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Choy Bing Wing v Official Receiver

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date07 June 2001
Year2001
Judgement NumberHCB242/1992
Subject MatterBankruptcy Proceedings
CourtHigh Court (Hong Kong)
HCB242D/1992 CHOY BING WING v. OFFICIAL RECEIVER

HCB000242D/1992

HCB 242/1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. 242 OF 1992

____________

IN THE MATTER of Section 84 of Bankruptcy Ordinance (Cap.6)

and

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 Kwan J in Chambers

Date of Hearing: 7 June 2001

Date of Judgment: 7 June 2001

_______________

J U D G M E N T

_______________

1. This is an appeal from the ruling of Master B Kwan made on 22 May 2001 sitting as the Registrar of Civil Appeals. She ruled that the Notice of Appeal filed by the applicant Mr Choy Bing Wing was invalid because no leave to appeal was obtained as required under s.14(3)(e) of the High Court Ordinance, Cap.4. The relevant provisions read as follows:

"14. Appeals in civil matters

(1) Subject to subsection (3), an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter.

(3) No appeal shall lie -

(e) without the leave of the court or tribunal in question or of the Court of Appeal, from an order of the Court of First Instance or any other court or tribunal made with the consent of the parties or relating only to costs which are by law left to the discretion of the court or tribunal."

2. It would be convenient to set out the background matters first.

3. The applicant issued a Notice of Motion under s.84(1) of the Bankruptcy Ordinance, Cap.6 for an inquiry into the conduct of the Official Receiver and trustee of the estate of Ng Yat Chi, a bankrupt who has since been discharged, relating to the sale of the bankrupt's shares in a company known as Alljean Investment Limited.

4. On 15 February 2001, the Notice of Motion was dismissed by Yuen J who was not satisfied that there was sufficient substance in the allegations of misconduct of the Official Receiver to justify an inquiry under s.84. In dismissing the application, Yuen J made an order nisi that the applicant was to bear the Official Receiver's costs of the application.

5. On 5 March 2001, the applicant issued a summons to vary the order nisi as to costs. The ground of his application was that the court has no jurisdiction to order costs against him in an application under s.84. It was contended by the applicant that on the true construction of s.84(1), that provision has imposed an administrative function and not a judicial function on the court hearing the application. Hence, the judge would have no discretion to order costs against an unsuccessful applicant in an application under s.84(1).

6. Yuen J heard the application to vary the order nisi on 26 April 2001 and gave a decision on 2 May 2001. She rejected the applicant's submission on the construction of s.84(1). She held that the court has jurisdiction to award costs against the applicant and she exercised her discretion to award costs against the applicant having regard to r.32A of the Bankruptcy Rules which provides that under the general rule the costs of an application to the court which is opposed shall follow the event.

7. The order of 2 May 2001 which was drawn up was as follows:

"It is ordered that:

(1) the Order Nisi be made absolute, and

(2) there be an order nisi that the Applicant do bear the Respondent the costs of the Summons."

8. On 4 May 2001, the applicant filed a Notice of Appeal to appeal against the order of Yuen J on 2 May 2001. In the Notice of Appeal, he seeks an order that (1) the order of 2 May 2001 be set aside in its entirety and the appeal be allowed, and (2) the court do enquire into the complaint made by the applicant against the conduct of the Official Receiver under s.84(1) of the Bankruptcy Ordinance and take such action thereon as may be deemed expedient.

9. If by (2)...

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