis to exercise discretion to stay the petition.

Court Disposition

Summons dismissed; no stay of the bankruptcy petition granted

Orders

  • Summons dismissed
  • Costs awarded to the respondent to be taxed if not agreed