Re TPC Korea Co Ltd

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Philip Pillai JC
• Judgment Date: 12 January 2010
• Neutral Citation: [2010] SGHC 11
• Citation: [2010] SGHC 11
• Subject: Companies,Section 210 (10) Companies Act Cap 50,Availability to unregistered company foreign scheme of arrangement,Admiralty and Shipping,Admiralty in rem jurisdiction
• Plaintiff Counsel: Kevin Kwek and Corrine Taylor (Legal Solutions LLC)
• Publication Date: 19 January 2010
• Date: 12 January 2010
• Docket Number: Originating Summons No 1373 of 2009

Philip Pillai JC: The application

The application, as amended during the hearing, is for a Singapore court order founded on s 210(10) Companies Act (Cap 50, 2006 Rev Ed), and sought, inter alia, the following:

The [Applicant] be at liberty to convene a meeting of its creditors in Singapore for the purpose of considering and if thought fit, approving, with or without modification, the rehabilitation plan to be proposed on or before March 2010 in Seoul, Korea between the Company and its creditors (the “Scheme of Arrangement”).

and

That pending approval by the Court of the said Scheme of Arrangement or until the rehabilitation proceeding in Korea is terminated (whichever is the later), all contingent or fresh suits, actions or proceedings against the Applicant or any arrest, attachment, sequestration, seizure, detention, enforcement or execution against any assets of the Applicant, including but not limited to any vessels in the Applicant’s ownership and including any actions or proceedings (whether in rem or in personam or otherwise) be restrained as at the date of the Order to be made herein and forthwith, except by leave of the Court and subject to such terms as the Court imposes.

The applicant has no presence or assets in Singapore save interests in the vessels

The Applicant, TPC Korea Co., Ltd is a company incorporated in the Republic of Korea (“Korea”). The Applicant had filed an ex parte application because the Applicant is currently unaware of any creditors in Singapore. The Applicant has no presence in Singapore, has no representative office, and has no assets in Singapore. To the best of its knowledge, no suit has been filed against the Applicant.

The Applicant has interests in 5 vessels which come into the port of Singapore regularly. The vessels are: MV “TPC AUCKLAND”, “MV WELLINGTON” and MV “TPC NAPIER”, which were all demise chartered to the Applicant; MV “TPC ARIRANG”, a leased vessel where the registered owner is KEB Capital Inc and operated and leased to the Applicant; and MV “TAURANGA”, which is owned by the Applicant (the “Relevant Vessels”).

The Korean rehabilitation process

The Applicant is concerned about the possibility that its vessels might be arrested in Singapore while in port, and how that possibility might jeopardise the rehabilitation process currently in progress in its country of incorporation, Korea. The Korean rehabilitation process is similar to a Chapter 11 process in the United States of America. The Applicant has received various court orders under the Korean Debtor Rehabilitation and Bankruptcy Act (Act No 7895, 2006), including a Preservation Order, a Stay Order and a Commencement Order. Counsel informed me that, under those orders, any new in rem proceeding against a ship which is founded upon a rehabilitation security right is prohibited and any existing proceeding and arrest is automatically stayed. The Korean rehabilitation process contemplates creditor meetings and approval from two-thirds of the unsecured creditors and three-quarters of the secured creditors and (only if the total assets of the company exceed its total liabilities) the majority of shareholders are required to approve the rehabilitation plan. The process is expected, if duly approved, to be completed by March or April 2010.

The application is for a s 210 (10) Companies Act pre-emptive restraining order in Singapore against any proceedings including the Relevant Vessels that might be initiated in Singapore, whether in rem, in personam or otherwise, except by leave of the Court. It is proposed that a copy of the Rehabilitation Plan will be sent to all Singapore creditors and a meeting will be convened in Singapore to approve or modify the Rehabilitation Plan proposed in Korea, viz the country of incorporation.

It is self-evident that a Singapore court order as applied for would be beneficial to or facilitate the rehabilitation process in the country of incorporation and would be something a Singapore court would, where it has jurisdiction, be minded to support in the interest of comity.

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