RE MAK KAM MUN

RE MAK KAM MUN

The stay under s9(5) was removed and the petitions dismissed because there was a material change of circumstances (no realistic prospect of criminal prosecution and substantial unexplained delay in civil proceedings), the prolonged retention of security and stay caused significant prejudice to the debtors, the alleged debt was disputed and partially covered by payment into court, and the proper forum to resolve disputed liability is the civil court rather than the bankruptcy jurisdiction.

Citation
RE MAK KAM MUN
Parties
Petitioner: Nelson Jewellery Arts Co. Ltd; Debtor: Mak Kam Ling; Debtor: Mak Kam Mun; Official Receiver: Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 July 2004
Case Number
HCB8607/2001
Procedural Posture
Bankruptcy / Hearing on Applications to Remove Stay of Proceedings and Dismissal of Bankruptcy Petitions
Outcome
Stay removed; petitions dismissed; security paid out to Mak Kam Ling subject to undertaking; costs orders nisi made against Petitioner
Legal Topics
Stay of Proceedings, Security Paid Into Court, Statutory Demand, Dismissal of Petition, Delay and Prejudice, Jurisdiction to Revisit Orders, Costs Orders, Mareva Injunction, Duress/undue Influence
Source Language
EN
Bankruptcy Civil Procedure Insolvency Criminal Procedure Stay of Proceedings Security Paid Into Court Statutory Demand Dismissal of Petition +5 more

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Parties

Nelson Jewellery Arts Co. Ltd

Petitioner

Mak Kam Ling

Debtor

Mak Kam Mun

Debtor

Official Receiver

Official Receiver

Procedural Posture

Bankruptcy / Hearing on Applications to Remove Stay of Proceedings and Dismissal of Bankruptcy Petitions

Legal Issues

  1. 1 Whether the court should remove a stay made under section 9(5) of the Bankruptcy Ordinance
  2. 2 Whether security paid into court should be released to the debtor
  3. 3 Whether petitions should be dismissed where there is substantial delay and no prospect of criminal prosecution

Ratio Decidendi

The stay under s9(5) was removed and the petitions dismissed because there was a material change of circumstances (no realistic prospect of criminal prosecution and substantial unexplained delay in civil proceedings), the prolonged retention of security and stay caused significant prejudice to the debtors, the alleged debt was disputed and partially covered by payment into court, and the proper forum to resolve disputed liability is the civil court rather than the bankruptcy jurisdiction.

Court Disposition

Stay removed; petitions dismissed; security paid out to Mak Kam Ling subject to undertaking; costs orders nisi made against Petitioner

Orders

  • HCB 8606/2001: Stay of proceedings removed
  • HCB 8606/2001: Sum of 785860.00 HKD paid into court by Mak Kam Ling, together with all accrued interest, to be forthwith paid out to her solicitors subject to an undertaking to pay 180000.00 HKD to the Petitioner on payment out