Ex Parte the Trustee of the Property of the Above Named Bankrupts, The Official Receiver v. Springbok Shipping (HK) Ltd Ang Others

HCB000071/1992

IN THE SUPREME COURT OF HONG KONG

IN BANKRUPTCY

NO. 69 OF 1992

AND

NO.71 OF 1992

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AND

IN THE SUPREME COURT OF HONG KONG

IN BANKRUPTCY

NO. 69 OF 1992

AND

NO. 71 OF 1992

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Coram: The Hon. Mr. Justice Rogers in Court

Date of Hearing: 25th June 1996

Date of Delivery of Decision: 25th June 1996

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DECISION

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1. This is a further application in this matter and it is made by Notice of Application dated 12th June. The Applicant, the Trustee of the Bankrupts, namely the Official Receiver, is applying for certain further orders in addition to those which have already been made.

2. The effect of paragraph 1 of the Notice of Application is that the Applicant wishes that the affidavit confirming the assets of the 1st Respondent to be sworn by an officer of the 1st Respondent. As I understand it, there is no opposition to that although Mr. Poon, Q.C., on behalf of the 1st Respondent, has pointed out that the person who has sworn the affidavit is the person who has most knowledge of the matters of which he has given evidence. So be it, I am prepared to make the order that a director do swear the affidavit and it is agreed between the parties that the date in relation to which the assets should be shown is 6th October, in other words, the date on which the original Mareva injunction was granted.

3. Then Mr. Fitzpatrick, on behalf of the Applicant, has made a further application today which is not resisted and that is that the 1st Respondent do by its duly authorized officer identify with particularity, the name and address of the payee of the sum of US$559,940.76 paid on or about 10th October 1995 by the 1st Respondent from its account 21002097 at Dao Heng Bank Limited.

4. There are two further applications and both relate to the liabilities of the company. The first is that the 1st Respondent, within 14 days of the order do disclose its total current liabilities, together with the name and address and the amount in respect of which the 1st Respondent is indebted, of every creditor, from among those making up the current liabilities, whose claim is for an amount of more than HK$50,000.00 as at the close of business on the following dates: 6th October 1995, 31st March 1996, 31st May 1996, such disclosure to be by an affidavit sworn or an affirmation affirmed by a properly authorized officer of the 1st Respondent, such affidavit or affirmation to be filed herein and a copy served upon the Applicant.

5. I consider that should take effect as of 6th October. That information would marry up with that relating to the assets which again have to be identified as of 6th October. I am told that the accounts of the 1st Respondent are made up to 31st March each year. No doubt audited accounts are now being prepared for the year which ended on 31st March 1996. I consider that the most appropriate way of dealing with this is that the audited accounts should be provided within a reasonable time. Given the fact that my understanding is that, the Inland Revenue requires tax returns to be completed even with extensions by the autumn of the relevant year, I consider that the end of September should give ample time to provide the audited accounts up to 31st March 1996. When those are provided, the 1st Respondent should identify every creditor for an amount in excess of HK$50,000.00.

6. In respect of dates other than the 31st March, and the like application under paragraph 3 of the Notice of Application which relates to the monthly provision of these figures, I agree with Mr. Poon, Q.C., that with a trading company such as the 1st Respondent, such would be onerous and at the end of the day probably, because of the difficulties, would not necessarily be of very much use to any of the parties. I do not propose to order that.

7. I, of course, bear in mind the difficulties of the case. I see the difficulty of the Trustee in being reluctant to apply for the appointment of a receiver. There again, as I indicated earlier, the difficulties inherent in allowing a trading company to continue to trade will always be there and insofar as the Trustee is content or may be content not to apply for the appointment of a receiver, the parties, I am afraid, will have to live with the chances which are inherent in running a trading company.

Representation:

Mr. David Fitzpatrick, instructed by the Official Receiver, for the Applicant.

Mr. Winston Poon, Q.C., and Miss Adrianna Ching, instructed by Messrs. Clayton Wong & Co., for the 1st to 7th Respondents.