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Ip Pui Lam Arthur And Another v Alan Chung Wah Tang And Others

Judgment Cited authorities 1 Cited in 1 Precedent Map Related
Vincent
Judgment Date27 August 2019
Neutral Citation[2019] HKCFI 2073
Judgement NumberHCB3819/2011
Citation[2019] 4 HKLRD 379
Year2019
Subject MatterBankruptcy Proceedings
CourtCourt of First Instance (Hong Kong)
HCB3819F/2011 IP PUI LAM ARTHUR AND ANOTHER v. ALAN CHUNG WAH TANG AND OTHERS

HCB 3819/2011

[2019] HKCFI 2073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 3819 OF 2011

____________

RE : HO YUK WAH DAVID, a bankrupt
BETWEEN
IP PUI LAM ARTHUR and IP PUI SUM, Joint and Several Trustees in Bankruptcy Applicants
and
ALAN CHUNG WAH TANG and ALISON WONG LEE FUNG YING 1st Respondents
ALAN CHUNG WAH TANG and HOU CHUNG MAN, Joint and Several Trustees in Bankruptcy of the Estate of LEE SIU FUNG, SIEGFRIED, the Bankrupt 2nd Respondents

____________

Before: Madam Recorder Linda Chan SC in Chambers
Date of Hearing: 19 August 2019
Date of Decision: 19 August 2019
Date of Reasons for Decision: 27 August 2019

________________________________

REASONS FOR DECISION

________________________________

1. On 31 May 2019, this Court ordered the 1st and 2nd respondents to comply with the order made by Au-Yeung J on 7 April 2017 (“Production Order”) within 28 days of the Order [1]. Amongst the 1st and 2nd respondents, Mr Tang and Ms Hou (together “Respondents”),seek to appeal against the Order by filing a Notice of Appeal dated 28 June2019 in CACV 291/2019. On the same day, they issued a summons under Order 59, rule 13 of the Rules of the High Court for a stay of the Order until determination of the appeal. Although §3 of the summons seeks an extension of time for compliance with the Order within 28 days from the date of the determination of the summons, that part of the application is not pursued by Mr Hew, counsel for the Respondents, in his written and oral submissions. At the end of the hearing, I dismissed the summons with costs to be paid by the Respondents to the Trustees with reasons to be handed down. These are the reasons for my decision.

Whether the appeal is competent

2. The Order against which the Respondents seek to appeal was made under Order 45, rule 6(1) to enforce the Production Order, specifically, to give one last chance for the Respondents to comply with it. It seems to me that the Order is an interlocutory order, which requires leave to appeal under section 14AA(1) of the High Court Ordinance. Prior to filing the Notice of Appeal, no application has been made by the Respondents for leave to appeal against the Order.

3. When the point is raised by this Court at the hearing, Mr Hew accepts that the Order does not fall within any of the classes of order stipulated in Order 59, rule 21(1) – (2) but contends that leave to appeal is not required as the Order is not an interlocutory order but a final order. He submits that applying the application test, the Order I made “determines the issues between the parties” raised in the Trustees’ summons for enforcement of the Production Order and, as such, is a final order. I do not think this is right, as the Order is made to give one last opportunity for the Respondents to comply with the Production Order within the new time limit stipulated. It did not “determine the whole action” or “a substantive part of the final trial, or ‘crucial issue’ that goes to the root of the case” or a “dominant feature of the case” in the sense discussed in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222.

4. Mr Hew then changes his submissions and contends that the Order falls within Order 59, rule 21(1)(a), being “a judgment or order determining in a summary way the substantive rights of a party to an action”for the same reason articulated. The submission is misconceived, given that the Order did not determine any substantive rights of the parties.

5. Lastly, Mr Hew asks the court to adjourn the summons so that the Respondents can consider whether to make an application for leave to appeal or to allow the Respondents to make an application for leave to appeal orally. I refuse to accede to either course suggested, in light of (a) the delay and inaction on the part of the Respondents in seeking leave, (b) the time limit for the Respondents to apply for leave to appeal has long expired, and (c) the requirements for seeking leave, as stipulated in Order 59, rule 2A(1), have not been complied with.

6. On the same day after conclusion of the hearing, Mr Chen, counsel for the Trustees, lodged a supplemental submission to draw to the Court’s attention the decision of Godfrey Lam J in Re Lee Siu Fung Siegfried (No 2) [2018] 3 HKLRD 765, where the learned Judge held that the order against which the appeal was brought was a dismissal of an application for discovery made by the Court of First Instance sitting in its bankruptcy jurisdiction and, therefore, is an order of the “court” within the meaning of section 98(2) of the Bankruptcy Ordinance (Cap 6) as well as an order “made … in the matter of any bankruptcy” within the meaning of Order 59, rule 4(1)(b) (§12). As section 98(2) is in mandatory terms and has exclusive application to bankruptcy matters, it should be given effect over section 14AA (§14), citing Mita Kogyo Kabushiki Kaisha v Mitac Inc [1993] 2 HKLR 466; WFM Motors Pty Ltd v Malcolm Maydwell [1996] 2 HKLR 236). Mr Chen submits that on the basis of Re Lee Siu Fung Siegfried (No 2), there is basis for saying that...

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1 cases
  • Alan Chung Wah Tang And Others v Lee Siu Fong And Another
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 13 Enero 2020
    ...nugatory without a stay, which is a matter that needs to be supported by proper evidence: see Re Ho Yuk Wah David (bankrupt) (No 4) [2019] 4 HKLRD 379, §§12-14, per Linda Chan J. 23. Although the appeal will be heard in April this year, there has already been, in my view, inordinate delay b......

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