RE YIP KIM PO

RE YIP KIM PO

Debtor was precluded by the prior determination on the application to set aside the statutory demand (issue estoppel/res judicata and Turner public policy) from raising the limitation defence at the petition hearing; accordingly the debtor's stay summons was dismissed and the petition proceeded, and the court held that in the bankruptcy context the term "action" under s.4(1)(a) of the Limitation Ordinance is sufficiently broad to encompass the two‑stage statutory demand/petition process.

Citation
[2022] HKCFI 1912
Parties
Petitioner: AIG Insurance Hong Kong Limited; Debtor: Yip Kim Po
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 June 2022
Case Number
HCB4531/2021
Procedural Posture
Bankruptcy Petition / Hearing on Stay Summons and Judgment on Petition Following Application to Set Aside Statutory Demand and Appeal
Outcome
Debtor's summons dismissed; usual bankruptcy order made against the Debtor.
Legal Topics
Statutory Demand, Limitation Period, Issue Estoppel, Abuse of Process, Turner Principle, Presentation of Petition, Security for Costs
Source Language
EN
Bankruptcy Limitation Law Civil Procedure Contract/insurance Law Res Judicata/issue Estoppel Statutory Demand Limitation Period Issue Estoppel +4 more

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Parties

AIG Insurance Hong Kong Limited

Petitioner

Yip Kim Po

Debtor

Procedural Posture

Bankruptcy Petition / Hearing on Stay Summons and Judgment on Petition Following Application to Set Aside Statutory Demand and Appeal

Legal Issues

  1. 1 Whether debtor is precluded by res judicata/issue estoppel from raising a limitation defence at the petition hearing after losing an application to set aside the statutory demand
  2. 2 Whether a bankruptcy petition or the service of a statutory demand constitutes an "action" for the purposes of s.4(1)(a) of the Limitation Ordinance and when limitation runs

Ratio Decidendi

Debtor was precluded by the prior determination on the application to set aside the statutory demand (issue estoppel/res judicata and Turner public policy) from raising the limitation defence at the petition hearing; accordingly the debtor's stay summons was dismissed and the petition proceeded, and the court held that in the bankruptcy context the term "action" under s.4(1)(a) of the Limitation Ordinance is sufficiently broad to encompass the two‑stage statutory demand/petition process.

Court Disposition

Debtor's summons dismissed; usual bankruptcy order made against the Debtor.

Orders

  • The Debtor's Summons dated 15 September 2021 is dismissed with costs to be paid by the Debtor to the Petitioner, to be taxed if not agreed
  • There be a usual bankruptcy order against the Debtor