Re: FU HAY KIN v. Ex Parte: FU LO LAI LIN

NO. B279 OF 1994

IN THE SUPREME COURT OF HONG KONG

IN BANKRUPTCY

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D E C I S I O N

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1. In this application Mr. Fu Hay Kin who is the Judgment Debtor seeks to set aside the bankruptcy proceedings. The simple basis on which he says that should happen is that the Bankruptcy Notice was issued on the 22nd April 1994 in respect of a final judgment or order 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 of them 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 have enforced the judgment the subject of the Bankruptcy Notice without obtaining leave of the Court. No leave was obtained. In those circumstances, the judgment sum referred to in the Bankruptcy Notice was not immediately due and payable. In those circumstances the Bankruptcy Notice was therefore invalid. For that reason, therefore, these bankruptcy proceedings must be set aside and I do not 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 Appeal which is due to take place next month. I have been asked to stay this application until after the outcome of that hearing. In view of 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 any further and I set aside these bankruptcy proceedings. If the appeal to the Court of Appeal were unsuccessful then it would be open to the Judgment Creditor to obtain leave to enforce payment and bring such proceedings whether by way of bankruptcy proceedings or otherwise as she may be so advised.