Lim Lye Hiang v Official Assignee

• Judge: Chao Hick Tin JA
• Judgment Date: 02 November 2011
• Neutral Citation: [2011] SGCA 56
• Citation: [2011] SGCA 56
• Court: Court of Appeal (Singapore)
• Published date: 10 November 2011
• Docket Number: Civil Appeal No 195 of 2010
• Plaintiff Counsel: Foo Soon Yien (Bernard & Rada Law Corporation)
• Defendant Counsel: Lim Yew Jin and Li Mingjie Jordon (Insolvency & Public Trustee's Office)
• Subject Matter: Insolvency Law,Bankruptcy
• Hearing Date: 13 April 2011,10 June 2011

V K Rajah JA (delivering the judgment of the court): Introduction

This is an appeal by Lim Lye Hiang (“the appellant”) against the decision of a High Court Judge (“the Judge”) in Re Lim Lye Hiang, ex parte the Official Assignee [2011] 1 SLR 707 (“the Judgment”).

The facts

Upon a petition of Keppel Bank of Singapore Limited, a bankruptcy order was made against the appellant on 9 January 1998.

Separately, the appellant’s sister, Lim Lye Keow (“LLK”), had nominated the appellant pursuant to s 25 of the Central Provident Fund Act (Cap 36, 2001 Rev Ed) (“the CPFA”) to receive LLK’s Central Provident Fund (“CPF”) monies and SingTel discounted shares (collectively, “the Monies”). LLK passed away on 14 March 2008, at which point the appellant was still an undischarged bankrupt.

On 18 September 2008, the CPF Board (“the Board”) sent a letter to the appellant informing her that although she had been nominated by LLK to receive the Monies, the Monies would instead be released to the Official Assignee (“the OA”) because she was an undischarged bankrupt. Although this letter was copied to the OA, it had no record of receiving the letter. As a result, no action was taken by the OA to claim the Monies from the Board.

On 26 June 2009, the Board sent an e-mail to the OA. The Board referred to its earlier letter of 18 September 2008 and requested the OA’s instructions for the transfer of the Monies to it if the appellant was an undischarged bankrupt. Again, the OA had no record of receiving this e-mail and no action was taken on its part to claim the Monies.

On 16 October 2009, the OA filed a report to the court (“the Discharge Report”) in support of its application to discharge the appellant from bankruptcy. By this time, the OA had admitted proofs of debt lodged by 13 creditors totalling $1,179,422.68, and had published a notice that it intended to declare a first and final dividend. The last day for receipt of proofs of debt had expired on 12 May 2008. The Discharge Report stated, inter alia, that: The OA intended to declare a first and final dividend of about 0.989% to the creditors (ie, of about $11,664). The appellant had no further realisable assets. A period of more than 11 years had elapsed since the bankruptcy order. The appellant was 52 years old and was employed as a kitchen helper earning a net monthly salary of about $800. The appellant had been making regular contributions of between $50 to $150 per month to her estate in bankruptcy. The OA had completed the administration of the appellant’s case.

On 13 November 2009, the court granted an order discharging the appellant from bankruptcy (“the Discharge Order”) pursuant to s 124 of the Bankruptcy Act (Cap 20, 2009 Rev Ed) (“the BA”), without any conditions attached.

On 12 January 2010, the appellant attempted to claim the Monies from the Board. The Board did not accede to her claim. Instead, on 14 January 2010, the Board wrote to the OA again by e-mail. It referred to its previous letter on 18 September 2008 and e-mail on 26 June 2009, and requested the OA to give instructions for the transfer of the Monies to it if the appellant remained an undischarged bankrupt.

The OA responded immediately. On the same day (ie, 14 January 2010), the OA instructed the Board to forward the Monies to the OA. The Board then requested confirmation that the Monies were to be forwarded to the OA even though the appellant had already been discharged from bankruptcy. The OA confirmed that the Monies were to be forwarded to it for administration. Later that day, the Board informed the appellant that it had been instructed to release the Monies to the OA.

On 24 February 2010, the Board wrote to the OA informing the OA that the Monies, amounting to $102,614.84, had been transferred to its bank account. The Board expressed its belief that the Monies vested in the OA and that the appellant’s discharge did not alter that position. This letter was copied to the appellant. On 2 March 2010, the Monies were received in the OA’s bank account.

