RE CAI SUI XIN

HCB 735/2018

[2019] HKCFI 2547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 735 OF 2018

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D E C I S I O N

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1.  The trustees seek an order pursuant to section 30AB of the Bankruptcy Ordinance (Cap 6) for a non‑commencement order. I am satisfied that the substantive requirements of the Ordinance are met in that the bankrupt has failed to attend any initial interview and failed to provide the trustee with information concerning his affairs, dealings and property and that such failure has prejudiced the administration of the bankrupt’s estate.

2.  There was however a procedural irregularity in that the trustees, in the first instance, applied for such order ex parte by way of a report filed on 26 July 2019.  Upon directions from Anthony Chan J on 8 August 2019, they filed an affirmation and summons for the purpose of the application, which however were more than 6 months after the date of the bankruptcy order as prescribed by section 30AB(2)(a). 

3.  Plainly an application for a non‑commencement order, if granted, has a serious impact on the length of the bankruptcy and should not, at least generally speaking, be made ex parte.  Further, as provided in rule 89A of the Bankruptcy Rules (Cap 6A), the matters that are required to be stated in support of the application have to be set out in an affidavit or, in a case where the application is made by the Official Receiver as trustee, in a report.  In the present case the trustee is not the Official Receiver.

4.  As submitted by Mr Dong for the trustees, with the concurrence of the Official Receiver, section 30AB itself does not specify the form in which an application for non‑commencement order must be made.  There was no failure to comply with a provision of the Ordinance as such.  The trustees’ report in fact contained all the matters that were required by the rules to be set out.  A summons and affidavit have shortly thereafter been filed and served, exhibiting the original report.  The bankrupt has not appeared to raise any objection or complain of any prejudice.  In these circumstances, I am satisfied that the incorrect manner in which the application was initially made within time (ie by a report filed ex parte) is a mere formal defect and irregularity which has not caused any substantial injustice to the bankrupt or anyone else, and may be waived under section 124(1) of the Ordinance and rule 203: Re Dias‑Azedo [2010] 5 HKLRD 474; Ma Wing, Michael v Fong Sze‑ming [1988] 1 HKLR 354, 358‑360.

5.  I shall therefore make an order in terms of the summons as amended.