Hong Kong Lawyer

November 2017

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Page 65 of 103

CASES IN BRIEF 案 例 撮 要 BANKRUPTCY Re Leung Yat Tung (No. 2) [2017] HKEC 1847 Court of First Instance Bankruptcy Proceedings No. 2019 of 2000 Mimmie Chan J in Chambers 29 August 2017 Proof of debt – taxed costs incurred by creditor in presenting petition – whether debt provable in bankruptcy under s. 34 or costs and charges under s. 37 – Bankruptcy Ordinance (Cap. 6) The Official Receiver (the "OR") rejected as a "debt provable in bankruptcy" under s. 34 of the Bankruptcy Ordinance (Cap. 6) (the "BO"), the taxed costs of C, the petitioning creditor, for presenting a bankruptcy petition against B (the "Petition Costs"). The basis of the rejection was that such costs were to be paid under s. 37 as part of the costs and charges of the bankruptcy, as distinct from other debts proved in the bankruptcy which were to be paid pari passu out of B's assets, after the payment of costs and other priority debts under s. 38. C now applied under s. 83 of the BO to reverse or vary the OR's decision. Held, dismissing the application, that: • Section 37 of the BO, in particular s. 39(1)(b), clearly provided that the taxed costs of the bankruptcy petition were to be paid first, from the bankrupt's assets, as one item of the costs and charges, by way of priority. Section 38(1) set out, after the costs and expenses referred to in s. 37, the debts to be paid "in priority to all other debts" which under s. 38(4) were expressly made subject to the provisions of s. 37, and to the retention of such sums as might be necessary for the costs of the administration. • C was not unfairly prejudiced due to its inability to prove for the Petition Costs. Under the BO, such costs would be paid out of B's estate in priority to preferential and other proved debts. That was the advantage conferred on and enjoyed by C, for having to incur costs in presenting a petition for bankruptcy. It would recover its taxed costs in full under s. 37 from B's assets, before distribution to other creditors, who (unlike C) had to compete for payment pari passu to the extent that their debts were unsecured. • It was therefore not unjust that C was not entitled to a vote on the administration of the bankruptcy, in respect of the Petition Costs. C was still entitled to vote in accordance with that part of the debt it proved for the underlying judgment sum and other costs of the bankruptcy ordered by the Court and accepted by the OR, which were to be paid by the debtor/B. 破 產 Re Leung Yat Tung (No. 2) [2017] HKEC 1847 原訟法庭 高院破產案件2000年第2019號 原訟法庭法官陳美蘭內庭聆訊 2017年8月29日 債權證明 — 債權人因提出破產呈 請而招致的經評定訟費 — 是否 屬於第34條下的破產案中可證債 權,抑或屬於第37條下的訟費及 費用 — 《破產條例》(第6章)第34 、37條 一名債權人(下稱C)提出呈請,要求法庭頒 令涉案人(下稱B)破產。對於C因此而招致 的經評定訟費(下稱「涉案訟費」),C提交 債權證明,但破產管理署署長(下稱「署 長」)拒絕接納涉案訟費屬於《破產條例》 (第6章)第34條所指的「破產案中可證債 權」,所持理據為涉案訟費須作為同一條 例第37條所指的破產案訟費及費用而予以 支付,而非破產案中的經證明債權,而根 據同一條例第38條,該等債權須於費用和 其他優先債項獲支付後,同時及同等地從 B的資產中予以償付。C現根據同一條例第 83條提出申請,要求法庭推翻或更改署長 的決定。 裁決 — 駁回申請﹕ • 《破產條例》第37條(特別是當中第 (1)(b)款)清楚規定,破產案中的經評 定訟費須作為一項訟費及費用而優先 從破產人的資產中獲得支付。在第37 條所提述的訟費及費用之後,第38(1) 條訂明各類「須在償付所有其他債項 前優先償付」的債項,而第38(4)條訂 64 www.hk-lawyer.org •  November 2017

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