RE TAM MEI KAM

HCB 3777/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. 3777 OF 2011

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D E C I S I O N

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1.  This is an application by the bankrupt Madam Tam for an order to stop the trustees of her bankruptcy from arguing that a lump sum maintenance that may be ordered in her favour during the currency of her bankruptcy may be after-acquired property pursuant to section 43A of the Bankruptcy Ordinance, Cap 6.

2.  As a matter of logistics, this application, which was issued on 23 February 2016, is unnecessary.  Madam Tam has applied for maintenance including a lump sum maintenance in HCMP 2981/2004.  No date was fixed on 23 February or has now been fixed for the hearing of that application.

3.  Subject to rude awakenings, Madam Tam is expected to be discharged from her bankruptcy no later than 25 April 2016.

4.  It could be anticipated on 23 February and can still be anticipated that it would be extremely unlikely that a lump sum maintenance would be ordered in HCMP 2981/2004 in favour of Madam Tam on or before 25 April 2016.  Hence, it was unlikely as at 23 February and still is unlikely that there would be an occasion for the trustees to argue that the lump sum maintenance is after-acquired property.  This application should not have been taken out for this reason alone.

5.  Furthermore, Madam Tam’s application is for an order on a hypothetical situation, namely the court ordering a lump sum maintenance in her favour during her bankruptcy.  Such an order may or may not be made.  Hence, this application is also ill advised as it seeks an order to cover a hypothetical situation.  If a lump sum maintenance should indeed be ordered in her favour during her bankruptcy and the trustees should then seek to appropriate the lump sum on the basis that such is after-acquired property, then Madam Tam and the trustees can argue the matter out then.  But there is no such order yet and Madam Tam’s application is pre-mature.

6.  For these reasons, I dismiss Madam Tam’s application.  I also make a costs order nisi that Madam Tam do pay the trustees the costs of this application to be taxed.