DGJ v Ocean Tankers (Pte) Ltd (in liquidation)[2024] SGCA 57
The Court of Appeal ruled that assignments may be ineffective for offending public policy. Additionally, an assignment of a bare right to sue must not prejudice the administration of justice. Generally, non-assignment clauses would also prohibit the assignment of contractual and related rights.
Facts
When the restructuring officer regime was introduced, it was assumed by many that joint provisional liquidators would no longer be appointed for restructuring purposes, having been overtaken by the new regime. The recent decision of Re Kingkey Financial International (Holdings) Ltd suggests that this assumption may not be sound. It also raises several interesting points regarding the restructuring officer regime that merit further consideration. This article considers the Kingkey case, and the points arising from it
Re Ocean Tankers (Pte) Ltd (in liquidation) [2023] SGHC 330
The Singapore High Court recently ruled on issues relating to the assignability of claims, coverage of non-assignment clause and insolvency set-off.
Facts
In a November 17, 2016 ruling likely to impact ongoing debt restructurings, pending bankruptcy proceedings and negotiations of new debt issuances, the Third Circuit recently overturned refusals by both the Delaware bankruptcy court and district court to enforce “make-whole” payments from Energy Futures Holding Company LLC and EFIH Finance Inc. (collectively, “EFIH”) to rule that the relevant indenture provisions supported the payments. The case was remanded to the bankruptcy court for further proceedings.
On May 15, 2012, the United States Court of Appeals for the Eleventh Circuit issued a decision[1] in the much-watched litigation involving the residential construction company, TOUSA, Inc. ("TOUSA"). The decision reversed the prior decision of the District Court, [2] reinstating the ruling of the Bankruptcy Court.[3]
Background
Indentures often contain make-whole premiums payable upon early redemption of the debt, and term B loan agreements often include "soft call" protection in the form of prepayment premiums during the early life of the loan. If the debt issuer becomes subject to a chapter 11 proceeding after the debt issuance, the question then arises as to how this payment obligation is to be treated: Does the make-whole or prepayment premium constitute unmatured interest due as a result of the debt acceleration, which would be disallowed, or is it liquidated damages?