On 12 May 2010, the OA filed Summons No 600059 of 2010 (“the Summons”) seeking, inter alia, an order that the Monies be divisible among the appellant’s creditors and payable to them as dividends on the basis that the Monies were property which had devolved on the appellant on 14 March 2008 (the date of LLK’s death), notwithstanding that the Monies were received by the OA after the appellant’s discharge from bankruptcy.

The statutory provisions

Before we provide a summary of the Judge’s decision and the issues raised in this appeal, it is convenient that we first set out the relevant statutory provisions. The relevant provisions in the CPFA at the time of LLK’s death on 14 March 2008 were as follows:

Authorisation and conditions for withdrawal from Fund 15. —(1) No sum of money standing to the credit of a member of the Fund may be withdrawn from the Fund except with the authority of the Board.

...

(5) After the death of a member of the Fund, a person nominated by that member in accordance with section 25(1) shall be entitled to withdraw, from the balance standing to the credit of that member in the Fund ... such portion of that balance as is set out in the memorandum executed in accordance with section 25 (1).

...

Withdrawals 20. —(1) Upon an application for the withdrawal of the sum of money standing to the credit of a member of the Fund by a person entitled thereto under section 15, the Board may authorise the payment to the applicant of such sum as the member is entitled to withdraw from the Fund ... or, if the applicant is a nominee appointed in accordance with section 25 (1), such portion of the sum as he is nominated to receive.

...

(3) All applications for withdrawal shall be supported by such evidence as may be prescribed and by such further evidence as the Board may reasonably require.

...

Moneys payable on death of member 25. —(1) Any member of the Fund may by a memorandum executed in the manner prescribed by the Board nominate a person or persons to receive in his or their own right such portions of the amount payable on his death out of the Fund under section 20 (1) or of any shares designated under section 26 (1) as the memorandum shall indicate.

[emphasis added in bold italics]

The relevant provisions in the BA at the time of LLK’s death were as follows:

Interpretation 2. —(1) In this Act, unless the context otherwise requires —

...

“debt provable in bankruptcy” or “provable debt” means any debt or liability that is made provable in bankruptcy under this Act;

...

“property” includes money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of or incidental to, property;

...

Review by court of Official Assignee’s act, omission or decision 31. —(1) If a bankrupt or any of his creditors or any other person is dissatisfied by any act, omission or decision of the Official Assignee in relation to the Official Assignee’s administration of the bankrupt’s estate, he may apply to the court to review such act, omission or decision.

(2) On hearing an application under subsection (1), the court may — (a) confirm, reverse or modify any act or decision of the Official Assignee or (b) give such directions to the Official Assignee or make such other order as it may think fit.

...

Commencement and duration of bankruptcy 75. — The bankruptcy of any person who has been adjudged bankrupt by a bankruptcy order (whether made against him or against the firm in which he is a partner) shall — (a) commence on the day when the bankruptcy order is made; and (b) continue until he is discharged under Part VIII.

Effect of bankruptcy order 76. —(1) On the making of a bankruptcy order — (a) the property of the bankrupt shall — (i) vest in the Official Assignee without any further conveyance, assignment or transfer; and (ii) become divisible among his creditors;

...

Description of bankrupt’s property divisible amongst creditors 78. —(1) The property of the bankrupt divisible among his creditors (referred to in this Act as the bankrupt’s estate) shall comprise — (a) all such property as belongs to or is vested in the bankrupt at the commencement of his bankruptcy or is acquired by or devolves on him before his discharge; and (b) the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge.

...

Claims by unsatisfied creditors 118. —(1) A creditor who has not proved his debt before the declaration of any dividend shall not be entitled to disturb, by reason that he has not participated in it, the distribution of that dividend or any other dividend declared before his debt was proved.

(2) When a creditor has proved his debt, he shall be entitled to be paid out of any money for the time available for the payment of any further dividend, any dividend or dividends which he has failed to receive. (3) Any dividend or dividends payable under subsection (2) shall be paid before that money is applied to the payment of any such further dividend.

Final distribution 119. —(1) When the Official Assignee has realised all the bankrupt’s estate or so much of it as can, in the opinion of the Official Assignee, be realised without needlessly protracting the proceedings in bankruptcy, he shall give notice in the prescribed manner of his intention to declare a final dividend.

(2) The notice under subsection (1) shall contain the prescribed particulars and shall require claims against the bankrupt’s estate to be established by a...