Cheung Wing Kwan,Tommy v. 香港出口信用保險局and Others

DCCJ923/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 923 OF 2011

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Before: Her Honour Judge H C Wong in Chambers (Open to the public)

Date of Hearing: 8 September 2011

Date of delivery of Decision: 8 September 2011

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D E C I S I O N

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1.The applicant, Mr Cheung, the plaintiff in the action, applies for leave to appeal against my decision of 30 June 2011 ordering the striking out of Mr Cheung’s claim against the defendant under Order 18, Rule 19 of the Rules of District Court.

2.The order to strike out the action was made on the basis that the plaintiff failed to obtain the consent of the official receiver to pursue his claim.  The decision explained the reason and that I have given Mr Cheung an adjournment of 15 days in a last effort to obtain the consent of the official receiver.  Unfortunately, Mr Cheung was unable to obtain such consent.  Because Mr Cheung lacked the authority to commence the action, his claim was struck out.  I shall not go into the full reasons because it was delivered orally on 30 June and the transcript had been sent to Mr Cheung.

3.The reason that the plaintiff has failed to obtain the consent under Section 30A of the Bankruptcy Ordinance was the basis of the decision, I cannot find in Mr Cheung’s grounds of appeal today as to how I was wrong in striking out his claim.  It is clear and not disputed that Mr Cheung, the plaintiff, was bankrupt.  Under Section 58 of the Ordinance, the estate of the bankrupt vested in the official receiver.  Even though Mr Cheung may carry out his business activities after the expiry of the bankruptcy order like a normal person, if the debts he owed before the Bankruptcy Order were not fully paid up, the right to claim back the debts owed to him before the Bankruptcy Order is retained by the official receiver.

4.This, I find Mr Cheung seems to have difficulty in understanding.  At today’s hearing, he repeatedly told me that he has a basic right to pursue the claim against the insurance company.  It is only for debts incurred after the Bankruptcy Order because all the debts he owed before the Bankruptcy Order was made are for the official receiver to pursue so that the official receiver would be able to pay the creditors of the bankrupt.  That is why the Ordinance provided that unless the bankrupt has the consent of the official receiver he cannot take up actions against debtors who may owe him money before he became a bankrupt.

5.I fully sympathise with Mr Cheung’s predicament.  The goods that he sold to his New York purchaser may well be perfect, they may well have reasons known to themselves why they decided to reject those goods.  That is a matter for the New York Court and this claim has nothing to do with whether his goods were perfect or not.  This application is about the law of bankruptcy in Hong Kong when Mr Cheung required the consent of the official receiver to take up the action against the defendants.

6.For the aforesaid reason, I cannot find any prospects in the plaintiff’s appeal. Application for leave to appeal is therefore dismissed. 

7.Mr Thomas, representing the defendants have applied for costs.  I allow costs for today’s application to be borne by the plaintiff.  Mr Thomas has also asked from gross sum taxation and there is a statement of costs attached to his skeleton argument including costs of today’s hearing. 

(Discussion re costs)

8.I have gross sum assessed the costs of today’s hearing, including the preparation work due to the applicant’s application for leave at $18,000 payable forthwith. 

Plaintiff, in person, present.

Mr Feld Thomas, of Messrs Mayer Brown JSM, for the Defendants.

Please refer to HCMP1856/2011 for the relevant appeal(s) to the Court of Appeal.