Tan Hup Yuan Patrick v The Griffin Coal Mining Co Pty Ltd (administrators appointed) and others

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 06 August 2014
• Neutral Citation: [2014] SGHC 156
• Court: High Court (Singapore)
• Docket Number: Originating Summons (Bankruptcy) No 13 of 2013, (Registrar’s Appeal No 170 of 2013), (Summons No 3041 of 2013 and No 5261 of 2013)
• Published date: 20 August 2014
• Year: 2014
• Hearing Date: 09 October 2013
• Plaintiff Counsel: Dominic Chan (Characterist LLC)
• Defendant Counsel: Chan Leng Sun, SC and Sheik Umar (Wong & Leow LLC)
• Subject Matter: Insolvency Law,Bankruptcy,Statutory demand,Debtor setting aside statutory demand,Res judicata
• Citation: [2014] SGHC 156

Woo Bih Li J: Introduction

This was an appeal by Patrick Tan Hup Yuan (“the Plaintiff”) against the decision of the Assistant Registrar dismissing the Plaintiff’s application in Originating Summons (Bankruptcy) No 13/2013 (“the OSB 13/2013”) for the following orders: that the statutory demand (“the Statutory Demand”) dated 13 February 2013 issued by the defendants (“the Defendants”) against the Plaintiff demanding payment of AUD3,037,236.88 be set aside; that the bankruptcy proceedings by the Defendants against the Plaintiff be stayed; and that the Defendants pay the Plaintiff costs of the originating summons.

After hearing arguments, I dismissed the Plaintiff’s appeal. I set out my reasons below.

The main issue

The main issue was whether the Plaintiff could rely on allegations of certain facts to resist the Statutory Demand in the light of a settlement agreement and a consent judgment which I will elaborate on below. I decided that he could not.

The background

The Defendants commenced Suit No 749 of 2010 (“the Singapore Suit”) against the Plaintiff for, inter alia, an alleged breach of a deed of guarantee dated 27 August 2010 (“the Guarantee”). The Plaintiff had guaranteed the performance of the obligations of Montreal Capital Group Limited (“Montreal”) under an agreement (“the Implementation Agreement”) with the Defendants to, inter alia, inject fresh capital to the first defendant in voluntary administration.

The Statutory Demand which was the subject of OSB 13/2013 was issued when the Plaintiff failed to pay the sums due under a consent judgment dated 20 November 2012 (“the Consent Judgment”) made in the Singapore Suit by Prakash J. This Consent Judgment was made pursuant to a settlement agreement dated 19 November 2012 entered into by the parties (“the Settlement Agreement”). Clause 6 of the Settlement Agreement was an entire agreement clause which provided:

Entire Agreement. This Agreement contains the entire agreement and supersedes any prior understandings, negotiations and agreements with respect to the subject matter hereof.

The Plaintiff’s case

The Plaintiff made two arguments to support his application to set aside the Statutory Demand. First, the Defendants had assigned to another party, through a Deed of Assignment and Appointment of Attorney dated 28 February 2011 (“the Deed of Assignment”), its interests under the Guarantee dated 27 August 2010 entered into between the Plaintiff and the Defendants. Since the Defendants’ claim in the Singapore Suit was on the basis of a breach of this guarantee which had been assigned to another party, the Defendants were not entitled to maintain the Singapore Suit and enter judgment against the Plaintiff. I will refer to this argument as “the locus standi argument”.

Secondly, the Plaintiff argued that he had a valid cross-claim against the Defendants arising from the Defendants’ breach of an alleged agreement made at a meeting on 27 August 2012 in Sydney which I will refer to as “the Sydney Agreement”. I will refer to this argument as “the cross-claim argument”.

The thrust of the Sydney Agreement was as follows. The Plaintiff had allegedly agreed to discount five standby letters of credit totalling AUD250m which the Defendants were looking to discount, at between 5% to 6%. In consideration of this, the Defendants allegedly agreed before the Settlement Agreement dated 19 November 2012 and the Consent Judgment dated 20 November 2002 that the Singapore Suit would be considered settled. The Defendants were to furnish information showing the primary text of the standby letters of credit, which would allow the Plaintiff’s bank to quote the applicable rates. AUD250m was to be held on escrow by the Plaintiff’s counsel. If the Defendants were to receive confirmation from the Plaintiff’s bank that the bank was prepared to discount the letters of credit, this sum would not be remitted to the Defendants.

Pursuant to the Sydney Agreement, the Plaintiff contacted JP Morgan, Singapore, and secured it as the discounting bank at a rate of 5.5%. At the Defendants’ request, the Plaintiff and JP Morgan signed a non-disclosure agreement before the Defendants would release the wording of the standby letters of credit. However, the Defendants allegedly failed to provide the Plaintiff with the wording of the standby letters of credit despite repeated requests to do so. Accordingly, the Plaintiff claimed to have suffered loss and damage from the Defendant’s breach of the Sydney Agreement.

The Defendants’ case

In respect of the locus standi argument, the Defendants argued that: The Plaintiff was attempting to go behind the Consent Judgment and inquire into the validity of the debt, and this was not permissible. The fact that the Plaintiff had not proceeded to set aside the Consent Judgment showed that he did not believe that he had legitimate grounds to do so. The Plaintiff’s argument was in effect, a plea that there was no cause of action between the Defendants and the Plaintiff. This was prohibited by cause of action estoppel by virtue of the Consent Judgment. In the alternative, the issue was fundamental to the finding of the Plaintiff’s liability established by the Consent Judgment. Accordingly, an issue estoppel operated to prevent the Plaintiff from raising this argument.

In respect of the cross-claim argument, the gist of the Defendants’ argument was that: the Plaintiff was precluded from relying on the Sydney Agreement in view of cl 6 of the Settlement Agreement, which was the entire agreement clause; and the cross-claim argument was not credible.

The court’s reasons

As regards the locus standi argument, the starting point was r 98(2) of the Bankruptcy Rules (Cap 20, R 1, 2006 Revised Edition) (“the Rules”), which set out the grounds which a court could rely on to set aside a statutory demand:

98.—(1) On the hearing of the application, the court may either summarily determine the application or adjourn it, giving such directions as it thinks appropriate.

(2) The court shall set aside the statutory demand if —

(a) the debtor appears to have a valid counterclaim, set-off or cross demand which is equivalent to or exceeds the amount of the debt or debts specified in the statutory demand;

(b) the debt is disputed on grounds which appear to the court to be substantial;

(c) it appears that the creditor holds assets of the debtor or security in respect of the debt claimed by the demand, and either rule 94(5) has not been complied with, or the court is satisfied that the value of the assets or security is equivalent to or exceeds the full amount of the debt;

(d) rule 94(1) has not been complied with; or

(e) the court is satisfied, on other grounds, that the demand ought to be set aside.

Rule 98(2)(e) of the Rules is to be read with para 144 of the Supreme Court Practice Directions (2013 Ed, 1 January 2013 release) (“the PD”) which provided:

144. Applications to set aside statutory demands made under the Bankruptcy Rules (1) Rule 97 of the Bankruptcy Rules allows debtors to apply to set aside statutory demands within 14 days from the date of service; or, where the demand was served outside jurisdiction, within 21 days.

(2) Without prejudice to Rule 98 of the Bankruptcy Rules, on an application to set aside a statutory demand based on a...