Re Beloff Michael Jacob QC

JurisdictionSingapore
JudgeJudith Prakash J
Judgment Date17 September 2013
Neutral Citation[2013] SGHC 177
CourtHigh Court (Singapore)
Docket NumberOriginating Summons No 1096 of 2012
Year2013
Published date26 June 2014
Hearing Date17 May 2013,03 May 2013
Plaintiff CounselEdwin Tong, Kenneth Lim, Peh Aik Hin and Tan Kai Liang (Allen & Gledhill LLP)
Defendant CounselLee Eng Beng SC, Low Poh Ling, Raelene Su-Lin Pereira and Jonathan Lee (Rajah & Tann LLP),Chan Hock Keng and Foo Xian Yao (WongPartnership LLP),Jeffrey Chan SC, Dominic Zou and Clement Chen,and Christopher Anand Daniel and Harjean Kaur (Advocatus Law LLP)
Subject MatterLegal profession,admission,ad hoc
Citation[2013] SGHC 177
Judith Prakash J: Introduction

On 3 May 2013, I heard the application of Mr Michael Jacob Beloff QC (“the Applicant”) to be admitted on an ad hoc basis pursuant to s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed, as amended in 2012) (“the Act”) to practise as an advocate and solicitor in Singapore for the purpose of representing nTan Corporate Advisory Pte Ltd (“NCA”) in certain proceedings I will elaborate on below. This application met with strong opposition. On 17 May 2013, I allowed the application. The decision has been appealed against and I now give my grounds.

The principal order that I made reads as follows: The Applicant be admitted on an ad hoc basis pursuant to section 15 of the Legal Profession Act (Cap. 161, 2009 Revised Edition) to practice as an advocate and solicitor in Singapore for the purposes of representing nTan Corporate Advisory Pte Ltd (RC No. 200102926R), the Other Party, in: Summons No. 5682 of 2012/A; Summons No. 6520 of 2012/K; Summons No. 6475 of 2012/C; and Summons No. 108 of 2013,

in Civil Appeal No. 44 of 2010/E and Civil Appeal No. 47 of 2010/S, and other ancillary proceedings which are directly related to or arise from the aforesaid summonses.

Background

The background to the application was somewhat complicated. In October 2008, NCA was appointed as the independent financial adviser of a Singapore incorporated company, TT International Ltd (“the Company”), which was experiencing serious financial difficulties. The fees payable by the Company to NCA for its services, as set out in two engagement letters dated 28 October 2008 and 15 May 2009, included a value added fee (“VAF”).

On 29 January 2009, the Company applied for and received approval from the court pursuant to s 210(1) of the Companies Act (Cap 50, 2006 Rev Ed) (“the COA”) to summon a meeting of its creditors to consider a proposed scheme of arrangement (“the Scheme”). Meetings of the Company’s creditors were held subsequently and, on 17 December 2009, the proposed Scheme Manager reported that the Scheme had been passed by a majority of creditors representing 75.06% in value of the Company’s debts. It should be noted that under the Scheme, the proposed Scheme Manager was Mr Nicky Tan and/or Mr Dan Yock Hian and/or Ms Lim Siew Soo who were all employees of NCA, Mr Nicky Tan being its chief executive officer.

The Company then applied for court sanction of the Scheme. The application which came on for hearing before me in due course was opposed by a number of the Company’s creditors. After hearing arguments, I approved the Scheme. Two of the opposing creditors then appealed against my decision (vide Civil Appeal No 44 of 2010/E and Civil Appeal No 47 of 2010/S (“CA 44” and “CA 47”)). On 27 August 2010, the Court of Appeal (“the CA”) allowed the appeals. It also ordered that a fresh meeting of creditors be held in accordance with various directions made by the CA. At the fresh meeting, the requisite number of creditors voted in favour of the Scheme and, on 13 October 2010, the CA sanctioned the Scheme, subject to certain alterations made pursuant to the powers awarded to the courts under s 210(4) of the COA. Subsequently a monitoring committee (“the Monitoring Committee”) comprising three of the Company’s creditors was formed to monitor the implementation of the Scheme.

The CA’s directions were set out in its brief grounds of decision dated 13 October 2010 (“Brief Grounds”). On 31 January 2012, the CA released the full grounds of decision viz The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd and another appeal [2012] SGCA 9 (subsequently reported in [2012] 2 SLR 213) (“the Judgment”). The Judgment deals comprehensively and extensively with the law in Singapore in relation to schemes of arrangement under s 210 of the COA.

Before I proceed, I should say something about the VAF as this fee lies at the heart of the dispute. The VAF was based on a formula which provided for it to be calculated in relation to the savings or capital injections obtained for the Company by the Scheme Manager. The VAF was not disclosed to the Company’s creditors prior to either vote that was taken in respect of the Scheme. Apparently, in the events that occurred, when the formula was applied, the VAF worked out to be a very substantial sum in the region of between $15m and $30m. The fees payable to NCA are not covered by the Scheme and are payable by the Company in priority to the amounts owing to the creditors.

