Rafat Ali Rizvi v Ing Bank NV Hong Kong Branch
Jurisdiction | Singapore |
Judge | Kan Ting Chiu J |
Judgment Date | 09 May 2011 |
Neutral Citation | [2011] SGHC 114 |
Court | High Court (Singapore) |
Docket Number | OSB No. 28 of 2009/D (Registrar’s Appeal No.393 of 2009/W) |
Published date | 12 May 2011 |
Year | 2011 |
Hearing Date | 01 February 2010,29 June 2010 |
Plaintiff Counsel | Philip Ling (Wong Tan & Molly Lim LLC) |
Defendant Counsel | Rebecca Chew, Paul Ng and Goh Su Sian (Rajah & Tann LLP) |
Citation | [2011] SGHC 114 |
The plaintiff, Rafat Ali Rizvi, was served with a statutory demand issued by the defendant, Ing Bank NV Hong Kong Branch. The plaintiff disputed the validity of the statutory demand and sought to set it aside. However, as he was out of time, he had to apply for an order to extend time as well as order to set aside the statutory demand. When the applications came before an Assistant Registrar (“AR”), both were dismissed and the plaintiff is appealing against those orders.
The plaintiff, a British citizen and a Singapore Employment Pass holder, is the sole shareholder and ultimate beneficial owner of Arlington Assets Investments Ltd (“AAIL”), a company incorporated in the British Virgin Islands (“BVI”). The defendant is the Hong Kong branch of Ing Bank, NV AAIL is a customer of the defendant. The defendant had granted credit facilities to AAIL up to a maximum limit of US$180 million. The plaintiff had executed a continuing personal guarantee in favour of the defendant to secure the facilities.
The statutory demandThe defendant issued a statutory demand dated 25 May 2009 on the plaintiff under s 62 of the Bankruptcy Act (Cap 20. 2009 Rev Ed) (“BA”) for the sums of US$117,143,874, €2,528,234.96, S$16,117,571.11 and ¥1,976,752,632 owing under the facilities granted by the defendant to AAIL (All references to sections refer to the BA.)
The application for extension of time Under r 97(1)(
The court may, upon the application of the debtor, allow the debtor an extension of time to make his application to set aside the statutory demand.
In support of his application to extend time, the plaintiff stated that he was not in Singapore when the statutory demand was served by being posted on the main door of his Singapore residence. He claimed that he was in the United Kingdom between 27 May 2009 and 26 June 2009. He explained that he was unable to return to Singapore as he had to consult his English solicitors on the statutory demand served on him and other statutory demands that were served on AAIL, and he also had to attend to his aged father who was undergoing treatment in the United Kingdom.
The defendant’s response was that the plaintiff did not deserve an extension of time because he did not produce evidence of his being in the United Kingdom, and that in any event, he was, by his account, back in Singapore three days before the dateline for filing the application to set aside the statutory demand.
The application to set aside the statutory demand In the appeal, the plaintiff did not pursue all the arguments he made before the AR and submitted that the statutory demand should be set aside on the grounds that1:
I shall refer to these grounds as grounds (a), (b) and (c) and consider each in turn.
The plaintiff directed his submissions to the requirements of s 61(1)(
61. —(1) No bankruptcy application shall be made to the court in respect of any debt or debts unless at the time the application is made —
...- where the debt or each of the debts is incurred outside Singapore, such debt is payable by the debtor to the applicant creditor by virtue of a judgment or an award which is enforceable by execution in Singapore.
The plaintiff’s argument was that as the debt was incurred outside Singapore, and that no judgment or award obtained on the debt which is enforceable by execution in Singapore, the statutory demand should be set aside.
Section 61(1)(
The Court of Appeal concluded at
[T]he objective of s 61(1)(
d ) was to give some added measure ofprotection , in the light of the far-reaching amendments to the bankruptcy regime brought about by the enactment of BA 1995, to persons with property in Singapore against bankruptcy proceedings based on debts incurred outside Singapore. A preliminary requirement that such debts have anexus with Singapore through "a judgment or award which is enforceable by execution in Singapore" must first and foremost be satisfied. It is also abundantly clear that s 61(1)(d ) has purely local roots and has neither been adopted nor adapted from the UK Insolvency Act.
As s 61(1)(
Section 61(1)(
In
Some significant and material facts are referred to in the Court’s judgment. AmBank is a Malaysian bank. The bank granted loans to two Malaysian companies. Yong, a Singaporean, stood guarantor for the two companies. When the two companies defaulted on repayment, the bank obtained judgment against Yong in Malaysia. The bank registered the judgment in Singapore under the Reciprocal...
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...of time. The weight to be given to each factor is to be determined on the facts (Rafat Ali Rizvi v Ing Bank NV Hong Kong Branch [2011] SGHC 114 at [32]).50 While the application was brought less than two weeks out of time, this does not mean that an extension of time should necessarily be g......
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...when an application is made for an extension of time to set aside an SD are set out in Rafat Ali Rizvi v Ing Bank NV Hong Kong Branch [2011] SGHC 114 at [32]. The factors are as follows: the period of the delay; the reasons for the delay; the grounds for setting aside the statutory demand; ......
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