RE LIMBU DAL BAHADUR

HCB 917/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 917 OF 2016

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D E C I S I O N
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1.  I have before me a petition by Mr Limbu Dal Bahadur for his own bankruptcy presented on 11 February 2016.

2.  The petition is opposed by Ms Rai Niva who is the ex-wife of Mr Limbu.  They were divorced in around 2013 with the question of ancillary relief only recently resolved by the Family Court in a judgment dated 27 January 2016.

3.  The affirmation of Mr Limbu in support of the petition exhibited an amended statement of affairs, and in particular a list of unsecured creditors containing four entries.

4.  The first is the debts of $88,000 and $14,000 said to be owed to his ex-wife, Ms Rai.  There is no dispute that these amounts are sums due under the lump sum and periodic maintenance payments under the order of the Family Court.  As such, these debts should, in my view, be excluded from consideration for present purposes because they generally fall outside the bankruptcy regime, in the sense that they are not debts on which the court would generally make a bankruptcy order; they are not provable in bankruptcy and they are not discharged at the end of bankruptcy: see, for example, Re Lo Man Hong [2013] 4 HKLRD 126; and Re Cheuk On Ching [2004] 3 HKC 192.  In any event, Ms Rai, who is the creditor in respect of this entry, is opposed to the petition.

5.  The other three entries are said to be personal loans borrowed by Mr Limbu.  Items 2 to 3 are said to be loans from the friends of Mr Limbu, and item 4 is said to be a loan from his younger brother. However, there are no documents tendered as evidence or proof of such loans nor have any details been given.  Further, it has only transpired during Ms Rai’s address to the court that the creditor in respect of item 3 has apparently recently passed away.

6.  There is an issue about Mr Limbu’s credibility as far as his financial affairs are concerned.  The Family Court in the judgment that I have already mentioned has recently, after a trial lasting apparently for 5 days, rejected Mr Limbu’s evidence about certain loans he has borrowed and also about his assets and earning capacity generally: see, for instance, paragraphs 35 and 65 of that judgment.

7.  In any event, on Mr Limbu’s own explanation to me, those loans were by agreement only to be repaid when he had the necessary funds.

8.  In all the circumstances, therefore, I am not satisfied and Mr Limbu has not proved to the requisite standard that he has present liabilities exceeding his assets which he is unable to repay and which can properly found a petition for bankruptcy.

9.  For these reasons, the petition will be dismissed

(Submissions re costs)

10.  I order that the Official Receiver’s costs in the sum of $5,300 be deducted from the deposit.