RE : FU HAY KIN v. EX PARTE: FU LO LAI LIN

HCB000279/1994

NO. B279 OF 1994

IN THE SUPREME COURT OF HONG KONG

IN BANKRUPTCY

___________

BETWEEN
Re: FU HAY KIN (Judgment Debtor)
AND
Ex Parte: FU LO LAI LIN (Judgment Creditor)

__________

Coram: The Hon. Mr. Justice Rogers in Court

Date of hearing: 16 May 1995

Date of decision: 16 May 1995

_________________

D E C I S I O N

________________

1. In this application Mr. Fu Hay Kin who is the Judgment Debtor seeks to set aside the bankruptcy proceedings. The simple basis onwhich he says that should happen is that the Bankruptcy Notice was issued on the 22nd April 1994 in respect of a final judgment ororder which was dated 23rd March 1992. That order was made under Sec.4(1) of the Matrimonial Proceedings and Property Ordinance. By Sec.12(1) it is provided that:

“A person shall not be entitled to enforce through the court the payment of any arrears due under an order made by virtue of section 3, 4(1), 5(2), 8(5) or 8(6) without the leave of the court if those arrears became due more than twelve months before proceedings to enforce the payment ofthem are begun.”

2. As Mr. Fu has pointed out, when the Bankruptcy Notice was issued it would not have been possible for the Judgment Creditor to haveenforced the judgment the subject of the Bankruptcy Notice without obtaining leave of the Court. No leave was obtained. In thosecircumstances, the judgment sum referred to in the Bankruptcy Notice was not immediately due and payable. In those circumstancesthe Bankruptcy Notice was therefore invalid. For that reason, therefore, these bankruptcy proceedings must be set aside and I donot see that there is any discretion in the Court to order otherwise.

3. I would mention however that these bankruptcy proceedings have been stayed pending the outcome of an appeal to the Court of Appealwhich is due to take place next month. I have been asked to stay this application until after the outcome of that hearing. In viewof the conclusion to which I have come in respect of this application it seems to me that it would be wrong to delay the matter anyfurther and I set aside these bankruptcy proceedings. If the appeal to the Court of Appeal were unsuccessful then it would be opento the Judgment Creditor to obtain leave to enforce payment and bring such proceedings whether by way of bankruptcy proceedings orotherwise as she may be so advised.

(Anthony G. Rogers)
Judge of the High Court

Representation:

Mr. Joseph Lo instructed by D.L.A. for Petitioner

Ms. Silkstone of Official Receiver

Judgment Debtor in person : Fu Hay King (present)