Re Joshua Benjamin Jeyaretnam ex parte Indra Krishnan and others
| Jurisdiction | Singapore |
| Judge | Tan Lee Meng J |
| Judgment Date | 26 January 2007 |
| Neutral Citation | [2007] SGHC 14 |
| Court | High Court (Singapore) |
| Published date | 29 January 2007 |
| Year | 2007 |
| Plaintiff Counsel | Joshua Benjamin Jeyaretnam (debtor) unrepresented and absent |
| Defendant Counsel | Ashok Kumar and Foo Hsiang Ming (Allen & Gledhill),Hri Kumar and Vanita Jegathesan (Drew & Napier LLC),Chan Wang Ho and Moey Weng Foo |
| Subject Matter | Insolvency Law,Bankruptcy,Discharge,Whether application for absolute discharge from bankruptcy should be allowed where prior applications dismissed by court and circumstances not having changed materially since,Whether having rejected application for absolute discharge, court should grant conditional discharge |
| Citation | [2007] SGHC 14 |
| 26 January 2007 |
|
Tan Lee Meng J:
1 The appellant, Mr Joshua Benjamin Jeyaretnam, appealed against the decision of Assistant Registrar Low Siew Ling (“AR Low”), who dismissed his third application to have his bankruptcy discharged. I dismissed the appeal and now give the reasons for my decision.
Background
2 The appellant was adjudged a bankrupt on 19 January 2001. Fifteen creditors made claims amounting to around $618,000.00 against him. The bulk of the debts arose from damages awarded against him in three libel suits instituted by his creditors.
3 After his bankruptcy, the appellant made an application for annulment of his bankruptcy and three applications for his discharge from bankruptcy.
4 In January 2004, the appellant intimated to the Official Assignee (“OA”) that he wanted to apply to court for a discharge from bankruptcy. For this purpose, he offered to pay his creditors 20% of the proved debts. The OA made it clear to the appellant that his application could not be supported as his assets had not been fully realised. At that time, the appellant was involved in a number of ongoing suits in Singapore and a suit in Malaysia, in which he claimed to be the beneficial owner of a property in Johor Bahru that was in his late sister’s name. Notwithstanding this, the appellant filed an application to be discharged from bankruptcy.
5 After failing to persuade the Assistant Registrar to agree to discharge him from bankruptcy, the appellant raised his composition offer to his creditors to 25% when the matter came before the High Court. He complained to Choo Han Teck J, who heard the appeal against the Assistant Registrar’s decision, that his creditors were not serious about recovering the debts owed by him to them because their real reason for impeding his discharge from bankruptcy was political in nature.
6 Choo J dismissed the appeal against the Assistant Registrar’s decision (see
(a) the administration of the appellant’s estate had not yet been completed;
(b) in view of the appellant’s claim to his late sister’s property in Johor, it would not be fair to the creditors if the bankruptcy order was discharged; and
(c) in the circumstances and bearing in mind that only three years had elapsed since the making of the bankruptcy order, an order of discharge would be premature.
7 The appellant’s appeal against Choo J’s decision was dismissed by the Court of Appeal: see Jeyaretnam Joshua Benjamin v Indra Krishnan
8 In May 2005, the appellant filed his second application to be discharged from bankruptcy. This application was dismissed by the Assistant Registrar, whose decision was affirmed by Andrew Ang J.
9 In January 2006, the appellant applied for an annulment of the Bankruptcy Order that had been made against him. In response, his creditors filed an application for a stay of the annulment proceedings until the appellant had paid all outstanding costs due to them. The Assistant Registrar ordered the appellant to pay the pre-annulment outstanding costs as well as 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 but he was given more time to pay the costs by Judith Prakash J, who ordered that the costs in question be paid by 3 July 2006, failing which the annulment application would be dismissed with costs. As no payment was made by the end of the extended deadline, the annulment proceedings were dismissed.
10 On 28 August 2006, by way of Summons No 600358 of 2006, the appellant filed his third application for a discharge from bankruptcy, which is the subject matter of the present appeal. In relation to his third application, the appellant offered to pay his creditors the sum of $124,937.62 which, he claims, amounts to 45% of his total debts to the creditors. As the appellant had not paid outstanding costs due to his creditors, they and the OA applied for a stay of proceedings. The appellant opposed the stay but paid the costs after a stay was ordered.
The Assistant Registrar’s decision
11 The appellant’s third application for a discharge from bankruptcy was heard on 20 October 2006. He represented himself at the hearing before AR Low, who dismissed it with costs.
12 AR Low explained her decision to dismiss the appellant’s application in the following terms:
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.
The Appeal
13 The appellant, who was unrepresented, was in the Supreme Court building at the appointed time for the hearing of his appeal but he refused to attend the hearing to argue his own case. Instead, he sent one Mr Ng Teck Siong, who is not an advocate and solicitor of the Supreme Court, to inform the court that he would not be attending the hearing of the appeal and to hand over his written submissions. Mr Ng, who pointed out that this is a “political” case and not merely an application for the appellant’s discharge from bankruptcy, was informed that the debtor should either be represented by counsel or be present at the hearing to argue his own appeal and that the court was only concerned with legal arguments in relation to the application before it. In this context, reference may be made to the decision of the Court of Appeal in 2004 in relation to his first application for a discharge from bankruptcy. Chao Hick Tin JA, who delivered the judgment of the Court, addressed the appellant’s contention that his creditors had a political agenda and reiterated at [12] that in considering whether a bankruptcy order should be discharged, the court should be guided by the letter and spirit of the law and make its decision as if the appellant had been anybody else, and vice versa, as if the creditors had been some other creditors.
14 As for the appellant’s reliance on In re Majory, A Debtor [1955] Ch 600, this case had already been considered by the Court of Appeal in 2004. Chao Hick Tin JA said as follows at [13]:
The cases cited by the appellant …, namely In re Majory, A Debtor…, Re Laserworks Computer Services Inc (1998) 78 ACWS (3d) 19, In re Davies (1876) 3 Ch D 461 and In re Adams (1879) 12 Ch D 480, are all cases where the issue was whether the grant of a bankruptcy petition would be an abuse of process, which is not the question here. The principle established in these cases is not in dispute and to the extent that an abuse of process would be a ground to refuse the making of a bankruptcy order, it must follow that if a creditor’s objection to a discharge is based on a ground which constitutes an abuse of process, the court should have no regard whatsoever to that objection. From the passage of the judge below which we have just quoted, it is clear that he totally disregarded the irrelevant extraneous factors. He had regard only to the objective facts in coming to his determination.
15 Likewise, in the present appeal, it was made clear from the start...
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