Re Kotjo Johanes Budisutrisno, ex parte International Factors Leasing Pte Ltd

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 14 June 2004
• Neutral Citation: [2004] SGHC 133
• Citation: [2004] SGHC 133
• Defendant Counsel: Sean Lim (Hin Tat Augustine and Partners)
• Published date: 21 June 2004
• Plaintiff Counsel: Intekhab Khan (M and A Law Corporation)
• Date: 14 June 2004
• Docket Number: Bankruptcy No 4138 of 2003 (Registrar's
• Court: High Court (Singapore)
• Subject Matter: Bankruptcy,Jurisdiction,Whether r 102(2) Bankruptcy Rules operating as time frame within which to make application for leave to amend petition,Rules 102(2), 104 Bankruptcy Rules (Cap 20, R 1, 2002 Rev Ed), s 60 Bankruptcy Act (Cap 20, 2000 Rev Ed),Insolvency Law,Whether injustice to debtor caused if amendment allowed

14 June 2004

Belinda Ang Saw Ean J:

1 This was an appeal by the debtor, Johanes Budisutrisno Kotjo (“Kotjo”), against the order of the assistant registrar made on 9 February 2004 granting the petitioning creditors, International Factors Leasing Pte Ltd, leave to amend the bankruptcy petition filed on 9 October 2003. The short point of the appeal, which I dismissed with costs fixed at $700 on 10 March 2004, was whether this petition could be amended. On 6 April 2004, Kotjo appealed against my decision.

2 The statement in para 1 of the petition in its original form was presented on the basis that:

The Debtor has within the period of one year immediately preceding the date of the presentation of this Petition been domiciled and/or ordinarily resident in Singapore within the jurisdiction of this Court.

3 The assistant registrar granted leave to amend para 1 of the petition in the following manner:

The Debtor is domiciled in Singapore and/or has property in Singapore and/or has, within the period of one year immediately preceding the date of the presentation of the Petition (i) been ordinarily resident or has had a place of residence in Singapore; or (ii) carried on business in Singapore. The Debtor is a Singapore permanent resident and is the owner of and resides at the property No 10 Cuscaden Walk #23-01, Singapore 249694. He is also the director and/or shareholder in various companies and businesses in Singapore.

4 On 12 November 2003, an application was filed on Kotjo’s behalf to set aside the petition for several reasons. One of the reasons was that he was not ordinarily resident within the jurisdiction. Neither was he domiciled in Singapore. Moreover, since 2000, he had ceased all his business activities in Singapore. The petitioning creditors then applied to amend para 1 of the petition on 12 January 2004. In support of the application to amend, Doreen Chia Lee Yoon, Assistant Vice President of the petitioning creditors, filed an affidavit on 12 January 2004. She deposed that Kotjo has property in Singapore in that he is the owner of 10 Cuscaden Walk #23-01, Singapore 249694. In addition, he has had, within the period of one year preceding the date of presentation of the petition, a place of residence in Singapore or carried on business in Singapore. Various searches were exhibited to her affidavit to show ownership of the property and his directorship and shareholdings in various companies. Kotjo, on 8 February 2004, filed an affidavit in reply refuting the allegations as untrue. As stated, leave was granted by the assistant registrar to amend para 1 of the petition in the manner set out in [3].

5 Kotjo opposed the grant of leave to amend. His counsel, Mr Intekhab Khan, argued that the court has no jurisdiction to grant leave to amend the petition as the application to amend was made after expiry of the four months prescribed by r 102(2) of the Bankruptcy Rules (Cap 20, R 1, 2002 Rev Ed) (“the Rules”) for presenting a petition. However, if the court has jurisdiction to entertain the application, no leave to amend should be granted, as the amendment was to add new facts and grounds after expiry of the prescribed four months. By analogy with the principle that leave should not be given to a plaintiff to amend his writ or statement of claim to add a new cause of action which is already time barred by the time of the application to amend, it was argued that leave should not be given to amend the petition to introduce new facts or grounds after the prescribed period of four months had lapsed.

6 In support of his argument, counsel referred me to ABC Co v XYZ Co Ltd [2003] 3 SLR 546. In that case, the applicant sought leave to amend the originating motion to set aside an arbitration award. Under Art 34 of the UNCITRAL Model Law on International Commercial Arbitration, which is found in the First Schedule to the International Arbitration Act (Cap 143A, 2002 Rev Ed), an application to set aside an arbitral award may not be made after the lapse of three months from the date on which the applicant had received the award. The originating motion set out two grounds as bases for setting aside the award. The applicant sought leave, after expiry of the statutory period of three months, to amend the originating motion to add six new grounds. Judith Prakash J held that the application to amend an originating motion should be governed by O 20 r 5(2) and O 20 r 5(5) of the Rules of Court (Cap 322, R 5, 1997 Rev Ed). Such an amendment will be allowed only if the proposed new grounds arise out of the same facts or substantially the same facts as the grounds originally specified.

7 In my view, Mr Khan’s argument is unmeritorious and counsel’s reliance on ABC Co v XYZ Co Ltd is misplaced. The decision is of no assistance even though cited as an analogy.

8 The prescribed period in r 102(2) of the Rules is for presentation of a petition based on a statutory demand. Rule 102(2) provides that “[t]he petition shall not be presented if the statutory demand was served more than 4 months before the date of presentation of the petition”. It does not contemplate that a...