WIN CITY LTD v. SHUM HO

WIN CITY LTD v. SHUM HO

The application for a stay was dismissed because the trustee in bankruptcy, not the bankrupt, held the relevant choses in action arising from the bankruptcy order and had not assigned or consented to the bankrupt prosecuting an appeal; consequently the bankrupt lacked locus standi to appeal and there was no arguable appeal to justify a stay, notwithstanding that the substantive claim for vacant possession was not a debt provable in bankruptcy.

Citation
[2022] HKCFI 1958
Parties
Plaintiff (hca 1807/2015) and 4th Defendant (hca 2877/2016): Win City Limited (偉信達有限公司); Defendant (hca 1807/2015) and Counterclaimant (appeared in Person): Shum Ho (沈浩); Plaintiff (hca 2877/2016): Chu Wai Shan; 1st Defendant (hca 2877/2016): Chan Kok Wai; 2nd Defendant (hca 2877/2016): Wong & Wong (a firm); 3rd Defendant (hca 2877/2016): Li Tak Leung (李德良); Joint and Several Trustee of the Property of Shum Ho: Osman Mohammed Arab
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 June 2022
Case Number
HCA1807/2015
Procedural Posture
Civil: Possession, Trespass/mesne Profits and Related Declaratory/appeal Issues / Post Judgment Application for Stay of Execution Pending Appeal and Determination of Appellant's Locus Standi Following Bankruptcy
Outcome
Application for stay of execution dismissed with costs; notice of appeal liable to be struck out for lack of locus standi; Win City undertook not to enforce vacant possession order for 48 hours to permit urgent appellate application
Legal Topics
Stay of Execution, Bankruptcy Vesting of Choses in Action, Vacant Possession, Mesne Profits, Leave to Proceed in Bankruptcy, Locus Standi to Appeal
Source Language
EN
Bankruptcy Civil Procedure Property Law Landlord and Tenant Appeals Stay of Execution Bankruptcy Vesting of Choses in Action Vacant Possession +3 more

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Parties

Win City Limited (偉信達有限公司)

Plaintiff (hca 1807/2015) and 4th Defendant (hca 2877/2016)

Shum Ho (沈浩)

Defendant (hca 1807/2015) and Counterclaimant (appeared in Person)

Chu Wai Shan

Plaintiff (hca 2877/2016)

Chan Kok Wai

1st Defendant (hca 2877/2016)

Wong & Wong (a firm)

2nd Defendant (hca 2877/2016)

Li Tak Leung (李德良)

3rd Defendant (hca 2877/2016)

Osman Mohammed Arab

Joint and Several Trustee of the Property of Shum Ho

Procedural Posture

Civil: Possession, Trespass/mesne Profits and Related Declaratory/appeal Issues / Post Judgment Application for Stay of Execution Pending Appeal and Determination of Appellant's Locus Standi Following Bankruptcy

Legal Issues

  1. 1 Whether a claim for vacant possession is a debt provable in bankruptcy requiring leave to proceed
  2. 2 Whether a discharged or undischarged bankrupt has locus standi to appeal where the trustee was appointed and did not assign causes of action back to the bankrupt
  3. 3 Whether a stay of execution pending appeal should be granted in absence of an arguable appeal

Ratio Decidendi

The application for a stay was dismissed because the trustee in bankruptcy, not the bankrupt, held the relevant choses in action arising from the bankruptcy order and had not assigned or consented to the bankrupt prosecuting an appeal; consequently the bankrupt lacked locus standi to appeal and there was no arguable appeal to justify a stay, notwithstanding that the substantive claim for vacant possession was not a debt provable in bankruptcy.

Court Disposition

Application for stay of execution dismissed with costs; notice of appeal liable to be struck out for lack of locus standi; Win City undertook not to enforce vacant possession order for 48 hours to permit urgent appellate application

Orders

  • Application for a stay of execution pending appeal dismissed with costs to Win City Limited
  • Win City Limited gave an undertaking not to enforce the order for vacant possession for 48 hours to enable Mr Shum to make any urgent application to the Court of Appeal