Re Ng Cho Shing

HCB000082/1985

IN BANKRUPTCY

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Coram: The Honourable Mr. Justice Jones in Court

Date of hearing: 27th May 1985

Date of delivery of judgment: 3rd June 1985

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JUDGMENT

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1. This is a petition for a receiving order based upon failure by the debtor to comply with the terms of a bankruptcy notice.

2. The petitioning creditor, the Far East Bank Limited obtained judgment in default of defence on the 30th November 1982 for the sum of $90,575.11 with interest and costs. A bankruptcy notice was filed on the 30th January 1985 and according to the affirmation of service was served by post on the 4th February 1985. The petition was filed on the 27th April 1985 and was served by post on the 30th April 1985. No notice of intention to show cause against the making of a receiving order was made by the debtor and the debtor did not appear at the hearing.

3. At the hearing counsel for the petitioner Mr. Yam sought leave to amend paragraph 4 of the petition with regard to the dates of service of the bankruptcy notice and the failure to comply. In this paragraph the petitioner avers that the debtor failed before the lst April 1985 to comply with a bankruptcy notice served on the 4th January 1985 whereas the correct dates for which amendments are sought are respectively the 18th February 1985 and the 4th February 1985.

4. Mr. McInnes who appeared for the Official Receiver submitted that the amendments should not be allowed for the misdescription of the dates was a defect of substance and not a defect in form. My attention was drawn to Hastings v. Geoffrey S. Beccle & Co. reported in the Times on the 21st November 1984 where it was held that a bankruptcy petition could not be amended out of time so as to correct the date of the act of bankruptcy. However Mr. Yam referred to In re Dunhill (1894) 2 Q. B. 234 where it was held that although the date of the act of bankruptcy relied or. was not set out in the petition, it would not be fatal if it was possible to ascertain the date from elsewhere in the petition. This is possible under these circumstances even if the three month period has expired. On the other hand if there is nothing elsewhere in the petition to enable the debtor to infer that reliance was placed on an act of bankruptcy occurring at a different date, the defect is not one of form, but one of substance. Peter Gibson J. summarised the position in Hastings v. Geoffrey S. Beccle & Co. in  the following words:-

"the petition ought to tell the debtor what the act of bankruptcy was so that he might have the opportunity of contesting it in the first instance. It was not sufficient to say that the bankrupt knew when he was served, thereby implying that the bankrupt would know what act of bankruptcy was being referred to by the creditors.

The bankrupt was entitled to know from the petition what was the act of bankruptcy relied on by the creditors, and the date of its commission was an important part of its description.

A misdescription of the date for service of the bankruptcy notice and the date for completion of the act of bankruptcy was not a mere defect in form but one of substance.".

5. There was no other evidence in the present petition to indicate to the debtor the correct date for the service of the bankruptcy notice or the date of the act of bankruptcy. The defects are therefore matters of substance with the result that the petition must be dismissed.

Representation:

Mr. D. Yam (Henry C. K. Tung & Co.) for Petitioner.

Mr. A. D. McInnes for Official Receiver.

Ng Cho Shing, debtor, absent.