RE LEE SIU FUNG, SIEGFRIED

HCB 345/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY PROCEEDINGS NO. 345 OF 2001

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Re:  Lee Siu Fung, Siegfried (a Bankrupt)

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J U D G M E N T

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1.  On 8 May 2001, a bankruptcy order was made against Mr Lee Siu Fung Siegfried (“the Bankrupt”).  As this was the first occasion on which he had been made bankrupt, he could ordinarily have expected to be automatically discharged from bankruptcy after four years (the “relevant period”), on 8 May 2005, pursuant to sections 30A(1) and (2) of the Bankruptcy Ordinance (Cap. 6).  Mr Alan Chung Wah Tang (“the Trustee”) was appointed as one of his trustees in bankruptcy on 19 September 2002.

2.  As a result of his administration of the Bankrupt’s estate, the Trustee came to the view that the conduct of the Bankrupt had been unsatisfactory in a number of respects.  On 5 May 2005, three days before the Bankrupt would have been automatically discharged, the Trustee made an application pursuant to sections 30A(3), (4) and (10) of the Bankruptcy Ordinance.  The application was in two parts.

3.  The first part sought a declaration as to the length of time for which the relevant period had not run.  This was based on section 30A(10)(b)(i) of the Ordinance, which provides that where a bankrupt leaves Hong Kong after his bankruptcy commences without notifying his trustee of his itinerary and contact details, the relevant period shall cease to run while he is absent from Hong Kong and until he notifies his trustee of his return.  The Trustee alleged that the Bankrupt, who appears to have taken up residence and employment in Beijing after his bankruptcy, had failed to comply with the requirements of this provision, and sought the court’s determination as to the length of time for which the relevant period had not run.  On the Trustee’s case, a very substantial part of the four years that had elapsed since the making of the bankruptcy order did not count towards the relevant period.

4.  The second part of the application was based on sections 30A(3) and (4) of the Ordinance, which enable a trustee or a creditor to object to the automatic discharge of a bankrupt on one or more of the grounds specified in section 30A(4).  Where the court is satisfied that the objection is valid, it has a discretion to order that the relevant period shall cease to run for a period of up to a further four years (in the case of a first-time bankrupt), thus extending the period of the bankruptcy to up to eight years.  The Trustee contended that the automatic discharge of the Bankrupt should be suspended for the maximum period allowable – four years, or alternatively for such lesser period as the court might think fit.  The Trustee relied on no fewer than eight grounds in support of this part of his application.  Details of the Trustee’s complaints were set out in his affirmation of 22 April 2005 made in support of his application.

5.  On 23 June 2005, the Trustee applied for and obtained from Master Kwang an order that in effect directed the first part of his application to be dealt with first, while the second part of his application was adjourned sine die with liberty to restore.  This approach was entirely understandable, since depending on the outcome of the first part of the application, it might be premature (possibly very premature) to deal with the second part of the application.  If the relevant period had not run for a period of time, so that the time for automatic discharge had not arrived, events that might occur in the remaining part of the relevant period might have a bearing on the second part of the application.  The Bankrupt’s behaviour might give rise to further grounds for complaint, or conceivably, might have improved to such an extent as to bear on the outcome of the second part of the application.

6.  Thereafter, the Trustee filed two further affirmations in support of his application, with the Bankrupt filing an affirmation in opposition to it.  As might be expected having regard to the directions which had been given, these affirmations focussed on the question of the Bankrupt’s absence from Hong Kong, and on whether or not he had informed the Trustee of his travel plans and contact details, although the Bankrupt (who was not legally represented at that stage) did touch, albeit briefly and in general terms, on some of the other complaints which had been made by the Trustee, which would arise in respect of the second part of the Trustee’s application.

7.  The first part of the Trustee’s application was heard before me on 1 June 2006, it having been adjourned once to await the outcome of a challenge to the constitutionality of section 30A(10)(b)(i) in a pending appeal before the Court of Appeal in other proceedings (Re Chan Wing Hing, CACV 153/2005).  At the hearing, I was told that the Court of Appeal’s decision in Re Chan Wing Hing had been further appealed to the Court of Final Appeal, where a hearing of the appeal was imminent.  In the event, by its judgment in FACV Nos. 7 and 8 of 2006 handed down on 20 July 2006, the Court of Final Appeal declared section 30A(10)(b)(i) of the Ordinance unconstitutional, as being a disproportionate infringement of the right to travel provided for by Article 31 of the Basic Law and Article 8(2) of the Bill of Rights.

