RE YUAN YIQIANG

HCB 7480/2018

[2020] HKCFI 259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 7480 OF 2018

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J U D G M E N T

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A. INTRODUCTION

1.  The Petitioner was the landlord.  The debtor in this case (“Mr Yuan”) and the debtor in HCB 6077/2018 (“Mr Foo”) were the guarantors under the tenancy agreement. 

2.  The Petitioner obtained Default Judgment dated 7 September 2018 against the tenant, Mr Yuan and Mr Foo in HCA 1632/2018 (“the Action”).

3.  Based on the Default Judgment, the Petitioner issued a statutory demand against Mr Yuan on 14 September 2018 for a sum of HK$4,401,248.73 (“the SD”).  He was served on 15 October 2018 by advertisement.  Having recovered vacant possession of the premises on 29 November 2018, the Petitioner applied the deposit of HK$8,500,000 under the tenancy agreement (“the Deposit”) to set off the judgment debt. 

4.  The SD was not satisfied.  The Petitioner petitioned for the bankruptcy of Mr Yuan on 28 December 2018.  On the day of the Petition, Mr Yuan allegedly still owed the Petitioner $966,336.88.  The Petition was later amended on 20 November 2019 to plead the application of the Deposit.

5.  On 25 November 2019 (“the Previous Hearing”), this court found no defence put forth by Mr Yuan and issued a bankruptcy order against him.  See the judgment in this case dated 25 November 2019.

6.  Mr Yuan took out the present summons to review and set aside the bankruptcy order (“the Review Summons”).  He asks for the present proceedings to be consolidated and heard together with the Petition against Mr Foo.  The grounds are that:

(1)     This court should have consolidated the 2 Petitions to be heard together (“the consolidation ground”); and

(2)     There is a bona fide dispute as to the amount of the debt said to be owed by Mr Yuan (“the bona fide dispute ground”).

7.  The Review Summons is opposed by the Petitioner for lack of change of circumstances or fresh evidence and that Mr Yuan simply wanted to delay matters.

8.  This is the substantive hearing of the Review Summons.  If this court does set aside the bankruptcy order, the Petition against Mr Yuan will also be substantively considered and disposed of.

9.  Meanwhile, Mr Foo faced a similar SD.  His bankruptcy petition was adjourned for substantive argument to the same day as this hearing.

10.  On the same date as this judgment, this court dismissed the Petition against Mr Foo on the ground that, applying the Deposit, as at the date of the SD or the Petition, there was no debt due to the Petitioner.  See HCB 6077/2018, Au-Yeung J, 22 January 2020, §§14-30 (“the Foo Judgment”). The same reasoning would have been applicable to Mr Yuan as the underlying tenancy agreement and Default Judgment were the same.  The question is whether or not this court should, in the light of the Foo Judgment, review and rescind Mr Yuan’s bankruptcy order.

B.    UNDISPUTED FACTS

11.  A short chronology of the litigation history is set out below:

07.2018           The tenant (“WJC”) defaulted in payment of rent since.

07.09.2018      Petitioner entered Default Judgment, being a “final and interlocutory judgment and order”, against WFC, Mr Yuan and Mr Foo for vacant possession of the leased premises, outstanding rent for July 2018, and mesne profits at $2 million per month from August 2018 until delivery of vacant possession.

14.09.2018      Statutory demands (“SD”) issued against Mr Yuan and Mr Foo respectively.

08.10.2018      Petitioner obtained writ of possession and fieri facias combined.

15.10.2018      Statutory demand served on Mr Yuan by Chinese advertisement in newspaper.

29.11.2018      Petitioner obtained vacant possession of the premises with the assistance of bailiffs.

28.12.2018      Petition presented based on non-compliance with the SD.

16.09.2019      Master Queenie Lau set aside the Default Judgment on condition of payment of half of the judgment sum (about $700,000) into court (“the Condition”) within 28 days.

23.10.2019      Extended deadline for Mr Yuan to fulfil the Condition.

25.10.2019      Mr Yuan’s application for further extension of time to fulfil the Condition was dismissed by Master Kot.

29.10.2019      Mr Yuan filed a notice of appeal (29 days out of time) against Master Lau’s decision.

07.11.2019      Mr Yuan’s application for stay of execution of the Default Judgment pending outcome of the appeal was dismissed by Recorder S Wong SC.

