CHAN WS AND ANOTHER v. CC BANK

CHAN WS AND ANOTHER v. CC BANK

The statutory demands were set aside because the debt as stated in the demands was significantly overstated and the creditor failed to correct the mistake, producing a substantial and bona fide dispute about the amount; alleged oral promise did not establish waiver or estoppel (contradicted by written terms requiring waiver in writing and by contemporaneous documents) and the mortgage was not security for the applicants for rule 48(5)(c) purposes (third‑party mortgagor and no surplus after prior sale). The interlocutory summons to strike out was dismissed as misconceived and unnecessary.

Citation
[2021] HKCFI 143
Parties
Applicant / Debtor: Chan WS; Applicant / Debtor: Chan CNP; Respondent / Creditor: CC Bank
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 January 2021
Case Number
HCSD22/2018
Procedural Posture
Application to Set Aside Statutory Demands Under the Bankruptcy Rules / Decision on Application
Outcome
Application to set aside the statutory demands allowed; summons to strike out dismissed.
Legal Topics
Statutory Demand, Guarantee, Mortgage, Waiver, Promissory Estoppel, Overstatement of Debt, Costs, Wasted Costs
Source Language
EN
Bankruptcy Contract Civil Procedure Property (security) Statutory Demand Guarantee Mortgage Waiver +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 12 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Chan WS

Applicant / Debtor

Chan CNP

Applicant / Debtor

CC Bank

Respondent / Creditor

Procedural Posture

Application to Set Aside Statutory Demands Under the Bankruptcy Rules / Decision on Application

Legal Issues

  1. 1 Whether the statutory demands should be set aside under rule 48(5) of the Bankruptcy Rules
  2. 2 Whether an alleged oral promise amounted to waiver or promissory estoppel preventing demand or enforcement
  3. 3 Whether the mortgage constituted security for the purposes of rule 48(5)(c)

Ratio Decidendi

The statutory demands were set aside because the debt as stated in the demands was significantly overstated and the creditor failed to correct the mistake, producing a substantial and bona fide dispute about the amount; alleged oral promise did not establish waiver or estoppel (contradicted by written terms requiring waiver in writing and by contemporaneous documents) and the mortgage was not security for the applicants for rule 48(5)(c) purposes (third‑party mortgagor and no surplus after prior sale). The interlocutory summons to strike out was dismissed as misconceived and unnecessary.

Court Disposition

Application to set aside the statutory demands allowed; summons to strike out dismissed.

Orders

  • Statutory demands dated 15 June 2018 are set aside.
  • Summons dated 4 January 2019 to strike out parts of the application is dismissed.