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HCB000242/1987
IN THE HIGH COURT OF HONG KONG
IN BANKRUPTCY
NO. 242 OF 1987
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Re : Yeung Kwok Ying formerly trading as Owl Night Club
Ex-parte: Hang Lung Bank Limited, a Creditor
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Coram: Hon. Jones J. in Court
Date of hearing: 18th November 1988
Date of delivery of judgment: 18th November 1988
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JUDGMENT
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1. I have before me a motion by Mr Yeung Kwok Ying formerly trading as Owl Night Club (the debtor) to rescind a receiving order made on the 14th September 1987 on behalf of the petitioner, the Hang Lung Bank Limited and for consequential orders.
2. With the consent of the parties, I heard a preliminary matter of law which I decided in favour of the debtor so that it was unnecessary to hear argument on alternative grounds that were raised.
3. The short point for determination was whether the service of the petition by post was effective at the relevant time because of a change in the bankruptcy legislation that now requires personal service.
4. The petition which was based upon non-compliance with a bankruptcy notice was presented on the 7th July 1987 and copies of the petition were sent by post on the same day to the debtor at two addresses in Hong Kong which were described as his last known addresses. Postal service of a creditor's petition at this time was permissible under O.10, r.1(2) of the Rules of the Supreme Court for by Rule 59 of the Bankruptcy Rules a petition could be served in the same manner as a writ. However, on the 8th July 1987, the Bankruptcy (Amendment)(No. 2) Rules 1987 revoked Rule 59 which was replaced by a new Rule that provides for personal service of a bankruptcy petition. The rules were published in the Gazette on the 10th July 1987.
5. It was submitted by Mr Chow for the petitioner that as the petition had been sent to the debtor on the 7th July 1987 before the new legislation was passed, it constituted good service. However, that argument cannot be right having regard to the plain wording of O.10, r.1(3)(a) of the Rules of the Supreme Court which where relevant reads :-
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"3.
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Where a writ is served in accordance with paragraph (2) - (which includes service by ordinary post)
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(a)
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the date of service shall, unless the contrary is shown, be deemed to be the seventh day (ignoring Order 3, rule 2(5) after the date on which the copy was sent to,............., the address in question;" |
6. Accordingly as copies of the petition were sent by post on the 7th July 1987, service of the petition would not be deemed to have been effected until the 14th July 1987 being seven days after posting unless actual evidence was adduced that the debtor had received the petition before that date. No such evidence of an earlier date was before the Court.
7. It is therefore clear that when the petition was deemed to have been served by post, the mandatory requirement under the new rules for personal service was already operative. As a result, service of the petition by post on a date after the amendment had been passed, was invalid.
8. The receiving order must therefore be rescinded, the adjudication order annulled and the petition dismissed with costs including those of the Official Receiver.
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(B.L. Jones)
Judge of the High Court
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Representation:
Mr B. Chain (Ip & Willis) for Debtor.
Mr A. Chow (Woo & Woo) for Petitioner.
Mr J.W. Millican for Official Receiver.
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