Re Opti-Medix Ltd ((in Liquidation)) and another matter

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeAedit Abdullah JC
Judgment Date03 June 2016
Neutral Citation[2016] SGHC 108
Citation[2016] SGHC 108
Publication Date11 November 2016
Plaintiff CounselStephanie Yeo Xiu Wen (WongPartnership LLP)
SubjectCourt not of the place of incorporation,Insolvency,Recognition of foreign insolvency proceedings
Docket NumberOriginating Summonses Nos 328 and 330 of 2016
Date03 June 2016
Aedit Abdullah JC: Introduction

Applications were made ex parte in two related cases for the recognition of foreign insolvency proceedings in respect of Medical Trend Limited (“MTL”) and Opti-Medix Limited (“OPL”) (collectively, the “Companies”) and for the appointment of a foreign bankruptcy trustee pursuant to those foreign proceedings. After consideration of the affidavits filed as well as the submissions made by Counsel for the Applicant, I granted the orders sought. These grounds are issued as there has apparently been no written decision on the recognition of foreign liquidators (or bankruptcy trustees as in this case) from jurisdictions other than the place of incorporation of the companies concerned.

Background

The Companies were incorporated in the British Virgin Islands (the “BVI”). Their main business was factoring receivables from medical institutions in Japan. Such factoring was funded by non-recourse notes issued by the Companies. These notes were governed by Singapore law, with a Singapore address for service of notices, but were marketed only in Japan using Japanese brokers. The proceeds were transferred to Singapore bank accounts.

The Companies could not sustain their businesses, as there was insufficient profit to meet coupon and principal payments under the notes. New notes were issued to pay previous ones. Eventually, the Securities and Surveillance Commission of Japan suspended the issuing of new notes by the Companies in 2015. Default followed. Adopting the terminology used in translation of the Japanese documents, bankruptcy proceedings were commenced against the Companies. On 13 November 2015, bankruptcy orders were granted by the Tokyo District Court, and the Applicant was appointed as their Bankruptcy Trustee.

The Companies had primarily Japanese creditors. MTL had an unsecured debt of about ¥5.7 billion. Its ten largest creditors, each of whom held debts of between ¥44 million–351 million, all appeared to be Japanese entities or individuals. There were two Singapore creditors, who were owed about ¥1.6 million and ¥9.6 million respectively. The general debt could not be ascertained by the time of the application to the court.

OPM had a debt of almost ¥13 billion in respect of the loan notes that it had issued. Its ten largest creditors, each of whom held debts of between ¥100 million–341 million, again all appeared to be Japanese entities or individuals. An unknown amount was owed to one Singapore creditor for service fees. And again, the total amount of general debt could not be ascertained.

The Companies appear to have held some balance monies in various Singapore bank accounts. These accounts possibly held several hundred millions of Yen.

The Applicant sought to exercise his powers under the Japanese bankruptcy orders to ascertain, administer, and dispose of the Companies’ assets. It was recognised that as the Companies were possibly under an obligation to register as foreign companies conducting business in Singapore, preferential debts and debts incurred in Singapore would have to be paid before remitting the surplus out of Singapore.

Applicant’s case

The Applicant sought the recognition in Singapore of his appointment as the Bankruptcy Trustee of the Companies. He cited a decision of the Court of Appeal in Beluga Chartering GmbH (in liquidation) and others v Beluga Projects (Singapore) Pte Ltd (in liquidation) and another (Deugro (Singapore) Pte Ltd, non-party) [2014] 2 SLR 815 (“Beluga”), which in turn referred to a decision of Chan Seng Onn J in Re Cosimo Borrelli Originating Summons No 762 of 2010 (“Re Cosimo Borrelli”), granting a declaration that a provisional liquidator of a Cayman company was authorised to recover and take possession of assets in Singapore. He added that Singapore courts have recognised a liquidator appointed by a jurisdiction other the place of incorporation, citing an old case, Re Lee Wah Bank Ltd [1958] 2 MC 81 (“Re Lee Wah Bank”).

The Applicant-Trustee argued that since there were no competing claims by liquidators from different jurisdictions, the Singapore court should recognise his appointment. No...

