Re TPC Korea Co Ltd

JudgePhilip Pillai JC
Judgment Date12 January 2010
Neutral Citation[2010] SGHC 11
Citation[2010] SGHC 11
Plaintiff CounselKevin Kwek and Corrine Taylor (Legal Solutions LLC)
Hearing Date15 December 2009,17 December 2009
Subject MatterCompanies,Section 210 (10) Companies Act Cap 50,Availability to unregistered company foreign scheme of arrangement,Admiralty and Shipping,Admiralty in rem jurisdiction
Date12 January 2010
Docket NumberOriginating Summons No 1373 of 2009
CourtHigh Court (Singapore)
Published date19 January 2010
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.

What is the scope of section 210(11) of the Companies Act?

The key question in this application is whether or not s 210(11) of the Companies Act confers jurisdiction on this court to issue a s 210(10) restraining order on a non-Singapore incorporated or registered company which has commenced a rehabilitation process in its country of incorporation, Korea. The Applicant does not have a place of business in Singapore, it does not carry on business in Singapore and it has no assets in Singapore save for interests in that the Relevant Vessels which regularly call at the port of Singapore. As a result of the Relevant Vessels being occasionally present in Singapore, they become susceptible to the admiralty jurisdiction of the Singapore courts.

The Companies Act applies primarily to companies incorporated in Singapore under it or its predecessor companies legislation. It also applies to foreign incorporated companies which are registered as such where they either carry on business or have assets in Singapore. Whether a provision applies only to Singapore incorporated companies or extends to foreign companies or other unregistered companies (as defined in the Act) depends on its interpretation. In the Companies Act the terms “companies”, “corporations”, “foreign companies” and “unregistered companies” are each defined generically or specifically under different Parts of the Act. The provision in issue, viz section 210(11), is contained in Part VII of the Act, which provides for schemes of arrangement, reconstructions and amalgamations...

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3 cases
  • Re Pacific Andes Resources Development Ltd and other matters
    • Singapore
    • High Court (Singapore)
    • 27 Septiembre 2016
    ...Aerospatiale v Lee Kui Jak [1987] AC 871 (folld) Stichting Shell Pensioenfonds v Krys [2015] AC 616 (folld) TPC Korea Co Ltd, Re [2010] 2 SLR 617 (refd) Union Accident Insurance Co Ltd, Re [1972] 1 WLR 640 (folld) Facts Pacific Andes Resources Development Ltd (“PARD”), Parkmond Group Limite......
  • Re Taisoo Suk (as foreign representative of Hanjin Shipping Co Ltd)
    • Singapore
    • High Court (Singapore)
    • 14 Septiembre 2016
    ...that regard that should have led to a different result may or may not be taken up on another day. I did note that in Re TPC Korea Co Ltd [2010] 2 SLR 617 (“TPC Korea”), the Court there was of the view that the High Court (Admiralty) Jurisdiction Act created a self-contained regime for the r......
  • Re Conchubar Aromatics Ltd and other matters
    • Singapore
    • High Court (Singapore)
    • 17 Diciembre 2015
    ...as there was sufficient nexus to Singapore such that these companies were liable to be wound up under the Act: Re TPC Korea Co Ltd [2010] 2 SLR 617 (“Re TPC”) at [12]. In the present case the restructuring proposal put forward to the Court was sufficiently particularised to merit due consid......
5 books & journal articles
  • CROSS-BORDER INSOLVENCY AND ITS IMPACT ON ARBITRATION
    • Singapore
    • Singapore Academy of Law Journal No. 2014, December 2014
    • 1 Diciembre 2014
    ...(which provides for stay of proceedings) and s 285 (which enables the court to make orders for examination). 149Re TPC Korea Co Ltd[2010] 2 SLR 617. 150Report of the Insolvency Law Review Committee (2013) at p 228. 151Report of the Insolvency Law Review Committee (2013) at p 229. The Singap......
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2010, December 2010
    • 1 Diciembre 2010
    ...plaintiff was a ‘creditor’ under the scheme. Availability of restraining of order to foreign corporations 16.151 In Re TPC Korea Co Ltd [2010] 2 SLR 617, the applicant, a foreign corporation incorporated in the Republic of Korea, had applied for rehabilitation in Korea under the Debtor Reha......
  • Admiralty, Shipping and Aviation Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2010, December 2010
    • 1 Diciembre 2010
    ...in ss 3 and 4 of the High Court (Admiralty Jurisdiction) Act (Cap 123, 2001 Rev Ed) were found to be wanting. Re TPC Korea Co Ltd [2010] 2 SLR 617 2.18 This case concerns a Korean shipping company, under rehabilitation in Korea, which had no presence, representative office or assets in Sing......
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2016, December 2016
    • 1 Diciembre 2016
    ...SA [2013] 1 AC 236 at [129]. 53 [2016] 5 SLR 787. 54 Cap 332, R 5, 2014 Rev Ed. 55 [2004] 2 HKLRD 760. 56 [2005] 2 HKC 589. 57 [2010] 2 SLR 617. 58 Cap 123, 2001 Rev Ed. 59 [2016] SGHC 287. 60 [2015] AC 1675. 61 400 BR 266 (Bankr Div Nev 2009). 62 [2016] SGHC 210. 63 Re Griffin Securities C......
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