RE TONG NAI KAN

RE TONG NAI KAN

Debtor failed to discharge the burden of showing a bona fide dispute on substantial grounds; having not complied with the statutory demand he is deemed insolvent under s.6A(1)(a); res judicata and the Turner principle bar him from reviving or introducing arguments at the petition stage that were or could have been raised on the application to set aside the statutory demand; jurisdiction and security arguments do not defeat the Petition; bankruptcy order granted.

Citation
[2023] HKCFI 3125
Parties
Petitioner: Industrial Bank Co., Limited; Debtor: Tong Nai Kan; Official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 December 2023
Case Number
HCB4735/2023
Procedural Posture
Bankruptcy / Petition Hearing and Bankruptcy Order Made
Outcome
Bankruptcy order made against Tong Nai Kan
Legal Topics
Statutory Demand, Setting Aside Statutory Demand, Guarantee, Jurisdiction, Res Judicata, Turner Principle, Insolvency
Source Language
EN
Bankruptcy Contract Civil Procedure Property Security International Arbitration Statutory Demand Setting Aside Statutory Demand Guarantee +4 more

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Parties

Industrial Bank Co., Limited

Petitioner

Tong Nai Kan

Debtor

Official Receiver

Official Receiver

Procedural Posture

Bankruptcy / Petition Hearing and Bankruptcy Order Made

Legal Issues

  1. 1 Whether the debtor is deemed insolvent for failing to comply with a statutory demand under s.6A(1)(a) of the Bankruptcy Ordinance
  2. 2 Whether the debtor has established a bona fide dispute on substantial grounds in respect of the unpaid debt
  3. 3 Whether issues of jurisdiction or arbitration clause prevent the Hong Kong court from hearing the petition

Ratio Decidendi

Debtor failed to discharge the burden of showing a bona fide dispute on substantial grounds; having not complied with the statutory demand he is deemed insolvent under s.6A(1)(a); res judicata and the Turner principle bar him from reviving or introducing arguments at the petition stage that were or could have been raised on the application to set aside the statutory demand; jurisdiction and security arguments do not defeat the Petition; bankruptcy order granted.

Court Disposition

Bankruptcy order made against Tong Nai Kan

Orders

  • Made bankruptcy order against Tong Nai Kan dated 27 November 2023
  • Dismissed the summons filed 24 November 2023 seeking retrospective leave to file an affirmation and to adjourn the petition