8.  Following submissions by the parties as to the appropriate orders to be made in the light of the Court of Final Appeal’s judgment, I gave leave to the Trustee to withdraw the first part of his application, and reserved the costs in relation thereto for further consideration after the final disposal of these proceedings, for the reasons I gave in my judgment dated 25 August 2006.

9.  At that time, the Bankrupt had submitted that the whole application should be dismissed.  I declined to do so, as the merits of the second part of the Trustee’s application had not yet been dealt with.  Instead, I stated (in paragraph 17 of my judgment) that “[s]hould the Trustee wish to pursue the relief sought by paragraph 2 of the summons, he may take steps to have it restored for hearing, so that directions for its further progress may be given”.

10.  However, the Trustee took no steps to restore the second part of his application for hearing.  On 9 January 2007, the Bankrupt wrote to the trustee’s solicitors pointing out that the Trustee had done nothing to prosecute the application, complaining that it was an abuse of the court’s process to leave the application hanging over him without progressing it, and asking to be told what the Trustee’s position was.  On 31 January 2007, the Trustee’s solicitors provided a holding response, in which they said that they were taking the Trustee’s instructions and would revert to the Bankrupt in due course.  However, no further response was ever provided to the Bankrupt.

11.  On 2 February 2008, just over one year later, the Bankrupt took out the present application, seeking to strike out the Trustee’s summons of 5 May 2005 on the basis that either (i) it was an abuse of process, as the Trustee had demonstrated that he had no intention of pursuing it, or (ii) the Trustee had been guilty of inordinate and inexcusable delay in prosecuting it, and that the Bankrupt had thereby been prejudiced.

12.  On 17 April 2008, the Trustee filed his fourth affirmation in these proceedings, in opposition to this application.  Nowhere in that affirmation does there appear any explanation of the reasons for the Trustee’s failure to restore his summons for hearing.  All that is said as to this is that it is the Trustee’s understanding that as the second part of the summons had been adjourned sine die with liberty to restore, either party could have restored it when they thought it appropriate to do so, and that the Bankrupt was also guilty of inaction in failing to take such steps himself.  Much of the affirmation was devoted to a narration of further material that goes to the merits of the Trustee’s application, setting out a litany of complaints about the Bankrupt’s conduct, alleged lack of cooperation and apparent failure to disclose assets which the Trustee believes to be owned or controlled by the Bankrupt.  While some of these matters expanded upon complaints already made in the Trustee’s first affirmation dated 22 April 2005, there were a number of new matters that were raised for the first time.  The Trustee also stated that he had spent the period since the resolution of the first part of his summons carrying out further investigations into the Bankrupt’s conduct and affairs, and that, in the light of his investigations, expected to be in a position to take further, more concrete, action against the Bankrupt and third parties, within the next six months to one year.

13.  Finally, on 23 May 2008, some 11 days before the hearing, the Trustee’s solicitors wrote to those acting for the Bankrupt, stating that the Trustee wished to restore the second part of his summons for hearing, and asking that the Bankrupt’s solicitors attend to fix a date for such a hearing.  The Bankrupt’s solicitors objected to this being done, and in the event, I directed that no date for such a hearing should be fixed until after the resolution of the Bankrupt’s striking out application.

14.  Mr Lam, appearing for the Bankrupt, submitted that the evidence disclosed plainly that the Trustee had no real intention of restoring the second part of his application for hearing, and that to leave the application “on hold” indefinitely was a clear abuse of process, in the sense identified in Grovit v Doctor [1997] 1 WLR 640.  In that case, Lord Woolf said (at pages 647G-648A):-

“… the appellant’s inactivity in the libel action for a period of over two years … constituted an abuse of process.  The courts exist to enable parties to have their disputes resolved.  To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process.  Where this is the situation the party against whom the proceedings is brought is entitled apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action.  The evidence which was relied upon to establish the abuse of process may be the plaintiff’s inactivity.  The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution.  However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James [1978] AC 297.  In this case once the conclusion was reasoned that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings when there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings.”

