由此
A A
B HCB 4957/2010 B
C C
IN THE HIGH COURT OF THE
D
HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E E
IN BANKRUPTCY PROCEEDINGS NO. 4957 OF 2010
F
____________ F
G G
Re: CHAN WAI MAN ANTHONY (陳維文) Debtor
H Ex Parte: ACE LIFE INSURANCE COMPANY LTD Petitioner H
(formerly known as NEW YORK LIFE
I INSURANCE WORLDWIDE LTD) I
____________
J J
Before: Mr Recorder A Chow, SC in Court
K K
Date of Hearing: 13 April 2011
L Date of Judgment: 26 April 2011 L
M M
_______________
N JUDGMENT N
_______________
O O
P
1. This is a creditor’s petition for a bankruptcy order again Chan P
Q
Wai Man Anthony (“the Debtor”). Q
R R
The Judgment debt
S S
2. The Petitioner, ACE Life Insurance Company Ltd, formerly
T known as New York Life Insurance Worldwide Ltd, is an insurance T
company carrying on business in Hong Kong. The Debtor was formerly
U U
V V
由此
A
-2- A
B an agent engaged by the Petitioner to market and sell insurance policies for B
the Petitioner pursuant to a series of written agreements made in June and
C C
July 2006.
D D
3. Following the termination of said agreements effective on
E E
6 April 2008, the Petitioner commenced an action in the District Court of
F Hong Kong (DCCJ 3843/2008) against the Debtor for repayment of certain F
special allowances and confirmation bonus, in the net amount of
G G
HK$143,955.67, advanced to the Debtor by the Petitioner.
H H
4. On 24 October 2008, the Petitioner obtained default judgment
I I
(“the Judgment”) against the Debtor in DCCJ 3843/2008 for the principal
J amount of HK$143,955.67 plus interest thereon and costs of the action. J
K K
The Settlement Agreement
L L
5. A partial repayment of the judgment debt in the amount of
M M
HK1,300.00 was made by the Debtor to the Petitioner on 12 March 2009.
N N
6. On 21 April 2009, the Petitioner and the Debtor entered into a
O O
written Settlement Agreement (subsequently supplemented by a letter
P
dated 29 June 2009), under which the Debtor agreed to pay to the P
Petitioner the total amount of HK$189,524.68 (inclusive of interest on the
Q Q
principal debt calculated up to 31 December 2011) by a series of 40
R instalments (excluding the partial payment of HK$1,300.00 made on 12 R
March 2009) on dates between 21 April 2009 and 30 June 2012 specified
S S
in Clause (2) of the Settlement Agreement in satisfaction of the
T outstanding balance of the judgment debt. T
U U
V V
由此
A
-3- A
B 7. It is expressly provided in Clause (3) of the Settlement B
Agreement that if the Debtor fails to pay or pay in full any of the
C C
instalments on the respective due dates, the Petitioner shall be entitled to
D enforce the Judgment forthwith for the recovery of all outstanding amounts D
then due and owing in a lump sum without further notice.
E E
F 8. After payment of the instalment due on 30 May 2009, the F
Debtor has defaulted in paying any further instalments under the
G G
Settlement Agreement.
H H
I The Statutory Demand and Bankruptcy Petition I
9. The Debtor’s default led to a statutory demand (“the Statutory
J J
Demand”) being issued by the Petitioner dated 10 February 2010. The
K K
Statutory Demand was served on the Debtor personally on 2 March 2010.
L L
10. The Statutory Demand is for the amount of HK$164,671.94,
M M
made up of (i) the balance of the principal debt in the sum of
HK$143,869.33, (ii) the balance of fixed costs in the sum of HK$1,367.51, N
N
and (iii) the legal costs and disbursement agreed under the Settlement
O O
Agreement in the sum of HK$19,435.10. The Statutory Demand has
P
neither been complied with nor set aside. P
Q Q
11. On 7 July 2010, the Petitioner presented the Bankruptcy
R Petition herein against the Debtor. The Bankruptcy Petition was served on R
the Debtor personally on 21 July 2010.
