RE CHAN CHI HO LINCOLN

HCB 9158/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY PROCEEDINGS NO. 9158 OF 2007

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D E C I S I O N

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1.  I have before me a summons issued by the bankrupt on 5 December 2008 pursuant to section 100(4) of the Bankruptcy Ordinance, Cap. 6.  He seeks an extension of time to serve a Notice of Appeal from an order I made on 2 October 2008, notwithstanding the time for doing so has expired.  On 2 October 2008, I had dismissed the bankrupt’s application to annul the bankruptcy order.

2.  The solicitor for the bankrupt filed an affidavit yesterday setting out the reasons why there was delay in filing and serving the Notice of Appeal.  He also deposed to the merits of a Notice of Appeal prepared by counsel.  The Notice of Appeal was filed late because the handling solicitor was under the misapprehension that the amendments to Cap. 6 which came into effect on 10 December 2007 applied to the present situation.

3.  Under the present version of section 98(2), it is provided that every order of this court shall be subject to appeal to the Court of Appeal and that the Notice of Appeal shall be served within the time for appealing against an order made in the matter of any bankruptcy as specified in Order 59 rule 4(1)(b) of the Rules of the High Court.  Under Order 59 rule 4(1)(b), the time for the service of the Notice of Appeal is 28 days beginning on the date immediately following the day on which the order of the court below was sealed or otherwise perfected.

4.  In this instance, the bankrupt’s solicitor attempted to file the Notice of Appeal on 17 November 2008.  The order made on 2 October 2008 was perfected on 20 October 2008.  If the present version of section 98(2) were applicable, the Notice of Appeal would have been filed within time.

5.  However, under the transitional provision for Ordinance No. 18 of 2005, it is provided that the amendments of the Bankruptcy Ordinance which came into effect on 10 December 2007 would have no application in respect of a bankruptcy petition presented before the commencement date.  As the bankruptcy petition was presented on 25 October 2007, the old law would apply.  Under the old provision of section 98(2), the time within which a Notice of Appeal should be filed was within 21 days from the time when the decision was pronounced.  There would be no need to wait for the order under appeal to be sealed or perfected for time to run.

6.  It seems to me that the delay is excusable in the present circumstances.  Provided that the bankrupt is able to satisfy me there are arguable grounds of appeal,  I would be inclined to exercise my discretion to grant an extension of time to serve the Notice of Appeal.

7.  Mr Chan for the petitioner opposed this application on the ground that the appeal is plainly without merit.  I have considered the four grounds in the Notice of Appeal, the first three of which relate to service of a writ of summons on the bankrupt and the statutory demand, the fourth ground relates to the argument on merits as to why the default judgment against the bankrupt should be set aside.  I am not persuaded that the grounds advanced in the Notice of Appeal, which are essentially the arguments raised before me at the earlier hearing, are of any merit.  It does not appear to me there are arguable grounds raised in the appeal.

8.  In the circumstances, I do not think my discretion should be exercised in favour of the bankrupt.  I therefore dismiss this application.  I order the petitioner to have the costs of this application, to be paid out of the bankrupt’s estate.