20.11.2019      Petition amended.

25.11.2019      Bankruptcy order issued against Mr Yuan.

9.12.2019        Review Summons

27.02.2020      Hearing date for Mr Yuan’s appeal against Master Lau’s decision.

C.    LEGAL PRINCIPLES FOR REVIEW OF A BANKRUPTCY ORDER

12.  Section 98(1) of the Bankruptcy Ordinance (Cap 6) (“the Ordinance”) provides that:

“The Court or the Registrar may review, rescind or vary any order made by it or him, as the case may be, under its or his bankruptcy jurisdiction.”

13.  The power given to the court to review under section 98(1) is a jurisdiction to rehear made in the exercise of its bankruptcy jurisdiction. That jurisdiction is, in a proper case, almost without limit: Wing Lung Bank Ltd v Ho Shiu-sun [1986] HKLR 1134, at 1140 I-J, Clough J, CA.  (In that case, the receiving orders were set aside on the ground that the debtors had not received the bankruptcy notices and had not committed the acts of bankruptcy which founded the petitions.)

14.  In Zhang Sabine Soi Fan v The Official Receiver (unreported HCB 472/1989, 21 May 1999), p 2, Le Pichon J (as she then was) made the following observations:

(a)     In practice, the courts are cautious in exercising the jurisdiction to review their own decisions, since the effect of so doing is to allow what may amount to a second application for the order or relief which is being sought, possibly beyond the time limited for making the original application; 

(b)     The cases in which the court will exercise its discretion to entertain such an application will therefore be somewhat rare, and will normally involve the operation of exceptional circumstances, such as fresh and cogent evidence such as would, if unanswered, furnish grounds for reversing or varying the original order of that court; and

(c)     What is needed is evidence to show either that there was no debt or for some other reason the statutory demand ought to have been set aside.  The statutory demand ought to have been set aside either where the debt is proved to have been paid or to be no longer owing, or never to have arisen or where the debt is bona fide disputed on substantial grounds.  Fresh evidence must be cogent, and where credible, it obviously need not be incontrovertible: see also Re A Debtor [1993] 2 All ER 991 per Millett J.

15.  However, the court is not to review its order simply on the basis that the applicant wants to present essentially the same facts and the same arguments but more forcefully or attractively: Ross v the Commissioners to Her Majesty’s Revenue & Custom [2012] EWHC 1054 (Ch), 19 March 2012, at §§11-12, Norris J; Papanicola v Humphreys [2005] 2 All ER 418, at §§ 25-26, 34, Laddie J.

16.  The rationale for these principles have been set out in Re A Debtor, Millett J:

“It follows, in my judgment, that there is jurisdiction in the court to review and rescind or vary an order dismissing an application to set aside a statutory demand, and the contrary was not contended before me. As a matter of discretion I have no doubt that the jurisdiction ought to be rarely exercised, since the effect of doing so would be to allow what would amount to a renewed application to set aside a statutory demand after the period limited for making the application. It is dear from the time limit for making the application that Parliament envisaged that such applications should be made speedily, and any attack upon the validity of the debt on which the petitioning creditor intends to proceed should either be made within 18 days by the adoption of the statutory procedure or should be raised at the hearing of the bankruptcy petition. Counsel submitted that great caution must be exercised in dealing with applications of the present kind, since the result would be to lead to an absence of finality, and he drew an alarming picture of the floodgates which would be opened if I were to allow this appeal, I will deal with the floodgates argument in a moment.

The second question is whether fresh evidence is admissible upon an application under s 375, that is to say evidence which could with due diligence have been obtained in time for the original hearing. In my judgment there is a significant distinction between an application under s 375 of the Insolvency Act 1986 and an appeal. When an appeal is brought from the making of an order the appellant must persuade the appellate court that the original order should not have been made on the material then before it or upon fresh material adduced in the appellate court in accordance with the rule in Ladd v Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489. Where an application is made to the original tribunal to review, rescind or vary an order of its own, however, the question is not whether the original order ought to have been made upon the material then before it but whether that order ought to remain in force in the light either of changed circumstances or in the light of fresh evidence, whether or not it might have been obtained at the time of the original hearing. The matter is one of discretion, and where the evidence might and should have been obtained at the original hearing that will be a factor for the court to take into account; but the rationale for the rule in Ladd v Marshall that there should be an end to litigation and that a litigant is not to be deprived of the fruits of a judgment except on substantial grounds has no bearing in the bankruptcy jurisdiction. …” (underline added)

D.   THE CONSOLIDATION GROUND FOR REVIEW

17.  Under section 101 of the Ordinance,

“Where 2 or more bankruptcy petitions are presented against the same debtor or against joint debtors the court may consolidate the proceedings or any of them on such terms as the court thinks fit.”

