Jeyaretnam Joshua Benjamin v Indra Krishnan

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 01 June 2007
• Neutral Citation: [2007] SGCA 30
• Docket Number: Civil Appeal No 142 of 2006
• Date: 01 June 2007
• Year: 2007
• Published date: 11 June 2007
• Plaintiff Counsel: The appellant in person
• Citation: [2007] SGCA 30
• Defendant Counsel: Sarjit Singh and Chan Wang Ho (Insolvency & Public Trustee's Office),Hri Kumar (Drew & Napier LLC),Ashok Kumar and Foo Hsiang Ming (Allen & Gledhill)
• Court: Court of Appeal (Singapore)
• Subject Matter: Bankruptcy rules,Sections 77, 105 and 106 Bankruptcy Act (Cap 20, 2000 Rev Ed),Whether sums garnished null and void,Whether bankrupt ought to be discharged conditionally,Creditors and Official Assignee opposing bankrupt's application for discharge from bankruptcy,Bankruptcy,Bankruptcy effects,Section 124 Bankruptcy Act (Cap 20, 2000 Rev Ed),Bankrupt and creditors unable to agree on amount of composition,Garnishment by creditors prior to bankruptcy order being made but after bankruptcy petition filed,Insolvency Law,Whether bankrupt's application for discharge misconceived

1 June 2007

Chan Sek Keong CJ (delivering the grounds of decision of the court):

Introduction

1 The appellant, Joshua Benjamin Jeyaretnam, filed Summons No 600358 of 2006 (“SUM 600358/2006”) on 28 August 2006 seeking a discharge of his bankruptcy under s 124(1) of the Bankruptcy Act (Cap 20, 2000 Rev Ed) (“BA”). The application failed before the assistant registrar (“the AR”) and on appeal to the judge in chambers (“the Judge below”). Consequently, the appellant filed this appeal. On 23 April 2007, we delivered our oral judgment in which we allowed the appellant’s appeal in part by granting the appellant a conditional discharge upon payment to the Official Assignee (“the OA”) the sum of $233,255.78 within three weeks of 23 April 2007. Because the appellant was successful in part, we made no order as to the costs of this appeal.

2 We now set out the grounds of our decision in detail.

The background facts

3 The background leading to this appeal was not in dispute. The application filed by the appellant in SUM 600358/2006 represented the latest in a string of unsuccessful attempts by the appellant since he was adjudged a bankrupt on 19 January 2001 either to discharge himself from bankruptcy or to have the bankruptcy annulled. The following table sets out the list of creditors that filed proofs of debt against the appellant pursuant to the bankruptcy order.

Creditors	Judgment Debt	Amount paid/garnished; before the; bankruptcy order	Proved Debt
S Jayakumar and four other (“the First Creditor”)	$121,857.35	$66,666.66	$55,190.68
Goh Chok Tong (“the 11th Creditor”)	$36,274.76	–	$36,274.76
Niruman Pillay, V Krishnasamy, Indra Krishnan,; Pakir Maideen and four others (collectively, “the; Second to Tenth Creditors”)	$546,550.09	$57,066.00	$489,484.09
Comptroller of Income Tax	$225.21	–	$225.21
DBS	$5,237.63	–	$5,237.63
UDMC	$2,860.93	–	$2,860.93
Zosing International	$3,000.00	–	$3,000.00
William Bennett	$11,325.00	–	$11,325.00

4 In January 2004, the appellant informed the OA that he wished to be discharged and for this purpose, he offered his creditors 20% of the proved debts. The OA told him that he would not support the appellant’s application because the appellant’s assets had not been fully realised. The appellant went ahead with the application to court and failed, but not before raising his offer of composition to 25% of the proved debts on appeal to the High Court: see Re Jeyaretnam Joshua Benjamin, ex parte Indra Krishnan [2004] 3 SLR 133. The Court of Appeal eventually dismissed the appellant’s appeal: see Jeyaretnam Joshua Benjamin v Indra Krishnan [2005] 1 SLR 395.

5 A second application to the court seeking discharge in May 2005 was also dismissed by the assistant registrar and affirmed by Andrew Ang J.

6 Then, in January 2006, the appellant applied for an annulment of the bankruptcy. However, this application was pre-empted by the appellant’s creditors who filed an application for a stay until the appellant had paid all outstanding costs due to them. The assistant registrar ordered the appellant to pay the outstanding costs and the costs of the application to stay the annulment proceedings by 24 March 2006, failing which the annulment application would be dismissed. The appellant failed to make the payment on time. He was then given more time to pay the costs by Judith Prakash J, who ordered that payment be made by 3 July 2006. Again, no payment was made by the end of the extended deadline, and the application for annulment was accordingly dismissed.

