Choy Bing Wing v Official Receiver

CourtCourt of Appeal (Hong Kong)
Judgment Date24 May 2002
Judgement NumberCACV1233/2001
Subject MatterCivil Appeal
CACV001233/2001 CHOY BING WING v. OFFICIAL RECEIVER

CACV001233/2001

CACV 1233/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1233 OF 2001

(ON APPEAL FROM HCB 242 OF 1992)

____________________________________

IN THE MATTER of Section 84 of Bankruptcy Ordinance (Cap 6)
IN THE MATTER of the Trustee of the estate of Ng Yat Chi, a bankrupt (discharged) and a Creditor, Choy Bing Wing

BETWEEN
CHOY BING WING Applicant
AND
OFFICIAL RECEIVER and Trustee of the Bankrupt NG YAT CHI (Discharged) Respondent

____________________________________

Coram: Hon Woo JA and Chu J in Court

Date of Hearing: 17 May 2002

Date of Handing Down of Judgment: 24 May 2002

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

Introduction

1. This is an appeal against the order of Kwan J of 7 June 2001 which dismissed the applicant's appeal against the ruling of Master B Kwan made on 22 May 2001 that leave to appeal against the order of Yuen J (as she then was) made on 2 May 2001 is necessary. The order of Yuen J was a costs order.

2. The applicant seeks in the alternative that where leave is necessary, such leave be granted by this Court forthwith, and that Yuen J's costs order be set aside in its entirety for want of jurisdiction and/or discretion.

Background

3. On 13 December 2000, the applicant applied by way of notice of motion pursuant to section 84 of the Bankruptcy Ordinance, Cap 6 for an order that the respondent disclosed to the applicant and to the court all the relevant documents connected with the sale of the entire shareholding in Alljean Investment Limited owned by the bankrupt and that there be an enquiry by the court of the respondent's conduct over the said sale after such disclosure.

4. On 15 February 2001, Yuen J refused the applicant's application and made an order nisi as to costs against him.

5. On 5 March 2001, the applicant applied to vary the order nisi as to costs. The application was dismissed by Yuen J on 2 May 2001. That application and order of dismissal related to costs only.

6. On 4 May 2001, the applicant filed a Notice of Appeal against Yuen J's costs order of 2 May 2001. On 22 May 2001, Master Kwan, as the Registrar of Civil Appeals, made a ruling that the Notice of Appeal was invalid because no leave to appeal had been obtained beforehand.

7. On 23 May 2001, the applicant appealed against Master Kwan's ruling. On 7 June 2001, Kwan J dismissed the applicant's appeal with costs.

8. This is the appeal against Kwan J's decision.

Issues in the appeal

9. The main issue in this appeal is whether the decisions of Master Kwan and Kwan J are correct that leave is required to appeal against Yuen J's costs order of 2 May 2001. Alternatively, if we decide that leave is required, we are asked to grant leave for the applicant to pursue his appeal against Yuen J's costs order. That involves a second issue, whether Yuen J had jurisdiction or discretion in making the costs order. The thrust of the applicant's contention is that Yuen J had no jurisdiction to make the costs order in the proceedings brought by him...

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