15.  Grovit v Doctor was considered by the Court of Appeal in New China Hong Kong Group Limited v AIG Asian Infrastructure Fund LP [2005] 1 HKLRD 383.  In that case, the Court of Appeal accepted that maintaining an action without any intention of carrying it to trial would amount to an abuse of the process that would justify its being struck out, but cautioned against invoking the principle over-readily, saying that it should be used in effect as an alternative to striking out for want of prosecution, and that something more than simply inordinate and inexcusable delay would usually be required, and that the case would have to be an exceptional one for this power to be invoked.

16.  As an alternative basis for the striking out application, Mr Lam submitted that this was an appropriate case for striking out on the basis of inordinate and inexcusable delay, under the principles laid down in Birkett v James (supra).  He submitted that in this case, the delay (of nearly two years since the first part of the Trustee’s summons was disposed of) was both inordinate and inexcusable, and that the Bankrupt had suffered prejudice as a result of it, not least by the continuation of his state of bankruptcy for a period of over three years from the date on which he would otherwise have obtained his automatic discharge, by reason of the interim suspension of the relevant period that was ordered, as is commonly done in such cases, pending the resolution of the objection to automatic discharge pursuant to sections 30A(3) and (4) of the Ordinance.

17.  Mr Maurellet, appearing on behalf of the Trustee, opposed the application to strike out on the following grounds:-

(1)     The principles regarding striking out of proceedings on the grounds of abuse of process or want of prosecution do not apply to bankruptcy proceedings of the nature brought by the Trustee, because the Trustee’s application is a proceeding that involves the public interest, and cannot be regarded as being private litigation between opposing parties as would be the case for ordinary civil claims.

(2)     There was no evidence of any real prejudice to the Bankrupt that had been caused by the delay on the Trustee’s part in pursuing his objection to automatic discharge.

(3)     The Bankrupt’s conduct, as described in the Trustee’s evidence, was so seriously unsatisfactory that this was an overwhelming case for the imposition of a long, and probably the maximum, period of suspension of the discharge of the bankruptcy order made against the Bankrupt.

(4)     The public interest required that the Trustee’s application be heard and determined, even at this late stage.

18.  Although Mr Maurellet initially appeared to put his first point in absolute terms, so that abuse of process or want of prosecution should never be grounds for striking out an application of the nature brought by the Trustee, towards the end of his submission he modified his position slightly, suggesting that the fact that the proceedings involved the public interest and were not simply private litigation was a factor that the court should take into account in the exercise of its discretion.

19.  I would, of course, accept that an application of the sort brought by the Trustee against the Bankrupt is not ordinary private litigation, and that there is a strong public interest element in such applications.  This has been made clear in a number of previous cases.  Thus, for example, in Fred Lee v Leung Chin Yeung [2001] 1 HKC 164, Kwan J said (at p.182I) that:-

“It is important to bear in mind that bankruptcy proceedings are not private litigation between individual parties.  There is a wider public interest involved in the proper administration of the bankrupt’s estate in accordance with bankruptcy law …”

20.  In Re Wong Hing Wai Michael (unreported, HCB 26018/2002, Barma J, 12 October 2007), I described the purposes of sections 30A(3) and (4) in the following terms:-

“… one of its main purposes is to provide the bankrupt with an incentive to cooperate with his Trustees, and to comply with his obligations under the Ordinance.  … Other purposes that are served by the power to suspend automatic discharge would appear to me to include the protection of the public, where there is reason to think that the reintroduction of the bankrupt into ordinary commercial life might pose risks or dangers against which lenders and others who might have dealings with him should be protected, and, in appropriate cases, as a mark of disapproval of the way in which the bankrupt has conducted his affairs whether before or after his bankruptcy.”

21.  These observations, and other observations to similar effect in other cases, demonstrate that bankruptcy proceedings, and applications to object to automatic discharge in particular, have a strong public interest element to them.

22.  That said, however, it is also clear from a number of recent authorities that such applications should be made only after careful consideration, and that it is necessary to bear in mind also the interests of the bankrupt, in the light of the emphasis that the Ordinance now places on the rehabilitation of the bankrupt.  In this regard, it is desirable for any intended objection to automatic discharge to be made at a reasonably early stage.  I think that it also follows that such an objection should be proceeded with with reasonable despatch.

