This is a follow-up to our previous client update on Swiber Holdings Limited written on 29 July 2016. To view our previous update, please click here.

Introduction

Applicability of the Doctrine of Anticipatory Breach to Executed Contracts

In a rare appeal before five judges in the Singapore Court of Appeal, two questions of great practical significance pertaining to contract law were authoritatively and definitively answered:-

Seah Teong Kang v Seah Yong Chwan [2015] SGCA 48

On 10 September 2015, the Singapore Court of Appeal issued a judgment in Seah Teong Kang v Seah Yong Chwan on section 259 of the Companies Act. Section 259 provides:

“Any disposition of the property of the company, including things in action, and any transfer of shares or alteration in the status of the members of the company made after the commencement of the winding up by the Court shall unless the Court otherwise orders be void.”

MF Global Singapore Pte Ltd v Vintage Bullion DMCC [2015] SGHC 162

The Singapore High Court in MF Global Singapore Pte Ltd v Vintage Bullion DMCC considered a contention by customers of an insolvent brokerage firm that profits made from certain leveraged foreign exchange and leveraged commodity transactions with the firm were held on trust for the customers. The court disagreed. This meant that the customers can only stand as unsecured creditors over the profits. 

Facts

S210(1) of the Companies Act allows the Court to order a meeting between a company and its creditors to consider compromises or arrangements. In Re Sembawang Engineers and Constructors Pte Ltd [2015] SGHC 20, the Singapore High Court granted an application by Sembawang Engineers and Constructors Pte Ltd (the “Company”) for a s210(1) order. The applicant Company was successfully represented by Patrick Ang, Low Poh Ling and Chew Xiang from Rajah & Tann Singapore LLP.

A scheme of arrangement is an important avenue for a company under financial stress to compromise debts owed to specified categories of creditors. In broad terms, there are four steps to a scheme. The first step is to determine which creditors are to be covered under the scheme, categorize them, and to seek leave from the High Court to convene a meeting of each category of creditors. The second step is to hold and pass the appropriate resolutions at the meeting(s) of creditors. The third step is to obtain the sanction of the High Court of the scheme.

In the latest decision in Kao Chai-Chau Linda v Fong Wai Lyn Carolyn and others [2015] SGHC 260, the Singapore courts have taken another step toward controlling the costs involved in insolvency and restructuring situations. In Kao, an application was made to the Singapore High Court to tax the fees of court-appointed receivers and managers. The application was heard before the learned Justice Steven Chong.

Introduction

The fees charged by insolvency practitioners can sometimes be a matter of contention, with different interested parties having differing expectations. Further, there is no comprehensive set of guidelines or regulations in Singapore setting out the basis on which insolvency practitioners should determine their fees, as well as the level of information on fees that should be provided to stakeholders. This sometimes leads to unhappiness as to the quantum and necessity of fees after the event.

The Defendant served 2 payment claims on the Plaintiff for work done up to end of November 2014 in the month of December 2014. It was common ground that the revised payment claim served on 26 December 2014 (“PC3R”), replaced the earlier payment claim dated 5 December 2014. • The Defendant then served a third payment claim (“PC4”) in the same payment claim period, i.e., on 30 December 2014, this time for work done up to end of December 2014. • PC3R was not withdrawn by the Defendant.