RE VINCENT THOMAS

HCB 7595/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. 7595 OF 2014

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D E C I S I O N

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1.  This is an application by the Bankrupt seeking to reverse the decision of the Officer Receiver (OR), the Trustee of the Bankrupt’s estate, under s.83 of the Bankruptcy Ordinance, Cap 6 in respect of her refusal to adopt the Bankrupt’s Labour Tribunal proceedings under LBTC 2841/2016 (Proceedings) or to assign the Proceedings to him.

2.  It is well-established that: (a) the court would only interfere with the trustee’s act or decision if it is utterly unreasonable and absurd that no reasonable trustee would have so acted; and (b) the trustee is entitled to refuse to give consent to a bankrupt to proceed with an action unless satisfied that it is meritorious and that funds are available to meet the costs or that the bankrupt furnishes an indemnity of costs (see Wan Po Jun v Au Yeung Yee Man [2013] HKEC 653). 

3.  In the Proceedings, the Bankrupt claims against the Hong Kong Automobile Association for the sum of HK$300,000 as wages/editorial fees in respect of 3 issues of the magazine “Driven”, ie, at HK$100,000 per issue for the Oct/Nov 2013 issue, Jan/Feb 2014 issue and May/June 2014 issue. 

4.  The Proceedings are identical to those in DCCJ 3133/2014 which were struck out by HH Judge Levy pursuant to a judgment dated 5 May 2015 (Judgment) on the grounds that the claim disclosed no reasonable cause of action, was frivolous and an abuse of the process of the court. 

5.  It appears from the statement of claim filed in the Tribunal that the Bankrupt initially sought redress at the Labour Department, and was “directed” to the District Court by the staff of the Department.  According to that statement, since the District Court proceedings were struck out the Bankrupt saw fit to make his claim in the Tribunal. 

6.  In light of the Judgment, it is unsurprising that the OR has considerable reservation on the merits of the Proceedings.  I believe that all the arguments of the Bankrupt, including the authority of Leung Kam Wah v Fung Yuk Ching, HCLA 43/2006, 23 April 2008, were considered by the learned Judge, and I have no reason to disagree with the OR in respect of the merits of the Proceedings.

7.  As regards the issue of costs, the Bankrupt maintains that there is no costs issue in the Proceedings and that he would provide a costs indemnity if the matters go to appeal.  I agree with the OR that the Bankrupt is wrong in that: (a) costs may be awarded by the Tribunal pursuant to s.28 of the Labour Tribunal Ordinance, Cap 25; and (b) once the OR gives consent to the Proceedings, she would be exposed to costs and the promise to provide an indemnity if the matters go on appeal is no answer to such exposure.

8.  In the premises, there is no reason to interfere with the decision in question, and I dismiss the Bankrupt’s Summons dated 17 October 2006 with costs to the OR, which are summarily assessed at HK$38,788.