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Suen Kin-Ning vs Official Receiver of Hong Kong SAR

Suen Kin-Ning vs Official Receiver of Hong Kong SAR

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Published by Pablo Chan
"An unusual case", as exclaimed by the appeal judge. A 75-years old debtor with net worth of about $3.5 million was declared bankrupt for owing $10,000 and the government's official receiver seeked a fee of $300,000 for $8,000 worth of time cost.
"An unusual case", as exclaimed by the appeal judge. A 75-years old debtor with net worth of about $3.5 million was declared bankrupt for owing $10,000 and the government's official receiver seeked a fee of $300,000 for $8,000 worth of time cost.

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Published by: Pablo Chan on Jan 06, 2011
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01/06/2011

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CACV 167/2010
IN THE HIGH COURT OF THEHONG KONG SPECIAL ADMINISTRATIVE REGIONCOURT OF APPEAL
CIVIL APPEAL NO. 167 OF 2010(ON APPEAL FROM HCB NO. 8042 OF 2009)BETWEENSUEN KIN NING DebtorAndThe Incorporated Owners of Tsui Wah Building 1
st
RespondentOfficial Receiver of the HKSAR 2
nd
Respondent Before: Hon Rogers Acting CJHC, Le Pichon and Cheung JJA in CourtDate of Hearing: 23 December 2010Date of Handing Down Judgment: 5 January 2011J U D G M E N THon Rogers Acting CJHC:1.
 
I agree with the judgment of Le Pichon JA.Hon Le Pichon JA:2.
 
This is an appeal by the Official Receiver and a cross appeal by thedebtor from an order of 8 July 2010 of Barma J. The matter before the judgeconcerned an application by the debtor that the fees due (estimated to beapproximately $2.3 million) from the debtor to the Official Receiver be remitted
 
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absolutely or on such terms as the court may think fit. The judge ordered thatthe fees be remitted to the extent of $1.5 million and that the Official Receiver’scosts of $70,000 be paid by the debtor. At the conclusion of the hearing judgment was reserved which we now give.
The background facts
3.
 
This is an unusual case.4.
 
The debtor became the registered owner of a shop (“the property”)in a building known as Tsui Wah Building (“the building”) located in Sai YingPun in December 1987. At all material times the property had been let toSonic Auto Services Ltd (“the tenant”) who, under the terms of the tenancyagreement, was responsible for the payment directly to the incorporated ownersof the building (“the petitioner”) of all service and maintenance charges payableby the owner or occupier under the DMC.5.
 
The debtor emigrated to Canada in 1993, returning to Hong Kongfrom time to time. He maintained a residence in Hong Kong situated at YeeWo Street. His last visit to Hong Kong was in early 2007. He left forCanada in April 2007 and since then has been unable to travel due to ill health.The debtor is 75 years old and lives in a care centre in Canada.6.
 
On 8 April 2008, the petitioner obtained an award against thedebtor from the Small Claims Tribunal in respect of unpaid renovationcontributions aggregating $49,750 and costs of $220. On 28 April 2008, thepetitioner registered a charge dated 22 April 2008 against the property.7.
 
Notwithstanding the registration of the charge, on 23 December2008, the petitioner issued a statutory demand against the debtor in the sum of $85,551.59 comprising the award, unpaid management fees from 1 August 2007
 
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to 31 December 2008 and the third instalment of the renovation contribution.The petitioner served the statutory demand and a letter of appointment on thedebtor by sending them to the property on 2 January 2009 as inquiries as to thedebtor’s whereabouts had apparently yielded no results.8.
 
Although the petitioner was informed by the tenant that thestatutory demand had not been passed to the debtor, the petitioner proceeded toobtain leave on 21 May 2009 to file a bankruptcy petition against the debtor.The application was made,
inter alia
, on the bases that the debtor had“absconded or is keeping out of the way with a view to avoiding service” of thestatutory demand and that there were “no other available/other assets of theDebtor to the Petitioner available for execution” such that there was “noprospect of the sum due been recovered by execution or other means”.9.
 
The petitioner presented a bankruptcy petition in June 2009 basedon the debtor’s failure to satisfy the statutory demand. The petition stated,
inter alia
, that the petitioner
“does not nor does any person on its behalf, hold any security on theJudgment Debtor’s estate, or any part thereof, for the payment of theabove-mentioned sum.”
The verifying affirmation was to the same effect.10.
 
The petitioner then obtained an order for substituted service. Abankruptcy order was made on 5 August 2009.11.
 
The debtor first became aware of the award, the statutory demand,the petition and the bankruptcy order when, on or about 8 October 2009, thedebtor’s daughter found the letter dated 2 October 2009 from the OfficialReceiver to the debtor sent to his Hong Kong residence. It would appear that

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