First Asia Finance Ltd v. Tsoi Tin Kwan Fanny

CACV 149/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 149 OF 2015

(ON APPEAL FROM HCA NO 1070 OF 2011)

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AND

CACV 150/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2015

(ON APPEAL FROM HCA NO 1774 OF 2011)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court) :

1.These appeals arose from the judgment of Deputy High Court Judge E Fung SC on 2 June 2015.  By that judgment, the learned judge dismissed the Plaintiffs’ claims in HCA 1774 of 2011 and gave judgment against Tsoi Tin Kwan Fanny [“Tsoi”] in HCA 1070 of 2011.  The Notices of Appeal in these appeals were served on behalf of Tsoi 29 June 2015.  There is no appeal by Kuthoor Shanty Bernard.

2.No further steps were taken on behalf of Tsoi in the appeals for a substantial period of time.  Her solicitors only applied to fix a date for the hearing of the appeals on 19 January 2017.

3.By then bankruptcy proceedings against Tsoi were on foot in HCB 7177 of 2016.  The bankruptcy petition was issued on 7 October 2016 and it had been twice adjourned by master.  On 23 January 2017, Ng J made a bankruptcy order against Tsoi.

4.After the making of the bankruptcy order, solicitors for the respondents to the appeals informed the Registrar of Civil Appeal by a letter of 23 January 2017 of the same.

5.The Registrar considered that the right of action became vested in the Official Receiver and sought representations from the Official Receiver as to her position on the appeals.

6.By a letter of 14 February 2017, the Official Receiver replied that she decided not to adopt the appeals and not to assign the causes of action to Tsoi.

7.On 30 March 2017, the respondents took out summonses asking for the appeals to be dismissed and costs of the appeals be borne by the estate of Tsoi.

8.The Registrar gave directions on 26 April 2017 for written representation to be lodged by Tsoi on the summons.

9.Tsoi did not file any written representation.

10.The summonses were referred to this Court for determination.

11.We are satisfied that the summonses can be disposed on papers.

12.We are also satisfied that upon the making of the bankruptcy order, the title to the causes of action underlying these appeals became vested in the Official Receiver.  In light of the stance of the Official Receiver, it is clear that the appeals would not be further prosecuted.

13.In the circumstances, it is appropriate for us to make an order dismissing these appeals for want of prosecution. We order accordingly.

14.Before we make any order for costs, we would invite submissions from the Official Receiver in respect of paragraph 2 of the summonses.  Such submissions shall be filed and served by 5 June 2016 and the respondents shall reply within 7 days thereafter.

Ho Tse Wai & Partners for the 2^nd Plaintiff in CACV 150/2015 and the Defendant in CACV 149/2015

W K Sun Solicitors for the 1^st and 2^nd Defendants in CACV 150/2015 and the Plaintiff in CACV 149/2015