S S
T T
U U
V V
由此
A
-4- A
B The Debtor failed to set aside the Judgment B
C
12. On 21 January 2011, the Debtor made an application in the C
District Court to set aside the default Judgment.
D D
E
13. The Debtor’s application was dismissed by Master G Own on E
3 March 2011. The Debtor’s further appeal against the decision of Master
F F
G Own was dismissed by Deputy Judge Wilson Chan on 29 March 2011.
G I am told that the Debtor has not applied for leave to appeal against the G
decision of the learned Deputy Judge to the Court of Appeal.
H H
I 14. Therefore, the position at present is that the Judgment is valid I
and binding on the Debtor.
J J
K K
Petitioner has failed to prove the debt
L 15. At the hearing of the Petition, Miss Minhao for the Petitioner L
made it clear that the Petition is based on an amount outstanding under the
M M
Settlement Agreement and not under the Judgment. That this is so is clear
N on the face of the Statutory Demand and the Bankruptcy Petition. N
O O
16. However, there is nothing in the Settlement Agreement which
P provides that, upon default in payment of any instalment on the due date P
by the Debtor, the whole amount of the outstanding indebtedness under the
Q Q
Settlement Agreement shall immediately become due and payable. When
R this was point out to Miss Minhao, she responded by relying upon Clause R
(5) of the Settlement Agreement, which states as follows: “The granting of
S S
indulgence of time will not in any way affect the rights of the Creditor to
T take immediate action against the Debtor for the recovery of the Debt then T
due and owing to the Creditor”. It seems to me obvious that this clause
U U
V V
由此
A
-5- A
B only means that the right (if any) of the Petitioner to take action against the B
Debtor to recover the “Debt” (defined in Clause (2) of the Settlement
C C
Agreement to mean the sum of HK$189,524.68 more particularly set out in
D Schedule A to the Settlement Agreement) would not be affected by any D
granting of time by the Petitioner to the Debtor to make payment of any
E E
instalment, but does not give the Petitioner a right to treat the whole
F outstanding indebtedness under the Settlement Agreement as immediately F
due and payable upon default by the Debtor in making payment of any
G G
instalment on the due date.
H H
17. Miss Minhao did not refer the Court to any other basis to
I I
support the Petitioner’s argument that, in the circumstances which have
J J
occurred, the whole amount of the outstanding indebtedness under the
Settlement Agreement has become immediately due and payable by the K
K
Debtor to the Petitioner.
L L
18. I have considered whether the Petitioner can rely upon Clause M
M
(3) of the Settlement Agreement, which as earlier mentioned provides that
N N
the Petitioner shall be entitled to enforce the Judgment forthwith for the
O
recovery of all outstanding amounts due and owing in a lump sum upon O
the Debtor’s failure to pay or pay in full any of the instalments on the
P P
respective due dates. However, Miss Minaho for the Petitioner has
Q maintained that the Statutory Demand and the Bankruptcy Petition are not Q
based on the Judgment. It is also clear that the amounts mentioned in the
R R
Statutory Demand and the Bankruptcy Petition include what is described
S as the “Agreed Legal Costs and Disbursement” in the sum of S
HK$19,435.10, which is not something provided for in the Judgment.
T T
U U
V V
由此
A
-6- A
B 19. In all the circumstances, I am not satisfied with the proof of B
the debt relied upon by the Petitioner as the basis of the Bankruptcy
C C
Petition.
D D
20. It may be that the Petitioner is able to proceed with another
E E
statutory demand based on the Judgment, but that is another matter.
