RE LIU KAM MING t/a FLORA INDUSTRIAL CO.

IN THE COURT OF APPEAL

1992, 185
(Civil)

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J U D G M E N T

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Mayo, J. delivering the judgment of the court:

1. This is an appeal from Master Woolley's Order dated the 28th October 1992 when he dismissed the Petition presented by the Appellant petitioning the Court to make a Receiving Order in Bankruptcy against Liu Kam Ming trading as Flora Industrial company.

2. The petition was based upon non compliance with a bankruptcy notice issued on the 13th May 1992 in respect of a judgment debt for $114, 486.63.

3. No reasons have been given by the Master for the order he made. However, it would appear that the reason for his declining to make a Receiving Order was that service of the bankruptcy notice on the Judgment Debtor had not been effected within one month from the date of issue as prescribed by r.47 of the Bankruptcy Rules.

4. An application for substituted service of the bankruptcy notice and for an extension of time for service as the notice had expired, was made by the petitioner's solicitors on the 16th June 1992.

5. An order for substituted service of the bankruptcy notice was made by Master Cannon on the 19th June 1992 but the order did not include an extension of time for service which in effect rendered the order for substituted service meaningless.

6. Indeed, it appears from correspondence which was exhibited to the papers before us that the solicitors representing the Judgment Creditor were under the impression that when Master Cannon made the order of substituted service she also ordered that there be an extension of time for serving the bankruptcy notice so that proper service had been effected on the judgment debtor.

7. An order for substituted service of the petition was made on the 23rd October 1992 and service was effected in accordance with the terms of that order.

8. Subsequent to Master Woolley's Order dismissing the Petition an application was made by the petitioner's solicitors to Master Cannon to amend the order for substituted service of the bankruptcy notice to include a provision to extend the time. However, Master Woolley who heard the application was not prepared to grant leave for such an amendment.

9. Rule 48 of the Bankruptcy Rules provides that a bankruptcy notice shall be served in like manner as prescribed for the service of a creditor's petition while r.59(3) provides that where an order for substituted service has been effected under r.59(2), the petition shall be deemed to have been duly served on the debtor.

10. We consider that an extension of time for service of the bankruptcy notice should have been granted by Master Cannon when the application was made for substituted service and that no injustice will be caused by this Court now extending the time under r.204 of the Bankruptcy Rules. Accordingly, the appeal is allowed and there will be a Receiving Order.