A few days prior to the release of the Judgment, M/s Rajah & Tann LLP (“R&T”), acting as solicitors for the Monitoring Committee, wrote a letter to the CA in which it raised the issue of payment of the VAF due to NCA and raised certain queries regarding [8(j)] of the Brief Grounds which had directed that all professional costs and disbursements of the Scheme Manager and the Company’s professional advisers incurred after 27 August 2010 should be taxed by the High Court. R&T sought various further directions from the CA in this respect. This letter led to an exchange of correspondence (which included submissions from the parties) between the parties and the CA during the period from 27 January 2012 until 10 April 2012. The persons involved in this exchange were R&T, M/s WongPartnership LLP (“WongP”) which was acting for the Company and the Scheme Manager’s solicitors, M/s Allen & Gledhill LLP (“A&G”).

On 27 September 2012, the CA handed down a further written judgment in CA 44 and CA 47 (which was subsequently reported under the same case name in [2012] 4 SLR 1182) dealing with the issues that had been raised in the correspondence/submissions referred to in [8] above (“the Second Judgment”). In brief, the CA held: The existence of the VAF and its estimated quantum were material information which ought to have been disclosed by the Company and the Scheme Manager to the creditors and the CA prior to sanction of the Scheme. The Scheme Manager was in a position of conflict as the quantum of the VAF payable to NCA was dependent on the value of the debts which would be adjudicated by the Scheme Manager himself. The Scheme would ordinarily have been set aside and put to a fresh vote as a result of the non-disclosure of the VAF to the creditors. However, as the Scheme had been implemented for more than two years, it was not practical to set it aside since doing so would cause more harm to the Company and the creditors. The CA directed the Scheme Manager/NCA, the Company and the Monitoring Committee to try and reach an agreement as to the proper amount of professional fees to be awarded for NCA’s efforts in reviving the Company to date. In the event that the parties were unable to reach an agreement, NCA’s global fees (both before and after the Scheme Manager’s appointment) would be assessed by a High Court Judge in accordance with the principles stated in Re Econ Corp Ltd (in provisional liquidation) [2004] 2 SLR(R) 264.

It is NCA’s contention that in the Second Judgment, the CA: made several crucial findings of fact (“Findings of Fact”) that directly affected NCA; and on the basis of the Findings of Fact, the CA gave directions relating to NCA’s fees (“the Fee Orders”) as set out in [9(d)] above.

NCA took the view that the Second Judgment is not valid because: the Findings of Fact and Fee Orders were made, inter alia, without the necessary jurisdiction; and they were made in breach of the rules of natural justice, in particular, the fair hearing rule, which gives all litigants the right to be heard before a decision is taken.

On 5 November 2012, NCA filed Summons No 5682 of 2012 in CA 44 (“Summons 5682”) and Summons No 6520 of 2012 in CA 47 (together “the Summonses”). The relief sought in the Summonses is the same. NCA wants: leave to intervene in the respective appeal cases; and substantively, for the CA to set aside the Second Judgment in each appeal.

The Summonses were, according to NCA, filed only after it had obtained the advice of the Applicant. Having accepted the Applicant’s advice, NCA was, not surprisingly, desirous of being represented by the Applicant when the Summonses came on for hearing. Hence, on 22 November 2012 the present application was filed. Subsequently, the three banks that formed the Monitoring Committee viz, DBS Bank Ltd, Habib Bank Ltd and Oversea-Chinese Banking Corporation Limited (“the Interveners”) applied for permission to intervene in the application so that they could oppose it. I granted that application. When the Summonses came on for hearing, they were opposed by the Company, by the Law Society, by the Attorney-General and by the Interveners. I shall hereafter sometimes refer to these four parties collectively as “the Opposing Parties”.

My decision The legal regime

The law relating to ad hoc admission of foreign counsel to the Singapore Bar for the purpose of representing litigants in domestic litigation in the Singapore courts has undergone several changes over the years. From a fairly relaxed approach which saw most such applications succeeding, the law moved to an extremely restricted approach which made such admissions extremely rare. In 2012, the position changed again and I had to consider the Applicant’s application in relation to fairly recent statutory provisions. Fortunately, I had the guidance of two reported decisions viz, Re Andrews Geraldine Mary QC [2013] 1 SLR 872 (“Re Andrews”) and Re Caplan Jonathan Michael QC [2013] 3 SLR 66.

The present law regarding ad hoc admissions is set out at s 15 of the Act, with the material sections being ss 15(1), (2) and (6A): —(1) Notwithstanding anything to the contrary in this Act, the court may, for the purpose of any one case, admit to practise as an advocate and solicitor any person who — holds – Her Majesty’s Patent as Queen’s Counsel; or any appointment...

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1 cases
  • Re Beloff Michael Jacob QC
    • Singapore
    • High Court (Singapore)
    • 17 September 2013
    ...Beloff Michael Jacob QC [2013] SGHC 177 Judith Prakash J Originating Summons No 1096 of 2012 High Court Legal Profession—Admission—Ad hoc—Whether Queen's Counsel should be admitted in case concerning limits of Court of Appeal's jurisdiction and powers The applicant, Mr Michael Jacob Beloff ......

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