Da Hui Shipping (Pte) Ltd (in creditors' voluntary liquidation) v An Rong Shipping Pte Ltd (in liquidation)

• Jurisdiction: Singapore
• Judge: See Kee Oon JAD
• Judgment Date: 19 February 2024
• Neutral Citation: [2024] SGHC(A) 6
• Court: High Court Appellate Division (Singapore)
• Docket Number: Originating Application No 58 of 2023
• Hearing Date: 01 December 2023,20 December 2023
• Citation: [2024] SGHC(A) 6
• Year: 2024
• Plaintiff Counsel: Daniel Tan Shi Min (Daniel Chen Shimin), Hoang Linh Trang, Ee Yong Chun Bernard and Suresh Viswanath (Shook Lin & Bok LLP)
• Defendant Counsel: The respondent unrepresented.
• Subject Matter: Civil Procedure,Appeals,Leave,Insolvency Law,Winding up,Company wound up,Whether permission is required to proceed with an appeal against the company where lower court previously granted permission to commence action or proceeding against the company,Section 133(1) Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed)
• Published date: 21 February 2024

Audrey Lim J (delivering the judgment of the court):

AD/OA 58/2023 (“OA 58”) is the application of Da Hui Shipping (Pte) Ltd (“Da Hui”) for permission to appeal against the decision of the Judge in the General Division of the High Court (the “Judge”) dismissing HC/OA 418/2023 (“OA 418”). OA 418 was an application brought by Da Hui against An Rong Shipping Pte Ltd (“An Rong”).

The application for permission to appeal (“PTA Application”) raises the question of whether, under s 133(1) of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) (“IRDA”), permission is required to appeal against a decision arising from an action or proceeding, where permission to proceed with or commence that action or proceeding had previously been granted by a court under s 133(1). Having considered the matter, we answer this in the negative and thus dismiss the PTA Application. We take this opportunity to set out our reasons as this question does not appear to have been previously considered in the context of s 133(1) of the IRDA.

Background

OA 418 arose because Da Hui had entered into a loan agreement (“Loan Agreement”) with An Rong as joint and several borrowers. The lender under the agreement was Bank of America N.A., Singapore Branch (“BOA”). The loan was split into three tranches, with each tranche to be applied for the refinancing of a different vessel; one vessel was owned by Da Hui while two vessels were owned by An Rong. The loan was also secured by mortgages over the three vessels. Da Hui’s vessel was thereafter sold, and the proceeds were applied to fully repay one tranche of the loan (pertaining to Da Hui’s vessel), with the remaining proceeds being applied towards the other two tranches of the loan (pertaining to An Rong’s vessels). An Rong’s vessels were subsequently subject to admiralty in rem proceedings (“ADM Proceedings”) and a judicial sale of the vessels was ordered. Third-party creditors also intervened in the ADM Proceedings. The court in the ADM Proceedings ordered various sums to be paid out, including to BOA.

Da Hui then commenced OA 418. In OA 418, Da Hui applied first for leave to commence and continue OA 418 against An Rong pursuant to s 133(1) of the IRDA, as An Rong was then in liquidation. In OA 418, Da Hui also applied for: (a) a declaration that An Rong was indebted to it for a certain sum (the “Debt”) being Da Hui’s claim in contribution against An Rong arising from the Loan Agreement; and; (b) a declaration that Da Hui be entitled to be subrogated to any extinguished securities held by BOA pursuant to the Loan Agreement, including its mortgage over An Rong’s vessels, to satisfy the Debt (collectively, “the Declarations”).

The Judge granted permission for Da Hui to “commence and continue the action herein [ie, OA 418] against [An Rong]” but dismissed its prayers for the Declarations. Suffice to say, the Judge’s reasons for so doing are immaterial for present purposes. Da Hui then brought the PTA Application (for permission to appeal against the Judge’s decision in OA 418 dismissing its prayers for the Declarations) “as a matter of caution and for good order” as it was of the view that permission to appeal might be required pursuant to s 133(1) of the IRDA read with O 19 r 26 of the Rules of Court 2021 (“ROC 2021”). For completeness, Da Hui also relied on O 18 r 29 of the ROC 2021 in its submissions for permission to appeal. An Rong did not file any submissions or seek to oppose the PTA Application.

Whether permission to appeal is required

We hold that permission to appeal is not required and dismiss the application on this basis. We set out our reasons...