Tong's Limited & Chung Ho Tong v Morris Hedstrom Ltd [1977] FJSC 122; Action 68 of 1976 (19 April 1977)

IN THE SUPREME COURT OF FIJI
BANKRUPTCY

ACTION No. 68 OF 1976

BETWEEN

TONG'S LIMITED & CHUNG HO TONG
Debtor

AND

MORRIS HEDSTROM LTD
Creditor

DECISION

The petitioning creditor presented its petition on the 28th January 1977 seeking a Receiving Order against the abovenamed Chung Ho Tong. The petition alleged that the said Chung Ho Tong had committed an act of bankruptcy in failing to comply with the requisitions of a Bankruptcy Notice issue out of this Court on the 5th day of November.

At the adjourned hearing on the 29th day of March 1977 Mr. Marquardt-Gray for the judgment debtor Chung Ho Tong opposed the petition on the grounds that it was not proper to enforce payment of a debt by bankruptcy pleadings and quoted in support of his Argument Ex Parte Griffin. In re Addams (1879) 12 Ch. p. 480.

This case is no authority for Mr. Gray's proposition that enforcement of payment of a debt by bankruptcy proceedings is not proper. In Griffin's case the petitioning creditor sought by bankruptcy proceedings to perpetuate a fraud.

James L. J. in that case said "I think I never knew a case so transparent as to the fraud with which the whole thing was concerned and the oppression which it was intended to exercise. It would, I think be a shocking thing for any Court of Justice in a civilized country to be made the instrument of proceedings like these".

In Griffin's case the petitioning creditor had a statutory right to an adjudication. Nevertheless the Court refused on the facts to make an order. Brett, L. J. in concurring that the appeal should be dismissed said: "...... I am too old to be shocked at anything, but certainly a viler fraud I have never heard of".

The petitioning creditor in the instant case has a statutory right under the Bankruptcy Ordinance to present a petition and seek a receiving order. There is no evidence of any impropriety by the petitioning creditor in the application before me and it has been established that the judgment debtor Chung Ho Tong has committed an act of bankruptcy by failing to comply with the requisitions of a Bankruptcy Notice issued out of this Court on the 5th November 1976.

It was admitted that Chung Ho Tong owed the judgment debt of $1720.46. There is no evidence of any stay of execution and the judgment debtor has not secured the debt or attempted to satisfy this Court that he has any counterclaim set off or cross demand against the judgment creditor. The petitioning creditor is entitled to the order sought by it.

I accordingly make a Receiving Order against the estate of the said Chung Ho Tong.

(SGD) R.G. KERMODE
JUDGE

Suva,
19th April, 1977.