RE: CHAN CHUN HEI DAVID and EX PARTE: CHAN KAM TSUEN WALTER

HCB 2610/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY PROCEEDINGS NO. 2610 OF 2001

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J U D G M E N T

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1. This is a petition based on a judgment debt in HCA No. 12972 of 1995 which was consolidated with HCA No. 1678 of 1997. Judgment in the consolidated actions was given by Hartmann J on 19 June 1998. The total amount of the judgment debt, interest thereon, taxed costs and interest on taxed costs came up to HK$1,978,559.74.

2. Subsequent to the judgment, the petitioner has obtained charging orders over various properties of the debtor including a property at Flat A, 9th Floor, Way Man Court, Nos. 50 and 52 Village Road, Hong Kong ("the Way Man Property"). As a result of an order of sale made in respect of one of the properties being the subject of the charging orders, the debt of the debtor was reduced and the outstanding balance as at present is in the sum of HK$1,191,434.74. It is in respect of this outstanding balance that a statutory demand was served by the petitioner on the debtor by post on 20 October 2000 and by advertisement in a newspaper on 7 November 2000. On 23 April 2001, the petition herein was filed and it was served on the debtor personally on 15 June 2001. In the amended petition filed on 4 September 2001, the petitioner has stated that in the event of a bankruptcy order being made, he is willing to give up his security over the Way Man Property and other properties for which he has obtained charging orders.

3. For the background matters giving rise to this petition, I refer to my Reasons for Decision handed down on 11 September 2001 in respect of the debtor's application for security for costs which I have dismissed.

4. Mr Emerson who appeared for the debtor today told the Court that he has nothing further to add to the submissions that had already been made to the Court on previous occasions by himself and by counsel. In summary, the debtor's only ground for opposing the petition is that he has brought proceedings against the executrix of his mother's estate in another action being HCA No. 16978 of 1999, seeking a declaration that the notice of severance executed by his mother who severed her joint tenancy with the debtor over the Way Man Property was invalid. Judgment in that action has been reserved. If the debtor is successful in that action, he would own the entire property in the Way Man Property instead of merely a half share and he has proposed to sell this property to discharge his debt to the petitioner.

5. As I have indicated at the hearing of the debtor's application for security for costs, I fail to see why the petitioner should wait until the outcome of the judgment of the debtor against the executrix. The petitioner is not a party to that litigation. He has obtained a judgment against the debtor more than three years ago. I see no basis for refusing the petitioner the relief sought in his petition.

6. In the circumstances, I make a Bankruptcy Order with costs to the petitioner, including the costs reserved on 8 October 2001.