23.  So far as the desirability of making the application at an early stage is concerned, Lam J in Re Liu Man Hoo (supra) made a number of observations on the timing of the trustee’s application in that case, and on the practice of granting interim orders suspending the running of the relevant period pending the resolution of such applications (see paragraphs 72 to 86 of his judgment).  He pointed out that in general, a trustee should be in a position to decide whether or not to make an application to object to automatic discharge well before the expiry of the usual four-year period of bankruptcy, even in a case in which the objection is based on post-bankruptcy conduct of the bankrupt, and that the practice of granting interim suspension orders, which has become commonplace when objections to automatic discharge are made, can result in injustice to the Bankrupt, most particularly in cases in which no suspension of automatic discharge is ordered at the end of the day.

24.  Even in cases in which automatic discharge is suspended, it is possible that an interim order may result in the bankrupt remaining in a state of bankruptcy for longer than is actually justified (as was the case in Re Wong Hing Wai Michael – see paragraphs 72 to 74 of my judgment).

25.  I think that it is clear from these observations that it is incumbent on a trustee who makes an application objecting to the automatic discharge of the bankrupt to proceed with that application with due expedition.  In many cases, undue delay in the making of the application or its prosecution will result in unfairness to the bankrupt, as he may be denied his discharge until some time after he should have obtained it.

26.  I think that it is also necessary to consider the reason why it has proven to be necessary to grant interim suspension orders in such cases.  The need for such orders arises because, in the absence of an order suspending the running of the relevant period, automatic discharge takes place four years after the making of the bankruptcy order.  Once automatic discharge has taken place, there is no mechanism for resurrecting the bankruptcy so as to extend it by making an order under sections 30A(3) and (4).  Thus, where an application objecting to automatic discharge is made, but cannot be determined prior to the end of the normal four year bankruptcy period, it has proven necessary for the courts to make interim orders that suspend the automatic discharge of the bankrupt pending the resolution of the trustee’s application.  Although, as Lam J pointed out in Re Liu Man Hoo, there might be some scope for argument as to the validity of such orders, this was not a point that was addressed in this application, and I propose, like Lam J, to proceed for present purposes on the assumption that the court has jurisdiction to make such orders.

27.  However, it is important to note the purpose of such an interim order.  It is granted so that automatic discharge does not occur until after the objection has been determined so as to render the application otiose or pointless.  It is not granted with a view to extending the bankruptcy generally – that must depend on the outcome of the application to suspend automatic discharge after it has been considered on its merits.  It follows, I think, that the interim order should not be left in place for longer than is reasonably necessary to enable the substantive objection to automatic discharge to be determined.

28.  With these considerations in mind, I see no reason why the courts should not regulate their process in relation to such applications by making orders striking them out in appropriate cases.  Of course, such cases will be exceptional, and it will be rare for the court to strike out an objection to automatic discharge on the grounds that it is (or has become) an abuse of the process, or because it has been the subject of inordinate and inexcusable delay.  It will be necessary to consider the circumstances of each case with care, to avoid being over-ready to dispose of objections to automatic discharge on this basis.  In principle, however, I think that it is open to the court to strike out such an application where this is called for by the circumstances of the case.

29.  Mr Maurellet’s other points are, I think, all matters that should be taken into account, and given such weight as is appropriate, when considering whether there has been such delay as to amount to an abuse of the process of the court, or as would justify the striking out of the objection to automatic discharge because of the delay and prejudice to the Bankrupt that has occurred.

30.  I consider first whether the delay and other circumstances are such as to show that the Trustee has been guilty of an abuse of the court’s process.

31.  So far as the period of delay is concerned, this extends from late August 2006, when the first part of the Trustee’s application was disposed of, until at least 23 May 2008, when the Trustee for the first time thereafter indicated that he wished to proceed with his objection to the Bankrupt’s automatic discharge.  This is a delay of some 21 months.  Nothing in the evidence filed by the Trustee suggests that there was any matter connected with the application itself that caused or contributed to this delay.

32.  Nor is there anything in the Trustee’s evidence that seeks to excuse or explain the delay.  As I have noted, the Trustee’s evidence in opposition to the striking out application deals with other matters which the Trustee says should be taken into account in opposition to the striking out application.

33.  It does not seem that the failure to proceed with the application was due to a lack of funds on the Trustee’s part.  The Trustee’s affirmation does not anywhere suggest this.  The only reference to any funding difficulty that appears in the Trustee’s evidence is the statement that there was a temporary funding problem that hindered the Trustee in his continuing investigations into the affairs of the Bankrupt for a short period.  However, the extensive investigations that the Trustee appears to have undertaken since August 2006 show clearly that any such difficulty could only have been a temporary in nature, and were not a factor for very long.

