Re People's Parkway Development Pte Ltd

• Jurisdiction: Singapore
• Judge: L P Thean J
• Judgment Date: 30 September 1991
• Neutral Citation: [1991] SGHC 140
• Docket Number: Companies Winding Up No 437 of 1986, Summons in Chambers No 1327 of 1991
• Date: 30 September 1991
• Year: 1991
• Published date: 19 September 2003
• Plaintiff Counsel: Petrus Huang (Deputy Public Prosecutor)
• Citation: [1991] SGHC 140
• Defendant Counsel: Harry Lee Wee and Sum Chong Mun (Sim Hill Tan & Wong)
• Court: High Court (Singapore)
• Subject Matter: s 253(1)(b) Companies Act (Cap 50, 1990 Ed),Companies,r 33(1)(b) Companies (Winding-Up) Rules 1969,Words and Phrases,Petition,Substitution of petitioning creditor,'Contingent or prospective creditor',Discretion of court,Winding up,Petitioner unable to proceed with petition,Whether applicant has a right to present the petition

Cur Adv Vult

This was an application by the Attorney General (`the applicant`) to be substituted as the petitioning creditor in place of the People`s Park Katong Development Pte Ltd, in liquidation (`Katong`) in the petition for the winding up of People`s Parkway Development Pte Ltd (`the company`). The applicant inithis application on behalf of the Government of Singapore as a creditor of the company. When the application first came before me, after hearing arguments of the respective counsel, I dismissed it with costs. The applicant, however, then requested for a hearing of further arguments, and I acceded to the request. On further hearing, I was persuaded that the order previously made by me was wrong. I therefore recalled the order (which had not been extracted), allowed the application and made an order in terms thereof. I now give my reasons.

This Companies Winding-Up Petition No 437 of 1986 was presented by Katong against the company on 27 June 1986, and since then has not progressed very far. On 30 November 1987, the hearing of the petition, with the consent of Katong, was adjourned sine die pending the outcome of two related matters:

(a) the application by way of Summons-in-Chambers No 6412 of 1987 for the removal of the liquidators of Katong, and

(b) the application by way of Summons-in-Chambers No 8765 of 1986 for the reversal of the decision of the liquidators of Katong in rejecting the proof of debt filed by the company.

Since then both the summonses had been heard and disposed of by me some time ago. With respect to Summons-in-Chambers No 6412 of 1987 I gave my decision on 10 July 1990 in which I refused to remove the liquidators, and as regards Summons-in-Chambers No 8765 of 1986 I gave my decision on 22 January 1991 in which I refused to reverse the decision of the liquidators of Katong in rejecting the proof of debt filed by the company. Against my decisions on the two applications, appeals have been filed and are presently pending before the Court of Appeal.

The applicant on 4 March 1991 took out this application, Summons-in-Chambers No 1327 of 1991, for an order that the applicant be substituted as the petitioner in place of Katong in the winding-up petition. The application was made under r 33(1) of the Companies (Winding-Up) Rules 1969, which provides as follows:

When a petitioner is not entitled to present a petition or, whether so entitled or not, where he -

(a) fails to take all steps prescribed by these Rules preliminary to the hearing of the petition;

(b) consents to withdraw his petition or to allow it to be dismissed or the hearing to be adjourned; or

(c) fails to appear in support of his petition when it is called on in Court on the day originally fixed for the hearing thereof or on any day to which the hearing has been adjourned or if appearing does not apply for an order in terms of the prayer of his petition,

the Court may, upon such terms as it thinks just, substitute as petitioner any person who, in the opinion of the Court, would have a right to present the petition and who is desirous of proceeding with the petition.

It was submitted by counsel for the applicant that as the hearing of the petition was, with the consent of Katong, adjourned sine die, Katong, in effect, had consented to allow the hearing to be adjourned sine die and therefore, the court has the power under r 33(1)(b) to make the order for substitution. Counsel for the company, on the other hand, submitted that though Katong had consented to the adjournment it could not proceed with the petition, even if it had intended to do so, because of the two matters raised at the time. Even as of now, it could not proceed further because of the appeals pending before the Court of Appeal. Accordingly, an order for substitution ought not to be made under that rule. I was unable to agree with this contention. As counsel for the applicant submitted, the commencement part of r 33(1) provides that where a petitioner is not entitled to present a petition, a substitution order may be made; a fortiori, if the petitioner cannot proceed with the petition by reason of any impediment, as in the instant case, a substitution order may also be made. In my judgment, the application falls within r 33(1)(b).

I now turn to the next question, which is whether the applicant is a person who would have a right to present the petition within the meaning of r 33(1). Mr Ter Kim Cheu, the deputy senior state counsel,...