18.  At the Previous Hearing, it was Ms Sharon Ng, counsel for the Official Receiver, who invited the court to “consolidate” the Petitions.  She informed the court of 3 questions posed by Anthony Chan J in the Petition against Mr Foo:

(1)     Whether the amount of debt stated in the Petition could be considered as a liquidated sum? (“liquidated sum issue”)

(2)     Whether the amount of debt stated in the Petition was identical to that on the SD; if not, whether this would render the Petition defective? (“identical debt issue”)

(3)     Whether it was open to the Petitioner to seek a bankruptcy order with an underlying debt which included mesne profits from 14 September 2018 (date of the SD) to 28 December 2018 (date of the Petition), or to 29 November 2018 (date of recovery of vacant possession) and/or any amount other than that stated in the SD? (“mesne profits issue”)

19.  The then concern of the Official Receiver was that the Petitioner might recover the judgment debt thrice from 2 different debtors.  However, the Petitioner had there and then undertaken not to do so.  See also the judgment for the Previous Hearing at §§14 and 15.

20.  Mr Yuan was represented at that hearing.  His solicitor was given an opportunity to address the court on the merits of the Petition.  Although the circumstances leading to the underlying debt were the same in the 2 Petitions, as Mr Yuan had not filed an affirmation, there was no issue of facts.  Nor could his solicitor identify a common issue of law with the Petition against Mr Foo.

21.  Hence, the issue of consolidation was raised and considered, but rejected at the Previous Hearing.

22.  As of today, Mr Wong Hok Yan, counsel for Mr Yuan, could not tell this court what form the consolidation should really take, apart from hearing both Petitions together.  In fact, in the letter to the court, Mr Yuan’s solicitors took a contradictory position, stating that a de facto consolidation of the 2 Petitions “created embarrassing situations”.

23.  In view of the analyses in this Section, Ground 1 fails.

E.    GROUND 2: THE BONA FIDE DISPUTE GROUND FOR REVIEW

E1.  Grounds for disputing the debt

24.  Many grounds have been advanced by Mr Wong Hok Yan.  He submits that there are reasonable prospects of success in the appeal which will be heard next month.  It is not disputed that the Default Judgment was entered irregularly. He submits that the court may “go behind” the Default Judgment, which was challenged on the ground of forgery of Mr Yuan’s signature on the tenancy agreement.  He challenges the extent to which the Petitioner was entitled to mesne profits, claiming that the tenant was denied entry into the premises after he defaulted in payment of rent.  As the tenant has left the premises latest by mid-September 2018, the Petitioner was not entitled to mesne profits thereafter.  Mr Wong also suggests that the mesne profits were not liquidated sums that could form the subject matter of the SD or the Petition.  For reasons that will become obvious in the following Section, it is not necessary to analyze these grounds.  The only issue is whether or not there was any debt due from Mr Yuan to the Petitioner as at the date of the SD or the Petition (“debt due issue”)

E2.  Exceptional circumstances for review

25.  One should not forget the inaction of Mr Yuan.  He did not defend the High Court Action.  He made every effort to comply with the Condition.  He did not challenge Master Lau’s decision until he could not get the second time extension for compliance with the Condition.  By then his notice of appeal was out of time for 29 days.  He applied for stay of execution pending appeal but failed.  He did not apply to set aside the SD.  He did not show cause or file any evidence to contest the Petition despite being legally represented. 

26.  The evidence that Mr Yuan now puts forth was available to him before the Previous Hearing but that is still admissible according to Millett J in Re A Debtor.