34.  I am bound to say that the content of much of the Trustee’s affirmation demonstrates what appears to be a fundamental misconception on the Trustee’s part as to the position in the period during which the interim suspension order is in force.  The Trustee appears to have treated the interim suspension order as if it were an order for suspension of the automatic discharge of the Bankrupt made after a determination of the objection on its merits, simply continuing with his investigations without any apparent appreciation of the need to bring his objection to a hearing.

35.  More seriously, there is no indication in the Trustee’s affirmation of any actual intention to progress the objection application.  The only steps that the Trustee says he envisages taking in the foreseeable future are further steps in the administration of the bankruptcy, such as an examination of the Bankrupt and third parties, and even these are said to be matters which the Trustee will only be ready to pursue in some six months to a year’s time – but in a year’s time, the Bankrupt would be on the verge of obtaining his discharge even if his automatic discharge had been suspended for the maximum period possible, as by then a further four years would already have elapsed.

36.  Against this background, I do not think any weight should be placed on the Trustee’s intimation that he is now ready to proceed with the objection to automatic discharge.  That statement comes very late in the day, and appears to have been something of an afterthought.  His application clearly is not yet ready for hearing.  Although the Trustee has filed considerable evidence (both in 2005 and recently) dealing with the grounds on which he relies, the Bankrupt has yet to deal with such grounds in any meaningful way.  The Trustee’s suggestion, made both in his affirmation and in submissions made on his behalf, that the Bankrupt has done no more than to make a series of general denials, which should be given little weight, is, to my mind, without merit.  The only evidence that the Bankrupt has filed in opposition to the Trustee’s substantive application was filed at a time when he was unrepresented, and more importantly, at a time after the direction had been given (on the Trustee’s application) for the first part of the Trustee’s application to be dealt with first.  There was thus no need for the Bankrupt to have dealt in any detail with the Trustee’s allegations made in support of the second part of his application.

37.  If the Trustee’s application were to be permitted to proceed, it would be necessary for the Bankrupt to file his evidence in response, after which the Trustee might well wish to file evidence in reply.  This would require at least a further six weeks, after which the matter would have to be listed for hearing.  It is unlikely that it could be resolved much before the end of this year, or more likely in the first part of 2009, by which time the Bankrupt will have had his bankruptcy extended in a de facto sense for over three and a half years.

38.  The Trustee has (as I have noted earlier) also suggested that the Bankrupt has been guilty of inaction as well, as he could have sought the restoration of the Trustee’s application.  This too, is an unmeritorious suggestion.  Although theoretically either party could have applied for restoration of the proceedings, it should have been clear from the last paragraph of my earlier judgment that it was the Trustee who had been told to take steps to restore it if he wished to do so.  In any case, The Bankrupt was not wholly inactive – he did write to the Trustee’s solicitors in January 2007, asking what the Trustee’s position was, and protesting at the delay in progressing the Trustee’s application.  I do not see that he should realistically have been expected to have himself sought its restoration for hearing.

39.  To my mind, the Trustee’s evidence clearly demonstrates that the Trustee had, by some time after August 2006, no real intention of proceeding with his application, and certainly not with anything like reasonable despatch.  Rather, he appears to have assumed that he was entitled to carry on with his investigations and any other matters which he regarded as more important, without taking any steps to progress his application.  His affirmation indicates that he has failed to have any regard to the fact that his position as trustee continued only by reason of the interim order which had been granted for the purpose of enabling his objection to be heard.  While it may be that a trustee may think it right to carry on with investigations in the period leading up to the hearing of an application to suspend automatic discharge and may be entitled to do so, I do not think that it can be right for him to do so without taking any steps to bring that application to a hearing and conclusion, so that the Bankrupt’s position can be made certain reasonably promptly.

40.  Thus, the delay that has occurred, combined with the absence of any attempt on the part of the Trustee to explain or excuse it and his carrying on of his investigations into the Bankrupt’s affairs without regard to the need to proceed with his own application, do amount, in my view, to an abuse of the court’s process by the Trustee.  It involves the use of the interim order granted by the court for purposes for which it was not intended.  This is not a case of substantial delay without more, but one in which the delay has been utilised in a way which involves a misuse of the court’s process and the orders granted by it.  It is clearly an exceptional case, and as such, one in which the power to strike out on the basis identified in Grovit v Doctor is available to the court.

