Standard Chartered Bank And Another v The Official Receiver

CourtCourt of Appeal (Hong Kong)
Judgment Date15 December 1989
Judgement NumberCACV126/1989
Subject MatterCivil Appeal
CACV000126/1989 STANDARD CHARTERED BANK AND ANOTHER v. THE OFFICIAL RECEIVER

CACV000126/1989

IN THE COURT OF APPEAL 1989, Nos 80 & 126
(Civil)

On Appeal from the High Court in Bankruptcy No. 297 of 1984

Re: Sabrina Au-yang Lam Lai Ming, a Bankrupt

BETWEEN

STANDARD CHARTERED BANK Applicant
HONG KONG TRUSTEE LIMITED, Administrator of the estate of Madam Lau Sui Ling, deceased (Appellant)

AND

THE OFFICIAL RECEIVER, the trustee of the property of Sabrina Au-yang Lam Lai Ming, a Bankrupt Respondent

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Coram: Hon Silke, V-P, Kempster, JA & Barnes, J

Date of Hearing: 7 & 8 December 1989

Date of Delivery of Judgment: 15 December 1989

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J U D G M E N T

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Silke, V-P :

1. I have had the opportunity of reading in draft the judgment about to be delivered by Kempster JA and I am in agreement with his conclusions, his reasoning therefore and the order he proposes.

2. Jones J was left with some very hard swearing in the first matter which came before him, at the conclusion of which he upheld the rejection by the Official Receiver of the first proof based upon a loan by the deceased, Madam Lau, to the bankrupt, Sabrina. He was, in the second matter, faced with a directly opposite situation: a loan by the deceased to Bylamson Bermuda who in turn made a loan to Sabrina. All this involving the same documentary evidence.

3. As Mr Lewis, who appeared for the Official Receiver here and below, said in the course of the argument: no transaction involving the persons with whose dealings we are here concerned is ever what it seems. I am not without sympathy for the view the judge took which is best expressed by saying "a plague on both your houses''.

4. However the documents, shorn of the equivocal, to use a neutral word, evidence of the personalities directly concerned and in that I include the statement of one of them made from the Bar in different proceedings and the contents of that part of the transcript which we have seen of the evidence given by Sabrina in her American Bankruptcy proceedings in which recourse to the "Fifth Amendment'' figured prominetly - clearly indicated the existence of a loan; that the money carne from, the deceased; that the recipient was Bylamson Bermuda (arid that that company made a loan in the equivalent amount to Sabrina. All this oh the 26 November 1982. On 29 October 1988 Bylamson Bermuda assigned Sabrina's debt to the Administrator of the deceased's estate.

5. While the Official Receiver, who has of course the interests of other creditors, in mind, was, understandably, uncertain as to the vires of that assignment he raised no answered requisition in respect of it before rejecting the proof. Nothing was placed before him, nor introduced into evidence, which rebutted the presumption of regularity which attended the making of the document. His uncertainty may well have been bolstered by his apparent application of too, high a standard of proof.

6. I would therefore, with respect, differ from Jones J when he upheld the rejection of the second proof while agreeing with him in upholding the rejection of the first.

7. I too would allow Civil Appeal 80 of 1989 and dismiss Civil Appeal 126 of 1989 and, in so doing, give some comfort, I trust, to the Official Receiver.

Kempster, JA :

8. Reinforced by a direction from Nazareth J the Standard Chartered Bank Hong Kong Trustee Limited ("the Administrator'') in its capacity as administrator of the estate of Madam Lau Sui Ling, deceased, appeals from orders of Jones J made on 26 July 1988 and 28 April 1989 dismissing appeals from the decisions of the official Receiver, in his capacity as trustee of the property of Madam Sabrina Au-yang Lam Lai Ming ("Sabrina''), a bankrupt and Madam Lau's daughter, rejecting proofs of debt dated 2 May and 5 November 1988 respectively. Neither the official Receiver nor the judge were satisfied by either.

9. Both proofs relate to the receipt, acknowledged in writing by Sabrina on 26 November 1982, of HK$6 million from Bylamson & Associates International Ltd ("Bylamson Bermuda'') as a sum repayable on demand. By the earlier proof it was contended that the monies constituted a loan by the deceased to Sabrina and by the second that they constituted a loan to her by Bylamson Bermuda and that the debt thereby arising had been assigned to the Administrator, under seal, on 29 October 1988. While only one appeal can succeed the Administrator contends that one of them must and favours the earlier. Silke V-P has drawn the analogy of the twin prongs of Cardinal Morton's fork.

10. Madam Lau Siu Ling, a very wealthy woman, died on 8 October 1985 and, on the instructions of her surviviny executors, the Administrator sought and on 9 February 1987 was granted Letters of Administration with the will of the deceased...

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