27.  However, there was one point about the Deposit extinguishing the debt which featured in Mr Foo’s opposition to the Petition against him, now similarly relied on by Mr Yuan.  That point led to the dismissal of the Petition against Mr Foo and it should be considered here. For ease of reference, I summarize in Section E3 below my findings in §§8-12 (legal principles) and §§14-31 (analyses of the debt due issue) of the Foo Judgment.

E3.  Legal principles set out in the Foo Judgment

28.  Section 6(2) of the Ordinance provides that a creditor’s petition may be presented to the court in respect of a debt that exceeds $10,000, if the debt is for a liquidated sum payable to the petitioning creditor either immediately or at some certain, future time, and is unsecured.  Under section 6(2)(c), the debt has to be one which the debtor appears to be unable to pay.

29.  Under section 6A of the Ordinance, for the purposes of section 6(2)(c), the debtor appears to be unable to pay a debt if, but only if, the debt is payable immediately and, after lapse of at least 3 weeks since service, the statutory demand was neither complied with nor set aside.

30.  In bankruptcy, it is not the debtor’s general inability to pay his debts that is crucial but the apparent inability to pay the debt in the statutory demand, and at the hearing of the bankruptcy petition the failure to pay or secure or compound for that debt: Re Leung Cherng Jiunn, unrep, HCB 244/2014, 21 May 2015, §24, Recorder Linda Chan SC (as she then was), following TBS Bank plc v Platts (No.2) [1998] BPIR 284, at 288H-290A.

31.  Under rule 48(5) of the Bankruptcy Rules, Cap 6A, the court may set aside a statutory demand if (a) the debtor appears to have a counterclaim or set-off which equals or exceeds the amount of the debt specified in the statutory demand; or (b) the debt is disputed on grounds which appear to the court to be substantial.

32.  The debtor will not normally be precluded from taking the points which he could have taken on an application to set aside the statutory demand at the hearing of the Petition: Re Leung Cherng Jiunn, §24.

E4.  Analyses of the debt due issue in Foo’s Judgment

33.  The issue was whether there was a debt due to the Petitioner as at the date of the SD or the Petition.  It turned on how the Deposit should be treated.  This was governed by Clause 5 of the tenancy agreement:

“5. Deposit

5.01 On or before the signing of this Agreement the Tenant shall pay the Deposit to the Landlord to secure the due observance and performance by the Tenant of the agreements stipulations and conditions herein contained and on the Tenant’s part to be observed and performed. The Deposit shall be used and enjoyed by the Landlord as his own money free of any trust to the exclusion of and free of any interest to the Tenant.

5.02 Should the First Schedule hereto provide for an increase in Rent during the Term of Tenancy, the Tenant shall upon receiving written notice from the Landlord or its agent pay to the Landlord in cash by way of an increase in the Deposit a sum proportional to the said increase in Rent in order to restore the ratio of Deposit to Rent to that previously subsisting prior to such increase. Upon payment of the said sum, all references herein to the Deposit shall be deemed to be references to the Deposit as increased by the said sum.

5.03 Without prejudice to any other rights or remedies of the Landlord hereunder, in the event of the amount of any Rent or other charges payable hereunder being in arrear or any loss or damage being incurred or sustained by the Landlord as the result of any non-observance or non-performance by the Tenant of any agreements stipulations or conditions contained in this Agreement, the amount of the Deposit paid to the Landlord by the Tenant shall be deemed to have been reduced by the amount of Rent or other charges in arrear or the loss or damage suffered by the Landlord [“the deeming provision”] and the Tenant shall on demand by the Landlord forthwith further deposit the amount by which the Deposit is deemed to have been reduced and failure by the Tenant so to do shall entitle the Landlord forthwith to re-enter the Premises and to determine this Agreement as herein provided.

5.04 Subject as aforesaid, a sum equivalent to the Deposit (reduced by the amount of Rent or other charges in arrear or the loss or damage suffered by the Landlord, if applicable) shall be paid to the Tenant by the Landlord without interest within thirty days after the expiration or sooner determination of this Agreement and the delivery of vacant possession of the Premises and the Furniture to the Landlord in such repair and condition in accordance with Clause 6.08 hereof or within thirty days of the settlement of the last outstanding claim by the Landlord against the Tenant in respect of any breach, non-observance or non-performance of any of the agreements stipulations or conditions herein contained and on the part of the Tenant to be observed and performed, whichever is the later.” (underline added.)