41.  Mr Maurellet also relied upon my observation (in Re Law Pak Wai (unreported, HCB 10680/2002, Barma J, 7 March 2008) that the court will rarely decline to proceed with an application for suspension of automatic discharge on the basis of an alleged abuse of process by the trustee.  However, the circumstances in that case were very different – the abuse alleged was in relation to the manner in which the trustee had brought many such applications without considering, as he should have done, whether or not each of the applications in fact merited any suspension of automatic discharge.  That is, I think, a very different situation from that which is presented here, where the abuse relates to the manner in which the application has been made and pursued (or, more accurately, not pursued).

42.  It also seems to me that there has been an inordinate and inexcusable delay on the part of the Trustee in pursuing his application.  The delay of 21 months is clearly inordinate.  In the absence of any explanation or excuse proffered by the Trustee (and there is none) it is just as clearly inexcusable.

43.  As to whether or not the Bankrupt has suffered prejudice, I am not persuaded by Mr Maurellet’s submission that he has suffered no identifiable prejudice.  While it may be that there is no prejudice to the Bankrupt in the sense that evidence which may have been available to him is no longer available, it does seem to me that the prolongation of his bankruptcy, without any determination that his automatic discharge should be suspended is itself prejudicial, since he remains under the disabilities of a bankrupt throughout the time that the interim order is in force.

44.  Thus, on this basis also, I am satisfied that the Trustee’s application is susceptible to being struck out.

45.  Are there other countervailing factors that should be taken into account which suggest that the court should exercise its discretion against striking out the Trustee’s application?

46.  This, I think, is where Mr Maurellet’s other points come in.  I have already dealt with the argument that there has been no prejudice to the Bankrupt in paragraph 43 above.  It is, in any event, not a necessary factor given that I have concluded that there has been an abuse of the court’s process by the Trustee.

47.  As for Mr Maurellet’s suggestion that the Bankrupt’s conduct in the course of his bankruptcy has been such as to merit a very long, and perhaps the maximum permissible, suspension, it seems to me that it is important to bear in mind that the court has, through no fault of the Bankrupt’s, not yet considered the application for suspension of automatic discharge on its merits.  That being so, it cannot be assumed that the Trustee’s allegations will all be established at the end of the day.

48.  However, even assuming that every one of the litany of complaints that is made against the Bankrupt is established, the maximum suspension that could be ordered would be four years.  The actual suspension that might be ordered would depend on the grounds for suspension that are made out, and on any explanation that the Bankrupt might have for them.  Realistically, any suspension that might be ordered in this event would be likely to be for between three and four years.  But as I have explained, by the time that the application is heard and determined, the Bankrupt will already have gone through a de facto suspension of his discharge for over three and a half years.  In these circumstances, I do not think that this is a particularly significant factor.

49.  Finally, as for the suggestion that the matter should proceed, notwithstanding the delay, because the public interest calls for it, the argument appears to proceed on the basis of the seriousness of the Bankrupt’s alleged failings.  This is simply another way of putting the point which I have just dealt with.

50.  Further, given the delay which has already taken place, and the fact that the de facto suspension which the Bankrupt has already been subjected to is already in excess of three years, I do not think that there would be any particular public interest to be served in permitting this matter to proceed simply because the Trustee has now, for reasons which he has not thought it necessary to explain, apparently decided that he wishes and is ready to proceed with his application.

51.  Thus, I do not think that the other factors adumbrated by Mr Maurellet assist the Trustee.  I am therefore satisfied that it would be appropriate, in the circumstances of this case, to bring the Trustee’s application to a conclusion by striking it out on the bases explained above (although it was not, I think, an abuse of the process when it was first launched).  In taking this course, I stress the exceptional nature of this case, in which there has been very substantial delay, coupled with a lack of explanation or justification, and I do not suggest that such applications should be made, or will be granted, as a matter of course.

52.  So far as costs are concerned, I think that the costs of this application by the Bankrupt should follow the event.  However, given that I am not of the view that the Trustee’s application was an abuse from the outset, I do not think it would be appropriate to require the Trustee to bear the costs of the rest of his application, in respect of which the Bankrupt will, in any event, have incurred little costs, as he was not, until recently, legally represented.  I shall  therefore make the following costs orders nisi.  The costs of and occasioned by this application are to be paid by the Trustee to the Bankrupt, to be taxed on the party and party basis if not agreed.  So far as the costs of the Trustee’s application, which has now been dismissed, are concerned, there will be no order as to costs.