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CACV 272/2004
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 272 OF 2004
(ON APPEAL FROM HCA 5191 OF 1998)
BETWEEN
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BRAND FARRAR BUXBAUM LLP.
(formerly known as ARNBERGER, KIM,
BUXBAUM & CHOY)(A FIRM) |
Plaintiff |
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and |
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SAMUEL-ROZENBAUM DIAMOND LIMITED
and SAMUEL-ROZENBAUM DIAMOND
(1992) LIMITED |
Defendants |
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and |
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SAMUEL-ROZENBAUM HK LIMITED |
Claimant |
Before : Hon Cheung JA and A Cheung J in Court
Date of Hearing : 28 September 2005
Date of Decision : 28 September 2005
Date of Reasons for Decision : 30 September 2005
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REASONS FOR DECISION
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Hon Cheung JA (giving reasons for decision of the court) :
Leave to appeal
1. Mr. Buxbaum applied for leave to appeal against our judgment of 24 March 2005 to the Court of Final Appeal. However, one day before the hearing he submitted a written application applying to stay his application on the ground that he had made an application on 23 September 2005 for legal aid.
2. He did not appear at the hearing and we dismissed both of his applications. We would in any event have dismissed his application.
Effect of bankruptcy order
3. Mr. Buxbaum is a bankrupt. A bankruptcy order was made against him on 12 April 2005. The Official Receiver had by letter dated 16 September 2005 informed the court of this order and that he has not given any consent to Mr. Buxbaum to lodge the present application. The Official Receiver is not prepared to take up the case and he asked for Mr. Buxbaum’s leave application to be dismissed. The court dispensed with the attendance of the Official Receiver at the hearing.
4. By reason of sections 12(1) and 58(1) of the Bankruptcy Ordinance (Cap. 6) the property of a debtor is vested in the Official Receiver upon the debtor being adjudged bankrupt. This means in practical terms that Mr. Buxbaum, who is now a bankrupt, has no further status to lodge an application for leave to appeal against our judgment : see Heath v. Tang and Another [1993] 1 WLR 1421 and Re Tang Wai Yee Sylvia (a bankrupt) [1998] 1 HKC 736.
5. Mr. Buxbaum has lodged an appeal against the bankruptcy order but this does not affect the applicable principle. As Mr. Buxbaum is not entitled in his personal capacity to make the leave application in the first place, his application for legal aid will not assist him at all. For this reason his application to stay the proceedings must be refused. We direct a copy of the Reasons for Decision to be supplied to the Director of Legal Aid.
6. As for Mr. Buxbaum’s leave application, it must also be dismissed for the same reason we have given since he no longer has any status to pursue the appeal. In the circumstances it is not necessary for us to address the point raised by the claimant that section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance is not engaged because the $1 million monetary criterion in that section does not encompass costs as decided by the Court of Final Appeal in Peter P F Chan v. Hong Kong Society of Accountants [2001] 1 HKLRD 779.
Conclusion
7. Accordingly the applications were dismissed with costs to the claimant to be taxed on a common fund basis.
(Peter
Cheung)
Justice of Appeal |
(Andrew
Cheung)
Judge of the Court of First Instance |
Appellant, in person, absent
Mr. Warren Louis Tang, instructed by Messrs Tai, Tang & Chong, for the claimant
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