Creditor's Bankruptcy Petition
A creditor can file a bankruptcy petition to the High Court against a person or persons who have failed to repay debts. Under Section 6 of the Bankruptcy Ordinance, the amount of debt in a creditor's petition must be equal to or exceed $10,000, and must be unsecured.
Before filing a bankruptcy petition, the creditor may be required to issue a statutory demand to the debtor. The creditor must use all reasonable ways to bring the statutory demand to the debtor’s attention, including the delivery of the demand by hand. The creditor may instruct a lawyer to prepare and send out the relevant documents.
If the creditor has reasonable grounds to believe that the debtor has absconded or is trying to avoid receiving the statutory demand, then the creditor can advertise the demand in one or more local newspapers.
If the creditor has obtained a court judgment in previous legal proceedings against the debtor for the repayment of debt and the debtor has failed to pay the judgment debt, then the creditor does not have to issue a statutory demand to the debtor before filing a bankruptcy petition.
Three weeks after issuing the statutory demand and in case the debtor is unable to pay or there is no reasonable prospect of the debtor paying the debt, the creditor or the creditor's lawyer can file a bankruptcy petition with the High Court. The creditor must swear the truthfulness of the relevant petition in front of a lawyer or court officer before filing it with the Court.
The creditor must pay a fee of $1,045 to the High Court and a deposit of $11,250 to the Official Receiver's Office to cover the fees and expenses that may be incurred by the Official Receiver (or the Trustee).
The creditor is notified of the court hearing date for the petition.
The creditor (or the creditor's lawyer) must send sealed copies (copies with the Court's chop) of the bankruptcy petition to the Official Receiver's Office and to the debtor, similar to the way in which a statutory demand is delivered.
At the court hearing (where the creditor is usually represented by a lawyer), the Court may grant a bankruptcy order against the debtor if there is no reasonable objection raised by the debtor, or there is no further agreement between the creditor and the debtor for the settlement of debt.
What can the creditors do after the granting of bankruptcy order?
Any creditor of the bankrupt may request the Official Receiver to call for a general meeting of all the creditors to appoint a Trustee for the bankrupt's assets. If the total value of those assets is unlikely to exceed $200,000, then the Official Receiver will normally be appointed as the Trustee. Each creditor must complete Proof of Debt Form with supporting documents to prove any debt contracted by the Bankrupt. The Proof of Debt Form should be submitted to the Official Receiver's Office.
The Official Receiver sometimes takes the view that the bankrupt has been un-cooperative, and that he is not making full and frank disclosure of his financial affairs. In such circumstances, the Official Receiver and the petitioner might have legitimate reasons to believe that a private examination would be beneficial to the administration of the assets in that more substantial and useful information might be obtained regarding the financial affairs of the bankrupt.
Upon application by the Official Receiver, the court will decide if the case is appropriate for an order for private examination. If the answer is in the affirmative, the court is likely to order the bankrupt to attend before a Master of the High Court to be examined under section 29 of the Bankruptcy Ordinance at such time as directed by the court, with an estimated length of examination (e.g. 2 hours). The petitioner is to have the conduct of the examination by his solicitor or barrister.
The court may further order the bankrupt to provide to the petitioner all documents in his possession, custody or power relating to himself, his dealings or property within certain days of the order (e.g. 21 days).