F F
G The Debtor’s opposition to the Petition G
21. The above conclusion makes it unnecessary for me to consider
H H
the validity of the Debtor’s grounds of opposition to the Petition. For the
I sake of completeness, I shall deal with them briefly. I
J J
22. The Debtor filed an affirmation on 10 January 2010 in
K K
opposition to the Petition and has made further submissions at the hearing
of the Petition to oppose the Petition. L
L
M M
23. Essentially, three points have been raised by the Debtor in
opposition to the Petition, namely, that:- N
N
(1) the default Judgment was improperly obtained by the
O O
Petitioner;
P P
(2) the termination of the his agency agreement by the Petitioner
Q
was wrongful; Q
(3) it was a condition of the Settlement Agreement that the
R R
Petitioner would carry out investigation or inquiry into the
S Petitioner’s claim of wrongful termination of his agency but S
the Petitioner has failed to perform such condition.
T T
U U
V V
由此
A
-7- A
B 24. In respect of (1) and (2), the Debtor’s arguments have been B
rejected by Master G Own and Deputy Judge Wilson Chan in the District
C C
Court. In any event, the Judgment is at present valid and binding on the
D Debtor. D
E E
25. In respect of (3), the Debtor’s allegation is not supported by
F his affirmation filed on 10 January 2010. In that affirmation, the Debtor F
alleged instead that he entered into the Settlement Agreement because the
G G
Petitioner had told him that if he did not repay the outstanding debt the
H Petitioner would apply for a bankruptcy order against him. Further, the H
alleged condition is not referred to in the Settlement Agreement, or
I I
mentioned in the correspondence leading up to the Settlement Agreement.
J J
26. Overall, had I been satisfied with the Petitioner’s proof of the K
K
debt relied upon as the basis of the Bankruptcy Petition, I would not have
L L
considered that the Debtor has shown that there is a bona fide dispute on
substantial grounds of the debt. M
M
N N
Conclusion
O O
27. I dismiss the Bankruptcy Petition with costs to the Debtor.
P P
Q Q
R R
(Anderson Chow, SC)
S Recorder of the Court of First Instance S
High Court
T T
U U
V V
由此
A
-8- A
B Miss Liao Minhao, of Messrs Kennedys, for the Petitioner B
C The Debtor, in person C
The Officer Receiver be excused D
D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
由此
A A
B HCB 4957/2010 B
C C
IN THE HIGH COURT OF THE
D
HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E E
IN BANKRUPTCY PROCEEDINGS NO. 4957 OF 2010
F
____________ F
G G
Re: CHAN WAI MAN ANTHONY (陳維文) Debtor
H Ex Parte: ACE LIFE INSURANCE COMPANY LTD Petitioner H
(formerly known as NEW YORK LIFE
I INSURANCE WORLDWIDE LTD) I
____________
J J
Before: Mr Recorder A Chow, SC in Court
K K
Date of Hearing: 13 April 2011
L Date of Judgment: 26 April 2011 L
M M
_______________
N JUDGMENT N
_______________
O O
P
1. This is a creditor’s petition for a bankruptcy order again Chan P
Q
Wai Man Anthony (“the Debtor”). Q
R R
The Judgment debt
S S
2. The Petitioner, ACE Life Insurance Company Ltd, formerly
T known as New York Life Insurance Worldwide Ltd, is an insurance T
company carrying on business in Hong Kong. The Debtor was formerly
U U
V V
由此
A
-2- A
B an agent engaged by the Petitioner to market and sell insurance policies for B
the Petitioner pursuant to a series of written agreements made in June and
C C
July 2006.
D D
3. Following the termination of said agreements effective on
E E
6 April 2008, the Petitioner commenced an action in the District Court of
F Hong Kong (DCCJ 3843/2008) against the Debtor for repayment of certain F
special allowances and confirmation bonus, in the net amount of
G G
HK$143,955.67, advanced to the Debtor by the Petitioner.
H H
4. On 24 October 2008, the Petitioner obtained default judgment
I I
(“the Judgment”) against the Debtor in DCCJ 3843/2008 for the principal
J amount of HK$143,955.67 plus interest thereon and costs of the action. J
K K
The Settlement Agreement
L L
5. A partial repayment of the judgment debt in the amount of
M M
HK1,300.00 was made by the Debtor to the Petitioner on 12 March 2009.
