Cheo Sharon Andriesz v Official Assignee of the estate of Andriesz Paul Matthew, a bankrupt

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 03 July 2012
• Neutral Citation: [2012] SGHC 140
• Date: 03 July 2012
• Docket Number: Originating Summons No 133 of 2012
• Published date: 09 April 2013
• Plaintiff Counsel: Lim Seng Siew and Susan Tay (Ong Tay & Partners)
• Hearing Date: 12 April 2012
• Defendant Counsel: Lee Eng Beng SC, Chua Beng Chye and Raelene Su-Lin Pereira (Rajah & Tann LLP),Ng Yeow Khoon (KhattarWong)
• Court: High Court (Singapore)
• Subject Matter: Bankruptcy,Insolvency Law

Tan Lee Meng J:

The plaintiff, Mdm Sharon Andriesz Cheo (“Mdm Cheo”) commenced divorce proceedings against her husband, Mr Paul Matthew Andriesz (“the bankrupt”) two weeks after she knew that the latter had been served a statutory demand by Bangkok Bank Public Company Limited (“the bank”) to pay around US$8.67m. One month after the bank commenced a bankruptcy application against the bankrupt, Mdm Cheo and the bankrupt consented to an interim consent judgment, which required the bankrupt to transfer his interest in two properties, namely, No 35 Kew Drive, Singapore 466104 and No 33A East Tower, Georgetown, Penang, Malaysia (“the properties”), to her without any consideration for the transfer.

As the bankrupt disposed of his interest in the properties to Mdm Cheo between the date of the bank’s bankruptcy application and the date of the bankruptcy order, the disposition was void by virtue of s 77(1) of the Bankruptcy Act (Cap 20, 2009 Rev Ed) (“the Act”) unless it is ratified by the court. Mdm Cheo’s application for, inter alia, the ratification by the court of the disposition of the properties by the bankrupt was opposed by the Official Assignee of the Estate of Paul Matthew Andriesz (the “Official Assignee”), who contended that the divorce proceedings were sham proceedings intended to put the properties out of the reach of the bankrupt’s creditors. I dismissed Mdm Cheo’s application and now give the reasons for my decision.

Background

On 10 August 2010, the bank issued a statutory demand against the bankrupt for the sum of US$8,671,681.56. This amount was owed to the bank under a continuing joint and several guarantee furnished by the bankrupt to secure banking facilities granted to a company known as Amana Foods Private Limited. The statutory demand was served by way of substituted service by posting on the front gate of the matrimonial property on 14 August 2010.

One month later, the bankrupt applied in OSB 28/2010 to set aside the statutory demand on 14 September 2010.

On 22 October 2010, Mdm Cheo filed an affidavit in support of the bankrupt’s application to set aside the statutory demand. In it, she acknowledged that she was present at the time substituted service of the statutory demand was effected on the bankrupt. In fact, she said that she opened the envelope containing the statutory demand and called the bankrupt to let him know about the document.

Less than two weeks later, on 4 November 2010, Mdm Cheo commenced divorce proceedings against the bankrupt in Divorce Suit No 5600 of 2010/S.

On 22 December 2010, the bankrupt’s application in OSB 28 to set aside the bank’s statutory demand was dismissed by the Assistant Registrar.

A week later, on 29 December 2010, the bank filed a bankruptcy application against the bankrupt in Bankruptcy OS No 2193 of 2010/X. The application was served personally on the bankrupt on 30 December 2010.

The hearing of the bank’s bankruptcy application was scheduled for 20 January 2011. However, the hearing was adjourned as the bankrupt filed a Notice of Appeal on 3 January 2011 against the Assistant Registrar’s dismissal of his application to set aside the bank’s statutory demand.

On 27 January 2011, the bankrupt’s appeal against the decision of the Assistant Registrar in OSB 28/2010 was dismissed.

Four days after the dismissal of the bankrupt’s appeal, on 1 February 2011, Mdm Cheo and the bankrupt agreed to a consent judgment, which included the following terms: 3 (c) Subject to the bank’s approval, [the bankrupt] shall transfer all his right, title and interest in [the matrimonial property] to [Mdm Cheo] within 4 weeks of this Order without consideration and without [her] refunding to [the bankrupt’s] Central Provident Fund account. (d) The [bankrupt] shall also transfer all his right, title and interest in [the Penang property] to [Mdm Cheo] within 4 weeks from the date of this Order without consideration.

[emphasis added]

On 5 May 2011, a bankruptcy order was made against the bankrupt.

On 9 May 2011, the Official Assignee sent a notice to the bankrupt to attend at its office to submit his Statement of Affairs. On 16 May 2011, the bankrupt made no reference to his interest in the properties when he filed and affirmed his Statement of Affairs.

On 2 December 2011, Mdm Cheo filed an application to enforce the terms of the interim consent judgment. This application was adjourned pending the outcome of Mdm Cheo’s application for ratification of the disposition of the bankrupt’s interest in the properties.

The court’s decision

Section 77(1) of the Act, which imposes restrictions on the disposition of property by a bankrupt after a bankruptcy application has been filed against him or her, provides as follows:

Where a person is adjudged bankrupt, any disposition of property made by him during the period beginning with the day of the making of the bankruptcy application and ending with the making of the bankruptcy order shall be void except to the extent that such disposition has been made with the consent of, or been subsequently ratified by, the court.

[emphasis added]

Note must also be taken of s 77(3), which protects transferees of the bankrupt’s property who act in good faith and gave value for the transfer. It provides as follows:

Nothing in this section shall give a remedy against any person in respect of —

(a) any property or payment which he received from the bankrupt before the commencement of the bankruptcy in good faith, for value and without notice that the bankruptcy application had been made; or (b) any interest in property which derives from an interest in respect of which there is, by virtue of this subsection, no remedy.

The transfer of an interest in property by a debtor to his or her spouse pursuant to an order of court is a “disposition of property”. This is evident from Re Flint [1993] 2 WLR 537, where s 284 of the English Insolvency Act, which corresponds to s 77 of the Act, was considered.

As the bank filed its bankruptcy application against the bankrupt on 29 December 2010 and the bankrupt attempted to give away his share of the properties to Mdm Cheo by way of the consent judgment more than a month later on 1 February 2011, the disposition is void unless it is ratified by the court.

Whether the disposition of the properties should be ratified

It is for Mdm Cheo to persuade the Court that the disposition of property by the bankrupt on 1 February 2011 should be ratified.

Mdm Cheo’s counsel, Mr Lim Seng...