Wong (Trustee), in the matter of Mackellar (Bankrupt) v Mackellar

The case of Wong (Trustee), in the matter of Mackellar (Bankrupt) v Mackellar involved an application for recognition of a foreign proceeding as a foreign main proceeding or foreign non-main proceeding under the Cross-Border Insolvency Act 2008 (Cth) and the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law. The proceeding in question was a bankruptcy proceeding in the High Court of the Hong Kong Special Administrative Region. The respondent, Mr Mackellar, filed no evidence in opposition and did not oppose the orders sought by the applicants, the trustees in bankruptcy.

The legal issues before the court were whether the Hong Kong proceeding should be recognised as a foreign main proceeding or a foreign non-main proceeding, and whether appropriate ancillary relief should be granted under Art 21 of the Model Law. The court considered the evidence and submissions of the trustees and found that Mr Mackellar's centre of main interests was in Hong Kong, despite his physical presence in Australia due to the current Covid-19 pandemic. The court also found that the Hong Kong proceeding should be recognised as a foreign main proceeding.

The court granted the orders sought by the trustees, including a stay on proceedings against the debtor or any of his assets, a stay on enforcement of judgments or orders, and suspension of dealings in his property. The court also ordered that the administration and realisation of the debtor’s assets located in Australia be entrusted to the foreign representatives and that all powers normally available to a trustee in bankruptcy under the Bankruptcy Act 1966 (Cth) be made available to the foreign representatives.

In summary, the court recognised the Hong Kong proceeding as a foreign main proceeding and granted the ancillary relief sought by the trustees. The court also made orders for the respondent to be examined and to pay the applicants' costs.