1939-08-04 — Page 9

SUPPLEMENT

Hongkong Daily Press.

Begistared as a Newspaper at the General Post Office in the United Kingdom.

CHOA

ESTABLISHED 1357 刺孖 15-19 Marina House, Queen's Road Central

HONGKONG, -FRIDAY AUGUST 4, `1939.

PO-SIEN

RECEIVER'S

JUDGMENT

BY

G.P.O. Box No. 1,

BANKRUPTCY-OFFICIAL

APPLICATION

DELIVERED

PUISNE JUDGE

1;

WRITTEN JUDGMENT, DISMISSING THE APPLICA- TION BROUGHT BY THE OFFICIAL RECEIVER, Mr. L. R.

DISMISSED

Official Receiver (1893, 2 QB. p.mission,

that this application

219) and In re Painter, ex parte comes too late. Though it is clear Painter (1885. 1 Q.B. p.85).

from the authorities (e.g. intre

Miss Morrison then gave evid-Tablas, 3 Morton p.30 and in re ence of the debtor's dishonesty in Stanger ex parte Geisel, 22 Chan- his dealings with her.

cery Division p. 436) that the Court will, in exceptional circumstances. entertain such an application long after the time limited for appeal against adjudication, it is equally

APPLICATION ASSAILED On behalf of the creditors (other

the application was assailed on money lenders) and of the debtor to the application.

Andrewes, for annulment of the adjudication order made than Miss Morrison and two Indian clear that undue delay will be fatal

technical grounds as well as on its merits.

The statement of the law on this point in Baldwin's. Bankruptcy ̈p. 716, footnote (n) is amply sup-

Here, even if the circumstances

in 1937 against Choa Po-sien, former compradore of the Banque Franco-Chinoise, was handed down by the Puisne Judge, Mr. Justice R. E. Lindsell, on Wednesday.

The following is the full text duct of three of the creditors who, by Mr. Lo, and to some extent late to apply to annul an adjudică- ̧ The first technical point taken ported by authority: "It is too of the judgment:-

The alleged, had acted, in "concert elaborated by Mr. Silva, was that tion; on this ground (he. that the This is an application by the in proving for less than the full the Official Receiver had no locus debtor ought not to have been omictal Receiver who is also the amount of their claims, solely in standi-no right or duty to make adjudged bankrupt) when there trustee in bankruptcy of the estate order to help the debtor to defeat such an application; that his has been delay and the trustee has of the debtor, Choa Fo-sien, for the judgment which Miss Morrison powers and duties were exhaus- already dealt with the property." the annulment of the adjudication had obtained against him; (2) dis- tively defined in Part LV (Section order made by this Court against honesty in the debtor in obtaining 751) of the Bankruptcy Ordinance, the debtor in February, 1937.

from Miss Morrison a large sum of 1931, wherein no

TIME FACTOR = The Official Receiver based his he was, at the time, compradore of he was not a "person interested" ment was not made until more money by the false pretence that made of such applications; that the debtor's application for annul- mention was Ponsford (1904. A.C. p. 704) where So in In re Ponsford ex parte application öriginally upon the grounds (1) that the debtor, ought position to invest her money to the in section 33 of the Ordinance: judication it was held by the Court. the French Bank and thus in a within the meaning of those words than three months after the ad- not to have been adjudged bank-best advantage, rupt for the reasons contained in the report annexed to the applica-1

Mr. Lo objected to this change ed the Chief Justice (with the con- entirely vitiated by the delay.

that section 114 merely empower of Appeal that the application was tion, and (2) that the assets for of ground, but since the position sent of the legislature) to make division among the unsecured creof no one of the creditors seemed general rules for carrying into ditor's were not and would not be to be prejudiced thereby, I finally effect the objects of the Ordim- can be regarded as exceptional sufficient to pay a dividend of 15 Over-ruled the objection, but 1ance, and that Bankruptcy Rule (which is disputed), there has been per cent.

agree that the form in which this No. 80, so far as it purported to a lapse of at least 18 months dur- The report annexed alleged unsatisfactory.

application was presented was very regulate the procedure on suching which no new facts have come concert by some of the creditors)

applications by the Official Recelto light. Furthermore. serious for the debtor's sole benefit to

ver, was therefore ultra vires. abtise the process of the Court by

allegations against the debtor's concealing the full amounts of that had the debtor himself peti-Bankruptcy, p. 1017 f, as authority over two years ago, by which time

The Official Receiver contended!