7 The application in SUM 600358/2006 was therefore the appellant’s third application for a discharge of his bankruptcy. For the purposes of this application, the appellant wrote to counsel for the Second to Tenth Creditors, Drew & Napier LLC, on 4 July 2006 offering “forty-five [per cent] (45%) of the debts for which your clients have filed proofs of debt”. On 12 July 2006, Drew & Napier LLC replied asking whether the same terms had been extended to all the other creditors who had filed proofs of debt. Two days later, the appellant wrote back to say that he had not made the same offer to the other creditors and requested an answer as to whether the Second to Tenth Creditors would accept the offer regardless of what the other debtors might do. On 31 July 2006, Drew & Napier LLC replied in the following terms:

We are instructed that our clients agree to accept your offer of payment of 45% of the sum owed to our clients in settlement of your debt to our clients, subject to the following conditions:

(a) you shall pay the sum of $222,517.84, being 45% of the principal sum reflected in our clients’ proofs of debt;

(b) you shall make full payment of the sum referred to at paragraph (a) above to us by way of cashier order made in favour of M/s Drew & Napier LLC by [5pm on 31 August 2006], failing which this agreement shall be deemed terminated immediately without notice;

(c) in the event the agreement is terminated, our clients shall be entitled to treat all sums received (if any) as part payment of amount owed to them, and shall be entitled to claim the balance of the debt as reflected in their proofs of debt: …

[emphasis in bold in original]

8 On 3 August 2006, the appellant responded as follows:

I am glad your clients have finally agreed on what they would be prepared to accept.

I shall be making an application to the court for my discharge before the month is out and the application will be served on you.

Needless to say, I shall be offering 45% to all creditors.

The decisions of the courts below

9 Before the AR, the appellant argued that based on the agreement reached between the parties, he needed only to pay $124,937.62. The AR rejected the appellant’s contention and dismissed the application with the following explanation:

Under the Bankruptcy Act, the grant of a discharge is within the discretion of the court, and there are a number of relevant factors for the court to consider, including the bankrupt’s age, the fact that he has been adjudicated a bankrupt since 19 January 2001 and his offer to pay 45% of all his debts. However, as I have earlier found, the B’s computation of 45% is inaccurate and his offer in fact represents a substantially lower percentage than 45%.

The creditors have indicated that they are willing to accept 45% of the amounts owing to them, and have even in some cases discounted the interest element of the judgment debt. Notwithstanding their offers, Mr Jeyaretnam has insisted that he will only pay $124,937.62 and no more. He does not go so far as to say that he cannot pay the sums the creditors have requested for, which amount to 45% of the remaining debts due and owing to them. Simply that he refuses to pay them.

In these circumstances, the JB property becomes very relevant as it could potentially contribute $380,000 to the bankrupt’s estate. The OA has commenced proceedings to have the Malaysian estate vested in the OA, but Mr Jeyaretnam has filed an affidavit to oppose that application. [Mr Jeyaretnam] has also persisted in his refusal to arrange for his share of monies from his late sister’s estate to be handed over to the OA, despite the fact that his Malaysian solicitors have collected the sum since 2001. I reiterate the Court of Appeal’s words to [Mr Jeyaretnam] here: [Mr Jeyaretnam] must help himself in order that others, including the court, can help him.

[Mr Jeyaretnam’s] age and the length of time in bankruptcy are certainly very relevant considerations for this court, they have to be balanced against the conduct of the [bankrupt] here. The creditors have made a reasonable offer, but he has refused to accept it. Contrary to Mr Jeyaretnam’s arguments, there is no material change of circumstances since the last time [he] applied for a discharge last year. [Mr Jeyaretnam’s] offer of $124,937.62 amounts to far less than the 45% he has claimed.

10 The appellant lodged an appeal against the AR’s decision, but he refused to attend the hearing of his appeal before the Judge below. He sent a messenger, one Mr Ng Teck Siong, who was not an advocate and solicitor, to inform the court that he would not be attending the appeal and to hand over his written submissions. The Judge below could have dismissed his appeal without considering the written submissions since he had failed to appear to argue his case, but the Judge below chose not to do so. After deliberation, the Judge below dismissed the appeal on, inter alia, the following grounds:

(a) The appellant’s computation of what constituted 45% of the debt owed was not only different from his creditors’ calculation, but also the OA’s. There being no agreement between the parties, other grounds for discharge had to be considered.

(b) While the appellant was 80 years old, this was only one factor to be taken into account in determining whether he should be discharged from bankruptcy.

(c) The appellant’s age had to be balanced against the interests of the creditors, the amount owed, the period of bankruptcy, the appellant’s own conduct with respect to his bankruptcy and the fact that the considerations that persuaded the Court of Appeal in late 2004 (see [4] above) that he should not be discharged from his bankruptcy at the material time continued to apply with equal force to his present application to be discharged from bankruptcy.

(d) The administration of the appellant’s assets had still not been completed. While this did not automatically mean that a bankrupt could not be discharged, it could not be ignored that the appellant had claimed to be the owner of a property in Johor Baru valued at some RM750,000 (“the JB property”), a significant amount that can be utilised for the payment of his debts. It was not true that the OA had been dilatory in acting on the said property; rather, it was the appellant’s lawyers who had opposed the OA’s application to have...