RE WAN PO JUN MARY PAULINE

HCB 144/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. 144 OF 2011

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D E C I S I O N

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1.  All the papers relating to this appeal are in English. In such circumstances, though the hearing was conducted in Chinese, I decide to give my judgment in English.

2.  In this appeal, the Bankrupt seeks to appeal against the order of Master M Wong dated 4 April 2014, granting leave to the Applicant to proceed with HCA 1478 of 2009 (“the Action”) to claim against the Bankrupt for, inter alia, possession of the property in Harbour Front Landmark in Wan Hoi Street (“the Property”) subject to certain condition.

3.  The Applicant is the defendant in the Action. In the Action, the Bankrupt claimed against the Applicant, who was the representative of the estate of the deceased, for half-share in the estate of the deceased including the rights in the use and the occupation of the Property.  The deceased was the father of the Applicant and the Bankrupt was the alleged co-habitee with the deceased prior to his death.  The detailed background of the dispute between the Applicant and the Bankrupt is set out in the judgment of HH Leung in DCCJ 3315 of 2011, a copy of which is exhibited at AYYM-3 of the 2nd affidavit of the Applicant.

4.  The bankruptcy order against the Bankrupt was made on 11 April 2011.  Under sections 12 and 58 of the Bankruptcy Ordinance, the Bankrupt no longer processes an independent right to carry on with any proceedings as all her properties are now vested in the trustee-in-bankruptcy. As the Bankrupt has not obtained the consent of the trustee-in-bankruptcy in lodging the present appeal, the Bankrupt simply has no locus to file the notice of appeal.  The appeal should therefore be dismissed.

5.  Further, whether to grant leave to the Applicant to continue the Action against the Bankrupt is a matter between the Applicant and the trustee-in-bankruptcy.  In determining whether to grant leave under section 12 of the Bankruptcy Ordinance, the court is not concerned with the overall merits of the claim itself.  Rather, the court should focus on the effect of the litigation on the administration of the estate of the Bankrupt, which is a matter for the trustee-in-bankruptcy to consider.  As the trustee in bankruptcy has no objection for the court to grant leave to continue the proceedings under section 12 of the Bankruptcy Ordinance, the learned Master was right in refusing to consider the Bankrupt’s further submissions on the overall merits of the claim in the Action.

6.  The learned Master’s decision in granting leave cannot be faulted.  Further, as the Bankrupt has no right to lodge the appeal, the appeal is therefore dismissed.