34.  Mr Foo’s former counsel submitted that the Deposit would have been mandatorily set off pursuant to Clause 5.03 to extinguish the debt.

35.  I rejected 2 arguments of Mr Lok, counsel for the Petitioner.

36.  Firstly, Mr Lok submitted that Clause 5.03 did not deal with the amount of indebtedness owed by the tenant.  It merely deemed but did not actually reduce the Deposit.  It simply provided the Petitioner with the option of requesting for extra deposit that represented the amount due from the tenant; at the same time, the landlord could, still hang on to the $8,500,000. 

37.  I accept that Clause 5.03 had to be read in the context of the tenancy agreement.  However, with respect, Mr Lok’s submission needed only be stated to be rejected, as being contrary to the terms of the tenancy agreement.  “Deposit” was defined as meaning $8,500,000 only.  See the First Schedule to the tenancy agreement.  The only situation for increasing the Deposit was upon an increase in rent: Clause 5.02.  If Mr Lok was correct, the landlord could ask for extra deposit without limit upon every default of the tenant.  If so, why was it necessary to include the “deeming provision” in Clause 5.03 in the first place?  And it was in mandatory terms – “shall be …”.  On the other hand, why would the tenant have to pay the extra deposit?  If the tenant had money to pay it, it would have paid off eg the rent or charges in arrears.

38.  I rejected the first reason of Mr Lok.

39.  Secondly, Mr Lok contended that Clause 5.03 expressly provided that that Clause was “without prejudice to any other rights or remedies of the landlord hereunder [ie under the tenancy agreement]”.  It would include the Petitioner’s rights to retain the Deposit under Clause 5.04 and/or to forfeit it upon the tenant’s breach under Clause 8.01.

40.  With respect, Clause 5.04 was not talking about the right of the Petitioner but its obligation to return the Deposit.  Clause 5.04 plainly foresaw the possibility of the Deposit being reduced to below HK$8,500,000 because of arrears of rent or loss and damage, such that the Petitioner was only obliged to return a lesser sum to the tenant.

41.  As for Clause 8.01, it was in these terms:

“If the Rent or any part thereof shall be unpaid for ten (10) days after the same shall have become payable (whether formally demanded or not) or if the Tenant shall fail or neglect to perform or observe any of agreements stipulations and conditions herein contained and on his part to be performed or observed ... this Agreement shall absolutely determine and the right of the Tenant to the payment of a sum equivalent to the Deposit or any part thereof shall be forfeited and the Landlord shall be absolutely discharged from his obligation to make such payment notwithstanding Clause 5 but without prejudice to any right of action of the Landlord in respect of any breach of the Tenant’s agreements stipulations and conditions herein contained ... ” (underline added)

42.  Mr Lok submitted that whilst the Petitioner had the option to do so, the Petitioner had no obligation to apply the Deposit to offset any debt or the tenant at any point in time.  Read with Clause 5.01 which defined the purpose of the Deposit as being “to secure the due observance and performance by the tenant of the agreements”, and the free right of the Petitioner to use the Deposit; the tenant was not entitled to set off the Deposit against Mr Foo’s indebtedness.  Mr Lok cited Re Kwong Ngai Ping, HCB 9447/2003, Reasons for Judgment dated 22 April 2004, at §27, DHCJ Poon (as he then was).

43.  With respect, Re Kwong Ngai Ping merely stated the general proposition.  That case did not have a clause similar to Clause 5.03 here.

44.  Moreover, the Deposit represented 4.25 times the monthly rent of $2,000,000, much more than the usual 1-2 months’ rental deposit in a tenancy. Clause 8.01 was by its nature an unenforceable penalty clause.

45.  In any event, the Petitioner had decided not to exercise the option of forfeiture.  Hence, the deeming provision had continued to operate until 29 November 2018.

46.  I therefore rejected the second argument of Mr Lok.

47.  The total debt due under the Default Judgment was:

(a)     HK$4,401,248.73, as at the date of the SD; and

(b)     HK$7,102,414.79, as at the date of the Mr Foo’s Petition;

48.  Applying the Deposit on either of those 2 dates, the debt was totally distinguished.  Although Mr Foo did not apply to set aside the SD, that did not preclude him from raising the arguments as he did on points of law: Re Leung Cherng Jiunn (paragraph 32 above).  His Petition must be dismissed on this ground alone.

