CHU WAI SHAN v. CHAN KOK WAI AND OTHERS

CHU WAI SHAN v. CHAN KOK WAI AND OTHERS

The court held that Win City’s claim for vacant possession was in the nature of possession/trespass and not a remedy against the bankrupt’s property in respect of a debt provable in bankruptcy so that claim could proceed without leave; however any rights of action relating to Win City shareholdings or choses in action vested in the trustees on the bankruptcy order (and trustees had not assigned those rights back to Mr Shum), so Mr Shum lacked locus to pursue the intended appeal; consequently there was no arguable appeal and the stay of execution was refused and the application dismissed with costs.

Citation
[2022] HKCFI 1958
Parties
Plaintiff (hca 1807/2015); 4th Defendant (hca 2877/2016): Win City Limited; Defendant (hca 1807/2015); Counterclaimant; Appeared in Person: Shum Ho; Plaintiff (hca 2877/2016): Chu Wai Shan; 1st Defendant (hca 2877/2016); 1st Defendant (counterclaim HCA 1807/2015): Chan Kok Wai; 2nd Defendant (hca 2877/2016 and Counterclaim HCA 1807/2015): Wong & Wong (a firm); 3rd Defendant (hca 2877/2016 and Counterclaim HCA 1807/2015): Li Tak Leung; Joint and Several Trustee of the Property of Shum Ho; Appeared in Person: Osman Mohammed Arab (RSM Corporate Advisory)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 June 2022
Case Number
HCA2877/2016
Procedural Posture
Civil Possession and Damages With Concurrent Bankruptcy Issues / Post Trial Application for Stay of Execution Pending Appeal and Determination of Bankrupt's Locus to Appeal
Outcome
Application for stay of execution dismissed with costs; Mr Shum has no locus to pursue the intended appeal as trustee holds vested choses in action; appeal liable to be struck out
Legal Topics
Vacant Possession, Mesne Profits, Trespass, Stay of Execution Pending Appeal, Vesting of Choses in Action, Leave to Proceed After Bankruptcy, Discharge From Bankruptcy, Locus Standi of Bankrupt
Source Language
EN
Bankruptcy Property Civil Procedure Tort Appeal Vacant Possession Mesne Profits Trespass +5 more

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Parties

Win City Limited

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

Shum Ho

Defendant (hca 1807/2015); Counterclaimant; Appeared in Person

Chu Wai Shan

Plaintiff (hca 2877/2016)

Chan Kok Wai

1st Defendant (hca 2877/2016); 1st Defendant (counterclaim HCA 1807/2015)

Wong & Wong (a firm)

2nd Defendant (hca 2877/2016 and Counterclaim HCA 1807/2015)

Li Tak Leung

3rd Defendant (hca 2877/2016 and Counterclaim HCA 1807/2015)

Osman Mohammed Arab (RSM Corporate Advisory)

Joint and Several Trustee of the Property of Shum Ho; Appeared in Person

Procedural Posture

Civil Possession and Damages With Concurrent Bankruptcy Issues / Post Trial Application for Stay of Execution Pending Appeal and Determination of Bankrupt's Locus to Appeal

Legal Issues

  1. 1 Whether Win City’s claim for vacant possession required leave of the bankruptcy court to proceed after a bankruptcy order
  2. 2 Whether damages for trespass and mesne profits arising before the bankruptcy order were provable in bankruptcy and required leave
  3. 3 Whether an appeal by an individual bankrupt (or discharged bankrupt) lies where choses in action vested in trustees

Ratio Decidendi

The court held that Win City’s claim for vacant possession was in the nature of possession/trespass and not a remedy against the bankrupt’s property in respect of a debt provable in bankruptcy so that claim could proceed without leave; however any rights of action relating to Win City shareholdings or choses in action vested in the trustees on the bankruptcy order (and trustees had not assigned those rights back to Mr Shum), so Mr Shum lacked locus to pursue the intended appeal; consequently there was no arguable appeal and the stay of execution was refused and the application dismissed with costs.

Court Disposition

Application for stay of execution dismissed with costs; Mr Shum has no locus to pursue the intended appeal as trustee holds vested choses in action; appeal liable to be struck out

Orders

  • Application dismissed with costs
  • Stay of execution pending appeal refused