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Ord. No. 32/80
Right of transferee to indemnity.
TRANSFER OF BUSINESSES (PROTECTION OF CREDITORS)
(2) In the case of a transfer by way of sale under or pursuant to a charge, a notice of transfer shall contain the following particulars——
(a) the nature of the business, and the name or style under which, and the full address at which, it has been carried on during the period of 3 months immediately preceding the date of transfer; (b) the full name and address of the person whose business has been, or is intended to be, transferred by way of sale under or pursuant to the charge;
(c) details of the charge under or pursuant to which the transfer by way of sale has been or is to be made, sufficient to enable any document creating or evidencing the charge to be readily identified and, without limiting the generality of the foregoing, such details shall include-
(i) the date when the charge was made, given, executed or came into existence;
(ii) the consideration for which the charge was executed, made or given or, if there was no such consideration, the circumstances in which it came into existence;
(iii) in the case of a registered charge, the date of the registra- tion of the charge, the title of any enactment under which it was registered and any number or other means of identifying the charge assigned to it upon registration;
(d) the date of transfer; and
(e) the amount of money, payment of which has been secured by the
charge and which was owing—
(i) at the date of the publication of the notice of transfer; or (ii) if the transfer has already taken effect, at the date of the transfer so taking effect.
(3) Every notice of transfer shall be signed—
(a) by both the transferor and the transferee, in the case of a
transfer to which subsection (1) applies; or
(b) by the charge-holder and the transferee, in the case of a transfer
to which subsection (2) applies,
and shall be given by publication in—
(i) the Gazette;
(ii) any 2 of such Chinese language newspapers circulating in Hong Kong as may be approved for the purpose by the Secretary for Home Affairs; and
(iii) 1 English language newspaper circulating in Hong Kong which
has been so approved.
6. (1) The transferee shall be entitled to be indemnified—
(a) by the transferor, except in the case of a transfer by way of sale
under or pursuant to a charge; or
(b) by the charge-holder, if the transfer is by way of sale under or
pursuant to a charge,
for all amounts for which the transferee is made liable under this Ordin- ance and for which he would not otherwise be liable.
(2) The amount of such an indemnity may be recovered by civil proceedings as a debt or liquidated demand.
TRANSFER OF BUSINESSES (PROTECTION OF CREDITORS)
Ord. No. 32/80
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7. Nothing in this Ordinance shall relieve or be deemed to relieve a Liability of transferor or transferee, or any person who sells a business under or parties not pursuant to a charge, from any liability to which he would otherwise be subject.
affected.
transferee.
8. (1) A transferee who in good faith and without preference has Limitation of paid in discharge or partial discharge of any liability for which he became liability of liable under this Ordinance, and for which he would not otherwise have been liable, an amount which is equal to the value of the business acquired by him, at the date on which the transfer took effect, shall not be liable further under this Ordinance.
(2) The value of a business acquired by a transferee at the date on which the transfer takes effect shall, until the contrary is proved, be presumed to be an amount equal to the amount paid or agreed to be paid (whether in terms of money or by means of any other consideration) for the acquisition of the business.
9. Subject to section 6, no action shall be instituted to recover any Limitation debt from or to enforce any obligation against any person liable therefor of time for under this Ordinance, and for which he would not otherwise have been institution of liable, more than 1 year after the date on which the transfer in respect of which the liability arose took effect.
proceedings.
10. This Ordinance shall not apply to any transferee where the Saving. transfer is effected-
(a) by the Official Receiver or a trustee in bankruptcy;
(b) by the liquidator of a company in liquidation other than volun-
tary liquidation;
(c) by the Colonial Treasurer Incorporated;
(d) by the Director of Education Incorporated;
(e) by the Director of Social Welfare Incorporated;
(f) by a person selling under or pursuant to a charge which has been registered for not less than 1 year at the date when the transfer takes effect;
(g) pursuant to any order or direction of any court;
(h) by an executor or administrator; or
(i) by operation of law.
11. (1) The Fraudulent Transfers of Businesses Ordinance is repealed. Repeal and
saving.
(2) Notwithstanding subsection (1), the Fraudulent Transfers of Busi- (Cap. 49.) nesses Ordinance shall continue to apply with respect to a transfer-
(a) which took effect; and
(b) in respect of which notice was given under section 3 of that
Ordinance,
before the coming into operation of this Ordinance, as if this Ordinance had not been passed.
1980.
Passed by the Hong Kong Legislative Council this 25th day of June
LORNA LEUNG,
Clerk to the Legislative Council.