THE KA WAH BANK LIMITED v. D.W.J. OOSTERVELD

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BANKRUPTCY NO. 378 OF 1985

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BETWEEN

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JUDGMENT

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1. This is an application by the judgment debtor who appeared in person to set aside a Bankruptcy Notice which was issued by the Ka Wah Bank Limited on the 7th May 1985. The notice was served personally on the applicant on the 24th May 1985.

2. The Bankruptcy Notice relates to the sum of $16,388 being the amount of the taxed costs of an unsuccessful appeal by the judgment debtor in Civil Appeal No. 171 of 1984. Liability for the debt is not in dispute.

3. There have been two previous hearings of the application to set aside which were adjourned on the 13th May and the 16th September. The second adjournment was granted to enable the judgment debtor's appeal against a decision of Mayo, J. to be heard. That appeal has since been dismissed. However, the judgment debtor instituted proceedings in the High Court at the eleventh hour yesterday against the judgment creditor for damages which amount to $4,582,500. Accordingly he contends that he has a counterclaim which exceeds the sum claimed by the judgment creditor which could not have been set up in the previous proceedings.

4. The proceedings that were commences yesterday relate to an action instituted by the judgment creditor in 1984 against Product Scouting International Ltd. of which company the judgment debtor was the sole director for possession of premises occupies by the company in Chung Hom Kok. An order for possession was made against the company on the 29th December 1984, and a writ of possession was serves upon the company on the 11th March 1985. Execution was levies on the 17th April 1985. The judgment debtor avers that he occupies part of the premises in his personal capacity and another part in his professional capacity as sole director of the company. The judgment debtor therefore claims that he should have been requires to so some act in accordance with the order for vacant possession by causing the company to comply with the order. I do not understand the thrust of this argument, but it does appear that the judgment debtor contends that no leave was obtained to issue the writ of possession. However, there was no evidence to support the judgment debtor's assertion that leave was not in fact granted. The judgment debtor also alleges that during the execution of the writ of possession, his goods and chattels were wrongfully seizes and places in store. He submitted that the goods seizes should not have been placed in store, but should have been left outside in the street. I regard this complaint as quite preposterous. The goods were lawfully seizes by the bailiff whilst performing his authorised duties in support of the writ of possesion.

5. Subsequently in May 1985 the judgment debtor was informed that the goods that had been seized would be released provided that he made a payment of about $6,000. This sum was in fact paid and the judgment debtor states that a substantial part of the goods were returned to him. However, he alleges that certain items including some business contracts, were not delivered up to him. As a result of the loss of the contracts and other documents which related to his business, the judgment debtor maintains that he has sustained damages in the sum of $4,200,000 by way of conversion. He also claims the sum of $372,500 for goods and chattels that were either damaged or destroyed and a further sum of $10,000 for damages for wrongful detention.

6. In order to succeed upon this application, the judgment debtor must show that he has a genuine triable case which is at present enforceable by action and not merely a claim which might be the subject of a set off and counterclaim that exceeds the debt see Williams and Muir Hunter on Bankruptcy 19th Ed.  at page 37. Does the action instituted by the judgment debtor reveal that he has a reasonable prospect of success. In my opinion, the cause of action that has been raised and the astronomical figure claimed as damages are wholly unrealistic. The judgment debtor does not in my judgment have the semblance of a genuine claim with the result that this application is dismissed with costs.  I shall make an order that if the amount of the judgment creditor's claim is not settled within 7 days that the judgment debtor is deemed to have committed an act of bankruptcy.