49.  Alternatively, because of the deeming provision, the rent, repair and maintenance charges due to the Petitioner would have automatically been set-off as soon as they fell into arrears.  It was plainly questionable for the Petitioner to obtain judgment on those arrears or charge interest on them. This was at least a bona fide dispute as to validity of the Default Judgment on substantial grounds. 

E5.  Applicability of the Foo Judgment on Debt Due

50.  The reasoning in the Foo Judgment is equally applicable to Mr Yuan as the debt was the same.  There is a slight difference between them because the Petition against Mr Foo was issued before recovery of vacant possession and that against Mr Yuan was issued after. If the Deposit could only be applied in the manner proposed by the Petitioner, there was still a debt of over HK$10,000 due as at the date of the Petition.

51.  By virtue of Clause 5.03, the debt was extinguished by the Deposit and hence there was no debt to ground the SD against Mr Yuan.

52.  From 15 September 2018 onwards, mesne profits and judgment interest continued to accrue.  Since the Deposit was not forfeited and the deeming provision continued to apply, it is arguable that an SD could only be issued when the Deposit was exhausted.  It was not issued and section 6A of the Ordinance did not apply.  The Petitioner did not have proof of Mr Yuan’s inability to pay this part of the debt and so the Petition has to be dismissed.

53.  The Foo Judgment and the conclusions in paragraphs 50-52 above were arrived at solely based on evidence from the Petitioner, treating the Default Judgment, the date of the recovery of vacant possession, the figures in the SD and those in the Petition as correctly computed.

54.  At the Previous Hearing, neither Clause 5.03 nor the construction placed by Mr Foo’s former counsel on it were brought to the attention of this court.

55.  This hearing was not about Mr Yuan re-running his arguments in a more forceful or attractive way.  The Deposit went to the root of both SDs and Petitions.  The court should not ignore the arguments of a co-guarantor.  The result would only be totally irrational and an affront to justice if one of the joint and several guarantors was found to be free from the debt whereas another becomes bankrupt.  The bankruptcy order ought not to remain in force.

F.    THE 3 QUESTIONS POSED BY ANTHONY CHAN J

56.  The answers to the 3 questions would not change the outcome of the Review.  I summarize those answers as follows:

(1)     Issue 1: The Default Judgment was described as Final and Interlocutory Judgment.  It was interlocutory in nature as damages and costs were to be assessed.  However, it was a final judgment as regards mesne profits, the monthly rate of HK$2,000,000 for which was same rate as the rent under the tenancy agreement. The debt due under the Default Judgment was for a liquidated sum that could be ascertained by simple calculation.  It could support the Petition. Hong Kong Civil Procedure, Vol 1, paragraph 13/4/6.

(2)     Issue 2: Mr Lok has confirmed that the debt stated in the Petition was the same as that in the SD.

(3)     Issue 3: It was open for the Petitioner to seek a bankruptcy order with an underlying debt which included mesne profits from the date of the SD and date of Petition.

G.   CONCLUSION

57.  For the reasons given in paragraphs 53-55 above, I find there to be exceptional circumstances for review.  I review myself and set aside the bankruptcy order on the ground that there was no debt due as at the date of the SD.  Alternatively, there is a bona fide dispute of the validity of the Default Judgment on substantial grounds in view of the deeming provision in Clause 5.03.

58.  As for costs, if Mr Yuan had produced evidence at the Previous Hearing, his Petition would have been adjourned to be heard with Mr Foo’s Petition at this hearing.  The Previous Hearing (as a call over) could not have been saved.  Costs would have been in the cause.

59.  The costs of the Petition should be borne by the Petitioner.  The costs of the summons should be borne by Mr Yuan himself.  The supporting affirmation that dealt with the evidence in opposition to the Petition should form part of the costs of the petition.

60.  On a nisi basis, I make an overall costs order, awarding 80% of the costs of the Petition to Mr Yuan to be summarily assessed on the papers without a hearing.  Mr Yuan shall file and serve his statement of costs by 12 February 2020.  The Petitioner shall file and serve its grounds in opposition by 19 February 2020.

61.  I thank counsel for their assistance.