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14 cases
  • China Agrotech Holdings Ltd
    • Cayman Islands
    • Grand Court
    • 19 September 2017
    ...A.C. 133; [1973] 2 All E.R. 943; [1973] F.S.R. 365; [1974] R.P.C. 101; (1973), 117 Sol. Jo. 567, referred to. (17) Opti-Medix Ltd., Re, [2016] 4 SLR 312; [2016] SGHC 108, considered. (18) Picard v. Primeo Fund, 2013 (1) CILR 164, considered. (19) Queensland Mercantile & Agency Co. Ltd. v. A......
  • Re Pacific Andes Resources Development Ltd and other matters
    • Singapore
    • High Court (Singapore)
    • 27 September 2016
    ...418 (Ch) (distd) Metinvest BV, Re [2016] EWHC 79 (Ch) (refd) Ng Huat Foundations Pte Ltd, Re [2005] SGHC 112 (refd) Opti-Medix Ltd, Re [2016] 4 SLR 312 (refd) Oriental Inland Steam Co, Re; ex p Scinde Railway Co (1874) LR 9 Ch App 557 (refd) Projector SA, Re [2009] 2 SLR(R) 151; [2009] 2 SL......
  • Allenger, Shiona (trustee-in-bankruptcy of the estate of Pelletier, Richard Paul Joseph) v Pelletier, Olga and another
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    • High Court (Singapore)
    • 22 December 2020
    ...and endorsed by the Singapore court in Beluga Chartering ([66] supra) at [99], Re Opti-Medix Ltd (in liquidation) and another matter [2016] 4 SLR 312 at [17], Re Taisoo Suk (as foreign representative of Hanjin Shipping Co Ltd) [2016] 5 SLR 787 (“Re Taisoo Suk”) at [15]–[18], Re Gulf Pacific......
  • Heince Tombak Simanjuntak and others v Paulus Tannos and others
    • Singapore
    • High Court (Singapore)
    • 18 September 2019
    ...1 Lloyd's Rep 189 (refd) Manharlal Trikamdas Mody v Sumikin Bussan International (HK) Ltd [2014] 3 SLR 1161 (refd) Opti-medix Ltd, Re [2016] 4 SLR 312 (refd) Royal Bank of Scotland NV, The v TT International Ltd [2015] 5 SLR 1104 (refd) Stegmann, Ex parte (1902) TS 40 (refd) Taisoo Suk, Re ......
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2 firm's commentaries
  • Recognition Of Liquidator Not Appointed In Place Of Incorporation
    • Hong Kong
    • Mondaq Hong Kong
    • 19 August 2016
    ...another case involving similar facts, assistance may be derived from the decision of the High Court of Singapore in Re Opti-Medix Ltd [2016] SGHC 108. In brief, two companies were incorporated in the British Virgin Islands but carried on business primarily in Japan. In 2015, the Tokyo Distr......
  • CW Advanced Technologies Limited – Recognition Issues Considered
    • Hong Kong
    • Mondaq Hong Kong
    • 24 August 2018
    ...with creditors)." 7 Joint Administrators of African Minerals Ltd v Madison Pacific Trust Ltd [2015] 4 H KC 2 15. 8 Re Opti-Medix Ltd [2016] SGHC 108; Re China Agrotech Holdings Ltd (Cayman Grand Court, 19 September 9 See, for example, Re Rodenstock GmbH [2011] EWHC 1004. 10 The comparator i......
2 books & journal articles
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2016, December 2016
    • 1 December 2016
    ...payments” to creditors, and the possibility of proposing a new scheme to be considered and voted upon. 1 See, eg, Re Opti-Medix Ltd [2016] 4 SLR 312; Re Taisoo Suk [2016] 5 SLR 787; Pacific Andes Resources Development Ltd [2016] SGHC 210. 2 Act 15 of 2017. 3 Living the Link Pte Ltd v Tan La......
  • THE GIBBS PRINCIPLE
    • Singapore
    • Singapore Academy of Law Journal Nbr. 2017, December 2017
    • 1 December 2017
    ...Cap 322, R 5, 2014 Rev Ed. 80[2016] SGHC 210. 81Re Pacific Andes Resources Development Ltd[2016] SGHC 210 at [52]. 82[2014] 2 SLR 815. 83[2016] 4 SLR 312. 84Re Opti-Medix Ltd[2016] 4 SLR 312 at [17]. 85[2016] 5 SLR 787. 86Re Taisoo Suk[2016] 5 SLR 787 at [32]. 87 See Ian F Fletcher, Insolve......

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