XCHRX LINCOLN SEREJO VENANCIO v. CWT BEHEERMAATSCHAPPIJ BV

HCSD 14/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS

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D E C I S I O N

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1. This is an application to set aside a statutory demand. The statutory demand is based on a guarantee of a debt. The guarantee was given to an entity trading as "Carlson Wagonlits". In an affidavit of Mr. Ian Roger De Witt, sworn on 12th February 1999, Mr. De Witt deposes that Carlson Wagonlits was the trading name of a company known as "Compagnie Internationale Des Wagonlits Et Du Tourisme" which I shall call "CIWT" for short.

2. The debt is itself the subject matter of a writ action. This was an action which was taken out in April 1997 and on which Judgment has been entered.

3. The Plaintiff in that action was a company called "Compagnie De Wagonlits Et Du Tourisme" which I shall call "CWT" for short. The Respondent now asserts that that was a misnomer because there is no company simply called CWT and it should have been called CIWT.

4. But the issue in the present case is that the entity which issued the statutory demand is a company called "CWT-B" which is a different entity from CIWT.

5. On the face of the evidence so far, the company claiming the benefit of the debt CIWT or CWT is different from the company claiming to have the benefit of the guarantee on the basis of which the statutory demand has been issued, that is CWT-B. On that basis, there would have been a sufficiently triable issue for the statutory demand to be set aside.

6. However, Mr. De Witt has exhibited a transfer agreement governed by Dutch Law and it is asserted on behalf of the Respondent that on that basis, both the debt and the guarantee should have been transferred by CIWT to CWT-B, and that the issue of the writ in the 1997 action on behalf of CIWT was in error. However, there is no evidence from CIWT (which is a different entity) that the naming of CIWT as the Plaintiff in that writ was in error, or that it makes no claim to the benefit of the debt. I should add that CIWT is, of course, not a party to the present proceedings.

7. Mr. Carolan acting for the Respondent has asked for an adjournment of fourteen days for further evidence to be filed to explain the writ action. Mr. Smith acting for the Applicant says that the court should not exercise this discretion to give an adjournment for that sort of evidence to be filed because his solicitor had asked previously for clarification of this issue, and secondly, because he said the evidence that may ensue may be different from that submitted by Mr. Carolan in relationship to the first point.

8. I accept that there has been correspondence between the solicitors. On the other hand, it would appear that that correspondence seemed to deal only with the evidence on economic duress, and secondly, whether that evidence may or may not be different remains to be seen.

9. I can see no prejudice to the Applicant, other than on a matter of costs, if this matter were to be adjourned to enable the Respondent to have leave to file further evidence, and in the exercise of my discretion I would give the Respondent leave to file further evidence within fourteen days and would adjourn this hearing to a date to be fixed not before twenty-one days from today.