Mr. Silva relied

honesty were made as early as (Lt their claims against him and thus tioned to be made a bankrupt the that in England no one but a per- also it should have been apparent Deacons not before) his public examination to enable him to produce sufficient revelation of his dishonesty vis-a-son aggrieved by an adjudication to the then Official Receiver that assets to satisfy the 15 per cent. vis Miss Morrison must have been can apply for its annulment; but there must have been some ar rule, and even suggested that the fatal to his petition, but that he what may have been the law of rangement between the debtor and promissory notes on which these had got round this difficulty by England in 1865 seems hardly Mr. Kam-fat Lay for the presenta- friendly creditors relied might have arranging with one of his credi-pertinent to the question of what tion of the latter's petition. been manufactured.

tors. Mr. Kam-fat Lay, to petition is the law in Hongkong to-day. for his bankruptcy, and with three portion of their full claims and other creditors to prove only for a

Had it recently come to light NO EXACT PARALLEL thereby enable him to produce between section 33 of our Bank-ment even after two and half that the adjudication order had sufficient assets to satisfy the 15 ruptcy Ordinance and its purport-years.

Indeed, there is no exact parallel well be a good reason for annul- en obtained by fraud, that might per cent rule.

F

The application further asked the Court, in the event of its an- nulling the adjudication, to make such farther orders us might be just in regard to the refunding to the Official Receiver of dividends already distributed by him to the friendly creditors,

ARRANGEMENT

оп

The result, the Official Receiver Bankruptcy Act, 1914 and in my fraud on the part of the creditors ed source, viz., section 29 of the Here, however, all suggestion of submitted, was that the petition, judgment any trustee in banka suggestion which in my judg- while bearing the signature of " at any rate in seeing that the made has been dropped, and the "In opening his case before me on the debtor's own petition in dis- Furthermore, by section 76 (3) of the dishonesty of the debtor and creditor, was no more in fact that 15 per cent, rule is complied with. omcial Receiver relles partly on ruptcy must be a person interest-ment should never have been June 14 the Official Receiver went guise, that it was filed solely in his the Ordinance it is expressly en-improper conduct on the part of

“ALLEGATIONS OF FRAUD

further, and, in answer to a ques-interests and not in the interests

tion by Mr. Prior, made the de-of the creditors, and that it must acted that "all provisions in this some of his creditors, of which dis- finite allegation that the promis- therefore have been dismissed as to the trustee in bankruptcy shall, evidence was available two years sory notes beld by the friendly an abuse of the process, had at the unless the context otherwise re- ago as now and creditors had been manufactured time of the true position been quired or the Ordinance otherwise thought it, have been utilised by or any other Ordinance referring honesty and impropriety the same for the purpose of the case and appreciated. "represented no true debt,

At the second hearing on June referred to Volume II of Hals-hold therefore that the Oficial partly on the fact that the debtor's In support of his contention he celver when acting as trustee,plication for annulment, and provides, include the Omcial Re- the Official Receiver to make ap-

could, if hew 27 the Official Receiver re-opened bury's Laws of England (2nd his case on somewhat new lines. Edition); paragraphs 101, 157, 165 He dropped all allegations of fraud and to Willams on Bankruptcy Bankruptcy was entitled to come proots of debts admitted in May in connection with the promissory and cited In re Adams, ex parte

Receiver who is the trustee in this assets, owing to the additional notes and now based his applica-Griffen (1879, Chancery Division tion on (1) irregularity in the con- p.481), In re Flatau ex parte the substance in Mr. Lo's second sub-been apparent by the end of 1937

in and make this application.

and June, 1937, are no longer suffi- In my view there is far more liabilities-a fact which must have cient to pay 15 per cent. of his