Rothstar Group Ltd v Leow Quek Shiong and other appeals
Judge | Andrew Phang Boon Leong JCA |
Judgment Date | 21 March 2022 |
Neutral Citation | [2022] SGCA 25 |
Citation | [2022] SGCA 25 |
Court | Court of Appeal (Singapore) |
Published date | 24 March 2022 |
Docket Number | Civil Appeals Nos 36, 37 and 38 of 2021 |
Plaintiff Counsel | Bazul Ashhab bin Abdul Kader, Chan Cong Yen Lionel, Foo Chuan Min Jerald and Caleb Tan Jia Chween (Oon & Bazul LLP) (instructed), Tan Wen Cheng Adrian, Tan Choon Yuan Delson and Theenan Narendra Mudaliar (August Law Corporation) |
Defendant Counsel | Lee Eng Beng SC, Sim Kwan Kiat, Cheong Tian Ci Torsten and Wong Ye Yang (Rajah & Tann Singapore LLP),Lee Eng Beng SC, Chua Beng Chye, Raelene Su-Lin Pereira, Cheong Tian Ci Torsten, Yeoh Su Yi and Foung Han Peow (Rajah & Tann Singapore LLP) |
Subject Matter | Civil Procedure,Appeals,Leave to introduce new points on appeal,Insolvency Law,Avoidance of transactions,Transactions at an undervalue,Land,Caveats,Remedies of caveatee,Conveyance,Voluntary conveyances to defraud creditors |
Hearing Date | 27 January 2022 |
Upon the insolvency of an individual or a company, the statutory scheme set out in the Bankruptcy Act (Cap 20, 2009 Rev Ed) (“the BA”), the Companies Act (Cap 50, 2006 Rev Ed) (“the CA”), and now the Insolvency, Restructuring and Dissolution Act 2018 (Act 40 of 2018) (“the IRDA”) governs the avoidance of certain antecedent transactions. While the conditions for avoidance vary according to the particular ground of avoidance and type of transaction in issue, they are generally animated by a common policy: namely, “protect[ing] the general body of creditors against a diminution of the assets available to them by a transaction which confers an unfair or improper advantage on the other party” (
These appeals have also provided us with an opportunity to clarify the proper interpretation and application of s 98(3)(
We begin with an overview of the salient facts, a proper understanding of which is necessary to appreciate the specific legal issues raised.
Facts BackgroundAt all material times, Mr Ng Say Pek (“NSP”) and his son were the only two shareholders and directors of Agritrade International (Pte) Ltd (“AIPL”). NSP was also the sole shareholder and one of the two directors of Pictorial Development Pte Ltd (“Pictorial”), with the other director being his wife.
Pictorial owned 99% of a residential property that was NSP’s family home (“the Property”), with the remaining 1% owned by NSP in his own name.
Mortgages granted to RothstarUnder a loan agreement dated 9 April 2019 (“the Loan Agreement”) between AIPL and Rothstar Group Limited (“Rothstar”), Rothstar agreed to extend a loan of $5m (“the Loan”) to AIPL. As security for the payment and discharge of the Loan, AIPL was to procure a third-party equitable mortgage in respect of the Property in favour of Rothstar. On 10 June 2019, NSP and Pictorial granted an equitable mortgage over the Property (“the Equitable Mortgage”) to Rothstar as security for the fulfilment of AIPL’s obligations under the Loan Agreement.
AIPL failed to make repayment of the Loan by 16 July 2019, the date stipulated under the Loan Agreement. Thereafter, the deadline for the repayment of the Loan was extended twice, on 20 August 2019 and 4 November 2019, for a total of six months until 1 February 2020. On 27 November 2019, Rothstar, AIPL, Pictorial and NSP entered into a Deed of Discharge and Termination (“the Deed of Discharge”), under which the Equitable Mortgage was terminated in consideration of NSP and Pictorial agreeing to grant a legal mortgage over the Property to Rothstar. On 2 December 2019, NSP and Pictorial executed the legal mortgage (“the Legal Mortgage”), as security for all sums due and payable by them and/or AIPL to Rothstar. The Legal Mortgage was registered on 5 December 2019.
On or around 21 December 2019, NSP absconded from Singapore. AIPL failed to repay the Loan by 1 February 2020.
Insolvency of Pictorial, NSP and AIPLA bankruptcy order was made against NSP on 12 March 2020 and private trustees in bankruptcy (“the Private Trustees”) were appointed. On 18 March 2020, the Private Trustees lodged a caveat against the Property on the basis that NSP’s assets, including his 1% interest in the Property, vested in them upon NSP’s bankruptcy (“the Private Trustees’ Caveat”). On 30 April 2020, the Private Trustees applied to compulsorily wind up Pictorial. On 19 June 2020, Pictorial was ordered to be wound up and a liquidator (“the Liquidator”) was appointed. On 29 June 2020, the Liquidator lodged a further caveat against the Property (“the Liquidator’s Caveat”). Thereafter, AIPL was placed under judicial management. Its judicial managers filed a winding up application on 4 September 2020 and AIPL was wound up on 21 September 2020.
Commencement of proceedingsOn 20 January 2021, the Liquidator and the Private Trustees applied for the Legal Mortgage to be set aside on the ground that it was a transaction at an undervalue or a voluntary conveyance to defraud creditors, and for Rothstar to deliver vacant possession of the Property to them. In response, on 26 January 2021, Rothstar applied under s 127(1) of the Land Titles Act (Cap 157, 2004 Rev Ed) (“the LTA”) for the Private Trustees to show cause as to why the Private Trustees’ Caveat should not be removed.
The winding up and bankruptcy applications against Pictorial and NSP respectively were made, and the Legal Mortgage was granted, before the IRDA came into operation on 30 July 2020. It is undisputed that the pre-IRDA versions of the BA, the CA and the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) (“the CLPA”) are the applicable statutes.
Decision below In
However, the Judge found that the Legal Mortgage was
Having found that the Legal Mortgage was void, the Judge consequently dismissed Rothstar’s application to remove the Private Trustees’ Caveat (GD at [86]).
Summonses for leave to raise new points on appeal Before we address the substantive issues arising in these appeals, we deal briefly with the parties’ applications under O 57 r 9A(4)(
At the commencement of the hearing before us on 27 January 2022, we allowed all the applications as the new points were essentially questions of law and, as the parties confirmed, no fresh evidence was required for these points to be determined on appeal. As this court noted in
The following issues arise for our determination in these appeals:
We begin with the issue of whether the Legal Mortgage was a transaction at an...
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Rothstar Group Ltd v Leow Quek Shiong
...Group Ltd and Leow Quek Shiong and other appeals [2022] SGCA 25 Andrew Phang Boon Leong JCA, Steven Chong JCA and Chao Hick Tin SJ Civil Appeals Nos 36, 37 and 38 of 2021 Court of Appeal Insolvency Law — Avoidance of transactions — Transactions at an undervalue — Insolvent individual and co......