Chan Siew Lee Jannie v Australia and New Zealand Banking Group Ltd

CourtHigh Court (Singapore)
JudgeKan Ting Chiu SJ
Judgment Date15 June 2015
Neutral Citation[2015] SGHC 157
Citation[2015] SGHC 157
Docket NumberOriginating Summons (Bankruptcy) No 2 of 2015
Hearing Date13 February 2015
Published date08 April 2016
Plaintiff CounselEugene Thuraisingam and Jerrie Tan (Eugene Thuraisingam LLP)
Defendant CounselChou Sean Yu, Aw Wen Ni and Liang Hanting (WongPartnership LLP)
Subject MatterInsolvency Law,Bankruptcy,Statutory Demand,Civil Procedure,Extension of Time
Kan Ting Chiu SJ: Background

The Plaintiff, Jannie Chan Siew Lee (“the Plaintiff”), is a debtor to the Defendant, Australia and New Zealand Banking Corporation Group Limited (“the Defendant”). The Defendant is a bank incorporated in Australia. The Defendant had, in the course of its business, made a loan (“the loan’) to Timor Global LDA (“TGL”), a company incorporated in Timor-Leste. Pursuant to the terms of the loan, TGL pledged its assets to the Defendant. The Plaintiff is a shareholder and director of TGL and she executed a personal guarantee with the other directors of TGL in favour of the Defendant.

TGL defaulted on the loan and the Defendant commenced legal action against the guarantors and obtained judgment against the Plaintiff. When the Plaintiff did not satisfy the judgment, the Defendant served a Statutory Demand (“SD”) issued under r 94 of the Bankruptcy Rules (Cap 20, R 1, 2006 Rev Ed) (“BR”) on the Plaintiff on 15 October 2014. On 8 January 2015, the Plaintiff instituted these proceedings against the Defendant to obtain an extension in time for her to apply to set aside the SD under r 97 of the BR and to set aside the SD under r 98 of the BR. I dismissed both applications.

The grounds for the application

The Plaintiff’s case was that the SD should be set aside as it was defective because the security offered by TGL was not listed in the SD. Her explanation for not filing the application to set aside the SD on time was that she had been negotiating with the Defendant through her solicitors for the Defendant to forebear from presenting a bankruptcy petition against her. However, the negotiations broke down on 7 January 2015, and she filed the application on the following day. As the main focus of the submissions from the parties was whether the SD should be set aside, I dealt with this issue first.

Setting aside the SD

The application is grounded on rr 94(5) and 98(2) of the BR. They read as follows: If the creditor holds any property of the debtor or any security for the debt, there shall be specified in the demand —

(a) the full amount of the debt; and

(b) the nature and value of the security or the assets.

The court shall set aside the statutory demand if —

it appears that the creditor holds assets of the debtor or security in respect of the debt claimed by the demand, and either rule 94(5) has not been complied with, or the court is satisfied that the value of the assets or security is equivalent to or exceeds the full amount of the debt …

[emphasis added]

Mr Thuraisingam, counsel for the Plaintiff, contended that the word “security” in the phrases in italics refers to all security held by the creditor in relation to the debt (“the all-security construction”). The Defendant took the position that the word “security” refers only to security provided by the debtor to whom the SD was issued (“the debtor’s-security construction”). This issue arose because the assets pledged by TGL were not specified in the SD.

The proper meaning of “security” in rr 94(5) and 98(2) had been dealt with and settled in two cases, namely, Re Loh Lee Keow and another, ex parte Keppel TatLee Bank Ltd [2000] 3 SLR(R) 283 (“Re Low Lee Keow”) and Sia Leng Yuen v HKR Properties Ltd [2001] 3 SLR(R) 587 (“Sia Leng Yuen”). In Re Loh Lee Keow, Woo Bih Li JC (as he then was) undertook a careful analysis of rr 94(5), 98(2)(c), 101(2), and Form 2 of the BR, and ss 63(1) and (2) of the Bankruptcy Act (Cap 20, 2000 Rev Ed) (“BA”). His conclusion was that the word “security” in rr 94(5) and 98(2) means security on the property of the debtor in the...

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2 cases
  • Chan Siew Lee Jannie v Australia and New Zealand Banking Group Ltd
    • Singapore
    • Court of Three Judges (Singapore)
    • 6 April 2016
    ...(“the Judge”) dismissed the application and his decision is reported at Jannie Chan Siew Lee v Australia and New Zealand Banking Group [2015] SGHC 157 (“the GD”). The precise question for determination, therefore, was whether the expression “security” in the aforementioned provisions only r......
  • Chan Siew Lee Jannie v Australia and New Zealand Banking Group Ltd
    • Singapore
    • Court of Three Judges (Singapore)
    • 6 April 2016
    ...(“the Judge”) dismissed the application and his decision is reported at Jannie Chan Siew Lee v Australia and New Zealand Banking Group [2015] SGHC 157 (“the GD”). The precise question for determination, therefore, was whether the expression “security” in the aforementioned provisions only r......

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