N N
6. On 21 April 2009, the Petitioner and the Debtor entered into a
O O
written Settlement Agreement (subsequently supplemented by a letter
P
dated 29 June 2009), under which the Debtor agreed to pay to the P
Petitioner the total amount of HK$189,524.68 (inclusive of interest on the
Q Q
principal debt calculated up to 31 December 2011) by a series of 40
R instalments (excluding the partial payment of HK$1,300.00 made on 12 R
March 2009) on dates between 21 April 2009 and 30 June 2012 specified
S S
in Clause (2) of the Settlement Agreement in satisfaction of the
T outstanding balance of the judgment debt. T
U U
V V
由此
A
-3- A
B 7. It is expressly provided in Clause (3) of the Settlement B
Agreement that if the Debtor fails to pay or pay in full any of the
C C
instalments on the respective due dates, the Petitioner shall be entitled to
D enforce the Judgment forthwith for the recovery of all outstanding amounts D
then due and owing in a lump sum without further notice.
E E
F 8. After payment of the instalment due on 30 May 2009, the F
Debtor has defaulted in paying any further instalments under the
G G
Settlement Agreement.
H H
I The Statutory Demand and Bankruptcy Petition I
9. The Debtor’s default led to a statutory demand (“the Statutory
J J
Demand”) being issued by the Petitioner dated 10 February 2010. The
K K
Statutory Demand was served on the Debtor personally on 2 March 2010.
L L
10. The Statutory Demand is for the amount of HK$164,671.94,
M M
made up of (i) the balance of the principal debt in the sum of
HK$143,869.33, (ii) the balance of fixed costs in the sum of HK$1,367.51, N
N
and (iii) the legal costs and disbursement agreed under the Settlement
O O
Agreement in the sum of HK$19,435.10. The Statutory Demand has
P
neither been complied with nor set aside. P
Q Q
11. On 7 July 2010, the Petitioner presented the Bankruptcy
R Petition herein against the Debtor. The Bankruptcy Petition was served on R
the Debtor personally on 21 July 2010.
S S
T T
U U
V V
由此
A
-4- A
B The Debtor failed to set aside the Judgment B
C
12. On 21 January 2011, the Debtor made an application in the C
District Court to set aside the default Judgment.
D D
E
13. The Debtor’s application was dismissed by Master G Own on E
3 March 2011. The Debtor’s further appeal against the decision of Master
F F
G Own was dismissed by Deputy Judge Wilson Chan on 29 March 2011.
G I am told that the Debtor has not applied for leave to appeal against the G
decision of the learned Deputy Judge to the Court of Appeal.
H H
I 14. Therefore, the position at present is that the Judgment is valid I
and binding on the Debtor.
J J
K K
Petitioner has failed to prove the debt
L 15. At the hearing of the Petition, Miss Minhao for the Petitioner L
made it clear that the Petition is based on an amount outstanding under the
M M
Settlement Agreement and not under the Judgment. That this is so is clear
N on the face of the Statutory Demand and the Bankruptcy Petition. N
O O
16. However, there is nothing in the Settlement Agreement which
P provides that, upon default in payment of any instalment on the due date P
by the Debtor, the whole amount of the outstanding indebtedness under the
Q Q
Settlement Agreement shall immediately become due and payable. When
R this was point out to Miss Minhao, she responded by relying upon Clause R
(5) of the Settlement Agreement, which states as follows: “The granting of
S S
indulgence of time will not in any way affect the rights of the Creditor to
T take immediate action against the Debtor for the recovery of the Debt then T
due and owing to the Creditor”. It seems to me obvious that this clause
U U
V V
由此
A
-5- A
B only means that the right (if any) of the Petitioner to take action against the B
Debtor to recover the “Debt” (defined in Clause (2) of the Settlement
C C
Agreement to mean the sum of HK$189,524.68 more particularly set out in
D Schedule A to the Settlement Agreement) would not be affected by any D
granting of time by the Petitioner to the Debtor to make payment of any
E E
instalment, but does not give the Petitioner a right to treat the whole
F outstanding indebtedness under the Settlement Agreement as immediately F
due and payable upon default by the Debtor in making payment of any
G G
instalment on the due date.
