Lin Yueh Hung v Andreas Vogel & Partner, Rechtsanwaelte, AV & P Legal LLP

• Jurisdiction: Singapore
• Judge: Goh Yihan JC
• Judgment Date: 02 August 2023
• Docket Number: Originating Application No 220 of 2023 (Summonses Nos 1510 and 1511 of 2023)
• Court: High Court (Singapore)

Lin Yueh Hung (as liquidators of CST South East Asia Pte Ltd (in members' voluntary liquidation)) and another

and

Andreas Vogel & Partner, Rechtsanwaelte, AV & P Legal LLP and others

[2023] SGHC 208

Goh Yihan JC

Originating Application No 220 of 2023 (Summonses Nos 1510 and 1511 of 2023)

General Division of the High Court

Civil Procedure — Parties — Self-representation of company — Officer authorising himself to represent his company — Whether court should give permission for officer of company to represent company — Interpretation of O 1 r 9 Rules of Court (2014 Rev Ed) and O 4 r 3(3) Rules of Court 2021 — Order 1 r 9 Rules of Court (2014 Rev Ed) — Order 4 r 3(3) Rules of Court 2021

Insolvency Law — Winding up — Void dissolution of company — Liquidators rejecting creditors' claims — Whether liquidators' decisions to reject creditors' claims were valid and correct

Held, allowing the application:

(1) From a plain reading, O 4 r 3(3) of the Rules of Court 2021 (the “ROC 2021”) was meant to be different from O 1 r 9(2) and O 1 r 9(4) of the Rules of Court (2014 Rev Ed) (the “ROC 2014”). Although O 1 r 9(4) of the ROC 2014 set out requirements on the form and contents of the supporting affidavit, O 4 r 3(3) of the ROC 2021 was silent on this issue: at [16].

(2) Order 4 r 3(3) of the ROC 2021 was identical to O 1 r 9(2) of the ROC 2014, except that the requirements for permitting an officer of an entity to act on behalf of the entity in any relevant matter of proceeding had been modified: at [16].

(3) An application under O 4 r 4(3) of the ROC 2021 had to satisfy two conjunctive requirements. First, the procedural requirement in O 4 r 3(3)(a) was that the officer had to be duly authorised by the entity concerned to act on its behalf in the matter or proceeding at hand. Second, the substantive requirement in O 4 r 3(3)(b) was that the officer had to either: (a) have sufficient executive or administrative capacity; or (b) be a proper person to represent the entity concerned in the matter or proceeding at hand: at [19].

(4) For the procedural requirement in O 4 r 3(3)(a) of the ROC 2021, the focus was on the substance of the application, which left the court a wider discretion to decide how and if the procedural requirement had been satisfied: at [20].

(5) Although there was no longer a requirement that the affidavit be “made by any other officer” of the entity, if the affidavit was so made, it would suggest that the officer to be appointed was indeed duly authorised. However, even if the affidavit was made by the officer to be appointed, this would not necessarily point towards the officer to be appointed not being duly authorised: at [21] and [22].

(6) For the substantive requirement in O 4 r 3(3)(b) of the ROC 2021, the focus was on the characterisation and abilities of the officer to be appointed: at [23].

(7) The factors that had been considered for an application under O 1 r 9(2) of the ROC 2014 were: (a) whether the application for leave had been properly made pursuant to the ROC 2014; (b) the financial position of the corporation application and/or its shareholders; (c) the bona fides of the application; (d) the role of the company in the proceedings; (e) the structure of the company; (f) the complexity of the factual and legal issues; (g) the merits of the company; (h) the amount of the claim; (i) the competence and credibility of the proposed representative; and (j) the stage of the proceedings: at [24].

(8) Some of the factors espoused in relation to O 1 r 9(2) of the ROC 2014 were no longer relevant. For instance, the financial impecuniosity of the company was no longer relevant. Nevertheless, the court was not prohibited from considering the factors laid down in relation to O 1 r 9(2) of the ROC 2014: at [25] and [26].

Case(s) referred to

Allergen, Inc v Ferlandz Nutra Pte Ltd [2015] 2 SLR 94 (folld)

Bulk Trading SA v Pevensey Pte Ltd [2015] 1 SLR 538 (folld)

Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd [2015] 2 SLR 289 (folld)

HG Metal Manufacturing Ltd v Gayathri Steels Pte Ltd [2016] 5 SLR 238 (folld)

Facts

The applicant liquidators of CST South East Asia Pte Ltd (hereafter, the “Liquidators” and the “Company”) applied under HC/OA 220/2023 (“OA 220”) for the court to review their decisions to reject all of the claims by the defendant creditors of Company (the “Creditors”). The Liquidators had rejected the Creditors' claims because, among other reasons: (a) the Creditors lacked capacity in making the claims; (b) there was no basis for the claims; (c) some of the claims were time-barred; and/or (d) there was insufficient evidence.

The Liquidators informed the Creditors of their decisions by letter several times. Although the Liquidators believed they were entitled to proceed with the dissolution of the Company, OA 220 was commenced in anticipation of potential claims by the Creditors for a declaration that the dissolution was void under s 208 of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed).

Against this context, the Creditors applied under HC/SUM 1510/2023 and HC/SUM 1511/2023 for them to be self-represented by an officer of the company, for two main reasons. First, the Creditors anticipated that they would incur extensive costs in OA 220. Any projected legal costs would be disproportionate to any possible payment in the claims. This was not a favourable situation as the Creditors had been suffering losses. Second, the officer had been educated in the field of law and therefore, he could assist in OA 220.

Legislation referred to

Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) ss 144(3), 181(1)(a), 190, 208

Rules of Court (2014 Rev Ed) O 1 r 9(2), O 1 r 9(3), O 1 r 9(4), O 1 r 9(4)(c)

Rules of Court 2021 O 4 r 3(3), O 4 r 3(3)(a), O 4 r 3(3)(b)

Lim Yee Ming (Kelvin Chia Partnership) for the applicants;

Third defendant in person.

2 August 2023

Judgment reserved.

Goh Yihan JC:

1 There are two applications before me which concern HC/OA 220/2023 (“OA 220”). In HC/SUM 1510/2023 (“SUM 1510”), the defendant, Andreas Vogel & Partner, Rechtsanwaelte, AV & P Legal LLP (“AVPLLP”), is applying for permission to be self-represented by one of its partners, Mr Andreas Dieter Vogel (“AV”), in OA 220. Similarly, in HC/SUM 1511/2023 (“SUM 1511”), the defendant, Andreas Vogel Pte Ltd (“AVPL”), is applying for permission to be self-represented by its company secretary, who also happens to be AV, in OA 220. In support of SUM 1510, AV filed an affidavit in his capacity as one of the two partners of AVPLLP. In support of SUM 1511, one Mr Loh Kong Hon (“LKH”) filed a supporting affidavit in his capacity as the director of AVPL.

2 I first heard AV in relation to the applications on 6 July 2023. I directed him to file a supplementary affidavit to address some gaps in the applications. He filed a supplementary affidavit on 10 July 2023. Having considered the applications with the supplementary affidavit, I allow both...