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Press Summary (English)
Press Summary (Chinese)
FACV No. 13 of 2022
[2023] HKCFA 9
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 13 of 2022 (CIVIL)
(ON APPEAL FROM CACV NO. 393 of 2021)
___________________________
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BETWEEN
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Re: GUY KWOK-HUNG LAM (林國雄)
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Respondent
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(Debtor)
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and
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Ex Parte: TOR ASIA CREDIT MASTER FUND LP
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Appellant
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(Creditor /
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Petitioner)
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___________________________
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Before:
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Chief Justice Cheung, Mr Justice Ribeiro PJ,
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Mr Justice Fok PJ, Mr Justice Lam PJ and
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Mr Justice French NPJ
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Date of Hearing:
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2 March 2023
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Date of Judgment:
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4 May 2023
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___________________________
J U D G M E N T
___________________________
Chief Justice Cheung:
1.
I agree with the judgment of Mr Justice French NPJ.
Mr Justice Ribeiro PJ:
2.
I agree with the judgment of Mr Justice French NPJ.
Mr Justice Fok PJ:
3.
I agree with the judgment of Mr Justice French NPJ.
Mr Justice Lam PJ:
4.
I agree with the judgment of Mr Justice French NPJ.
Mr Justice French NPJ:
Introduction
5.
This appeal arises out of a bankruptcy order made on 21 July 2021 against the Respondent pursuant to a creditor’s petition presented by the Appellant in the Court of First Instance (“
CFI
”) on 15 June 2020. The Respondent said the debt alleged by the Appellant was disputed and should be determined by a New York court under an exclusive jurisdiction clause (“
EJC
”) in the contract between him and the Appellant which gave rise to the alleged debt. The CFI judge (“
Judge
”) held that the Respondent had failed to show that there was a
bona fide
dispute on substantial grounds in respect of the debt and made a bankruptcy order against the Respondent (“
CFI
Judgment
”).
[1]
The Court of Appeal (“
CA
”) set aside the orders made by the CFI and dismissed the petition on the basis of the EJC (“
CA Judgment
”).
[2]
The Appellant now appeals against the decision of the CA.
Factual background
6.
The Appellant is an exempted limited partnership formed and registered in the Cayman Islands. The Respondent is a solicitor qualified to practice in Hong Kong. He is the founder of two groups of companies providing aged care services on the Chinese Mainland and in the United States, referred to in this judgment as CP China and CP US respectively.
7.
On 11 July 2017, the Appellant entered into a Credit and Guaranty Agreement (“
Credit Agreement
”) with the ultimate holding company of CP China, CP Global Inc (the “
Borrower”
). Pursuant to that agreement, which named the Respondent as personal guarantor, the Appellant advanced term loans totalling US$29,500,000 to the Borrower.
8.
There were various se
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