H H
17. Miss Minhao did not refer the Court to any other basis to
I I
support the Petitioner’s argument that, in the circumstances which have
J J
occurred, the whole amount of the outstanding indebtedness under the
Settlement Agreement has become immediately due and payable by the K
K
Debtor to the Petitioner.
L L
18. I have considered whether the Petitioner can rely upon Clause M
M
(3) of the Settlement Agreement, which as earlier mentioned provides that
N N
the Petitioner shall be entitled to enforce the Judgment forthwith for the
O
recovery of all outstanding amounts due and owing in a lump sum upon O
the Debtor’s failure to pay or pay in full any of the instalments on the
P P
respective due dates. However, Miss Minaho for the Petitioner has
Q maintained that the Statutory Demand and the Bankruptcy Petition are not Q
based on the Judgment. It is also clear that the amounts mentioned in the
R R
Statutory Demand and the Bankruptcy Petition include what is described
S as the “Agreed Legal Costs and Disbursement” in the sum of S
HK$19,435.10, which is not something provided for in the Judgment.
T T
U U
V V
由此
A
-6- A
B 19. In all the circumstances, I am not satisfied with the proof of B
the debt relied upon by the Petitioner as the basis of the Bankruptcy
C C
Petition.
D D
20. It may be that the Petitioner is able to proceed with another
E E
statutory demand based on the Judgment, but that is another matter.
F F
G The Debtor’s opposition to the Petition G
21. The above conclusion makes it unnecessary for me to consider
H H
the validity of the Debtor’s grounds of opposition to the Petition. For the
I sake of completeness, I shall deal with them briefly. I
J J
22. The Debtor filed an affirmation on 10 January 2010 in
K K
opposition to the Petition and has made further submissions at the hearing
of the Petition to oppose the Petition. L
L
M M
23. Essentially, three points have been raised by the Debtor in
opposition to the Petition, namely, that:- N
N
(1) the default Judgment was improperly obtained by the
O O
Petitioner;
P P
(2) the termination of the his agency agreement by the Petitioner
Q
was wrongful; Q
(3) it was a condition of the Settlement Agreement that the
R R
Petitioner would carry out investigation or inquiry into the
S Petitioner’s claim of wrongful termination of his agency but S
the Petitioner has failed to perform such condition.
T T
U U
V V
由此
A
-7- A
B 24. In respect of (1) and (2), the Debtor’s arguments have been B
rejected by Master G Own and Deputy Judge Wilson Chan in the District
C C
Court. In any event, the Judgment is at present valid and binding on the
D Debtor. D
E E
25. In respect of (3), the Debtor’s allegation is not supported by
F his affirmation filed on 10 January 2010. In that affirmation, the Debtor F
alleged instead that he entered into the Settlement Agreement because the
G G
Petitioner had told him that if he did not repay the outstanding debt the
H Petitioner would apply for a bankruptcy order against him. Further, the H
alleged condition is not referred to in the Settlement Agreement, or
I I
mentioned in the correspondence leading up to the Settlement Agreement.
J J
26. Overall, had I been satisfied with the Petitioner’s proof of the K
K
debt relied upon as the basis of the Bankruptcy Petition, I would not have
L L
considered that the Debtor has shown that there is a bona fide dispute on
substantial grounds of the debt. M
M
N N
Conclusion
O O
27. I dismiss the Bankruptcy Petition with costs to the Debtor.
P P
Q Q
R R
(Anderson Chow, SC)
S Recorder of the Court of First Instance S
High Court
T T
U U
V V
由此
A
-8- A
B Miss Liao Minhao, of Messrs Kennedys, for the Petitioner B
C The Debtor, in person C
The Officer Receiver be excused D
D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V