E C Investment Holding Pte Ltd v Ridout Residence Pte Ltd and another (Orion Oil Limited and another, Interveners)
Judge | Quentin Loh J |
Judgment Date | 15 September 2010 |
Neutral Citation | [2010] SGHC 270 |
Published date | 11 October 2010 |
Defendant Counsel | Kabir Singh (Clifford Chance),Kelvin Tan Teck San (Drew & Napier),Tan Cheng Han, SC and P Balachandran (Robert Wang & Woo LLC),Phua Siow Choon (Michael B B Ong & Co),Alvin Yeo, SC and Melvin Lum (WongPartnership LLP) |
Hearing Date | 06 July 2010,09 July 2010,08 July 2010,15 July 2010,05 July 2010,16 July 2010,07 July 2010 |
Court | High Court (Singapore) |
Subject Matter | Land |
Docket Number | Originating Summons No 1357 of 2009 |
Plaintiff Counsel | Lee Eng Beng, SC, Disa Sim and Jonathan Lee (Rajah & Tann) |
39A Ridout Road, Singapore, (the “Property”), is a rectangular plot of land comprising some 40,600 square feet, or 3779 square metres, in a good class bungalow area. A two-storey house together with a swimming pool and tennis court sits on this elevated plot with good frontage of about 170 feet, (52 metres), along Ridout Road and a generous depth of 240 feet, (73 metres).
The 1
Two parties are claiming specific performance of the sale of the Property to them:
The 1
From his affidavit dated 23 December 2009, (set out in 2.AB pp 400-461), in separate proceedings, (OSB No 58/2009/V), AA appears to have been a man of some means. He was originally an Indonesian citizen and businessman, holding a Masters in Mechanical Engineering from Fachhochschule Dusseldorf, Germany. At one time he was a significant shareholder in two Indonesian banks, PT Bank Kredit Asia and PT Bank Pelita, but in the 1997 financial meltdown, there was a run on “his” banks and they were taken over by an Indonesian Government agency known as IBRA in 1998. AA came to Singapore in 2000 to start on a clean slate. In 2004 he became a Singapore citizen. Having worked in the financial sector for most of his working life, AA became an investor in several companies. This included acquiring a 28% stake in the Singapore Petroleum Company in 2003 through his own company, Kapital Asia Co. Ltd, (“Kapital Asia”), and a substantial stake in Keppel Telecommunications and Transportation Ltd as well as coal mines in Indonesia.
AA purchased the Property in September 2006 for $28 million. He put up $11 million and the stamp duty of over $744,000 from his own funds and took the balance $17 million from a facility of $30 million extended to him by HLF earlier in June 2006. As noted above, HLF registered its mortgage over the Property in September 2006.
On 16 May 2008, HLF recalled the loan and terminated their facility. Payment was not forthcoming and HLF eventually commenced OS No. 1458 of 2008/A, obtaining an Order of Court on 2 February 2009 for the 1
It was within this context that AA came to give the 1
HLF filed a Writ of Possession on 22 September 2009 and vacant possession of the Property was delivered to HLF on 22 October 2009. There were a number of abortive attempts to auction off the Property but I was told by counsel during the interlocutory stages that the auction, after the grant of the 1
It is necessary to deal with an intervening development. At an interlocutory hearing on 18 May 2010, I was told by counsel for the 1
AA filed OSB No. 58 of 2009/V on 23 December 2009 and obtained an order under section 45(3) of the Bankruptcy Act (the “section 45(3) IVA Order”) from Choo J on 17 May 2010. AA had to submit his proposal by the end of June 2010.
On the first day of the hearing of this OS, 5 July 2010, Mr David Chan from Messrs Shook Lin & Bok LLP appeared stating that he was acting for AA’s nominees under AA’s Individual Voluntary Arrangement, (“IVA”) and asked for the proceedings to be stayed pending the decision of the Creditors’ Meeting scheduled for 23 July 2010. Mr Chan said the IVA proposal had been submitted to the nominees on 25 June 2010. The notices had “been done”, (which I take to mean had been drafted and finalised), and they would be sent to all creditors shortly.
Mr Chan submitted that I should not be making any orders for specific performance because the Property was part of AA’s assets. The Property was listed as belonging to him personally in his affidavit setting out his assets. Any disposal of the Property by me in these proceedings was therefore caught by the section 45(3) IVA Order and would be disposing off an asset of AA’s insolvent estate. Mr Chan said the Property was worth much more than $37 million today but accepted that he had no valuation to back that statement from the bar. Mr Chan’s oral application was opposed by all counsel present on various grounds.
Mr Lee Eng Beng SC, counsel for the Plaintiff, (who had just taken over the matter from their previous lawyers), took objection not only to the lateness of the application and lack of notice but also to the legal basis of Mr Chan’s application that the Property should fall into AA’s insolvent estate. Mr Lee SC said the application must falter on the well-known principle that if a party entered into a contract to purchase property, the beneficial ownership shifts to the buyer and if there is a supervening bankruptcy, the bankruptcy takes subject to the buyer’s interest. Mr Yeo SC agreed and submitted on a more basic point, and I agreed with him – that there was no proper application supported by an affidavit before me. Mr Yeo SC reminded me that when I first learned of the section 45(3) IVA Order at the PTC on 18 May 2010, I asked Prof Tan SC and his instructing solicitor, Mr P Balachandran, to invite Messrs Shook Lin & Bok LLP to attend the next PTC and update all concerned on those proceedings. They did not. Nor did they write to any of the parties.
I therefore informed Mr Chan that we were proceeding with the taking of the evidence for the rest of that week and oral submissions were going to be made the following week on 15 and 16 July 2010. That would give him the time, if his clients wished, to intervene and take out a proper application supported by an affidavit. In the event, no such application took place. It will also be noticed that AA was giving evidence in these proceedings and had filed four affidavits, (6 January, 9 April, 25 June and 1 July 2010).
The Plaintiff’s Case The Plaintiff contends that its case is very simple and straightforward. The terms of the deal between the Plaintiff and the 1
The 1
All the technical issues raised by the 1
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