Re: LAM YING KIN and BANK OF CHINA (HONG KONG) LTD

HCB 6125/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPCTY PROCEEDINGS NO. 6125 OF 2001

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J U D G M E N T

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1. The petitioner, the Bank of China (Hong Kong) Limited, was formerly the National Commercial Bank before the merger. The petition was brought on the basis of a judgment debt in the sum of HK$42,661,583.47 obtained by the petitioner in HCA No. 2697 of 2000. In the case of the debtors in HCB Nos. 6125 and 6126 of 2001, the judgment was obtained by default on 9 May 2000. In the case of the debtor in HCB No. 6174 of 2001, he had filed a defence in the High Court action. The petitioner applied for summary judgment against that debtor who did not file any affirmation in opposition and summary judgment was given by a master on 9 October 2000.

2. All three debtors had executed 2 deeds of guarantee in favour of the petitioner dated 20 August 1998 to guarantee the liability of a company known as Shun Hing Creation Company Limited. That gave rise to the High Court action against them.

3. Having obtained the judgments against the debtors, the petitioner served a statutory demand against the debtor in HCB No. 6125 of 2001 by advertisement in a newspaper on 18 December 2000. In the case of the debtor in HCB No. 6126 of 2001 the statutory demand was served by advertisement on 9 December 2000. For the debtor in HCB 6174 of 2001, that was done by advertisement on 24 April 2001.

4. For all three debtors the Petitioner had obtained orders for substituted service of the petition on them and the orders were complied with. I am satisfied that the petition was duly served on each of the debtors.

5. At the hearing today, the ground advanced on behalf of the three debtors for opposing the petition is that there was an oral agreement made by the three debtors with the petitioner, the date of which was uncertain, by which the petitioner allowed the debtors in HCB Nos. 6125 and 6126 of 2001 to pay the indebtedness of HK$42 million odd by monthly instalments of HK$10,000.00. In respect of the debtor in HCB No. 6174 of 2001, it was alleged that the petitioner had agreed that he could pay the indebtedness by instalments of HK$20,000.00 a month. The debtors had complied with this verbal agreement for a short time, after which the petitioner disregarded the agreement to compromise and sued them for the full indebtedness. It seems clear to me that no consideration was provided by any of the debtors for the alleged agreement to compromise, even assuming that this were true.

6. I am satisfied that none of the debtors have any or any reasonable ground to set aside the judgments obtained against them. This is an appropriate case to make a bankruptcy order against each of the debtors with costs to the petitioner. I also record that the petitioner's solicitors have given an undertaking that they would file within today, an order made by Deputy Judge To on 5 November 2001 in which the judge ordered that the name of the petitioner in, inter alia, the three bankruptcy petitions that I am concerned with, is to be changed to Bank of China (Hong Kong) Limited.