Tan Ng Kuang Nicky v Metax Eco Solutions Pte Ltd
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ,Andrew Phang Boon Leong JCA,Judith Prakash JCA,Steven Chong JCA,Quentin Loh JAD |
Judgment Date | 03 March 2021 |
Neutral Citation | [2021] SGCA 16 |
Year | 2021 |
Published date | 09 March 2021 |
Hearing Date | 20 January 2021 |
Plaintiff Counsel | Seah Zhen Wei Paul and Chin Wan Yew Rachel (Tan Kok Quan Partnership) |
Defendant Counsel | Rethnam Chandra Mohan and Chia Ming Yee Doreen (Rajah & Tann Singapore LLP) |
Court | Court of Appeal (Singapore) |
Citation | [2021] SGCA 16 |
Docket Number | Civil Appeal No 146 of 2019 |
On 20 January 2021, a sitting of a five-judge coram of the Court of Appeal was convened to hear arguments on what had been put forward as an important point of law to be decided for the first time in Singapore. At the end of the hearing, at which only the appellants presented arguments, the appeal was dismissed summarily. In the normal case, these grounds would contain the legal reasons for that dismissal. This is not a normal case. The purpose of these grounds is to explain why we do not think it appropriate to deal in substance with the question of law presented to us and to express our strong disapproval of how the matter came before us.
As a brief indication of how this situation arose, we set out below a substantial extract from the official minute sheet of the hearing of the appeal. It should be borne in mind when reading the minutes that the appellants who are the three joint and several liquidators of a company in liquidation had filed their Appellants’ Case and other documents necessary for the appeal in the normal course. The respondent, which is a company claiming to be a creditor of the company in liquidation, had on the other hand not filed a Respondent’s Case or any other document. Its counsel, however, were present for the hearing of the appeal.
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The explanations that we requested were duly delivered. Having studied them, our initial assessment that there had been improper conduct on the part of the liquidators and both sets of counsel was, regrettably, amply confirmed. We explain this conclusion below. First, for context, we will set out the background of the appeal.
The background SEC and Metax The appellants,
The respondent is Metax Eco Solutions Pte Ltd (“Metax”), a subcontractor in the construction industry.
Sometime in late 2010/early 2011, SEC and Metax entered into a contract for Metax to supply goods to SEC. On 25 July 2011, Metax wrote to SEC purporting to rescind the contract.
On 12 November 2012, SEC commenced HC/S 965/2012 (“Suit 965”) against Metax for the wrongful repudiation of the contract, claiming damages in the sum of $3,657,037.42. Metax counterclaimed against SEC for,
On 13 September 2015, SEC applied to the High Court for leave to convene a meeting with its creditors to propose a scheme of arrangement. SEC’s application was granted and a stay was ordered by the court in respect of all pending, contingent or fresh actions or proceedings against SEC. On 25 September 2015, because of the possibility of a scheme of arrangement, the Judge adjourned the hearing of Suit 965 to 24 May 2016. Eventually, SEC failed to persuade the majority of its creditors to approve the proposed scheme.
In the meantime, on 17 February 2016, SEC had applied to be placed under judicial management. A judicial management order was made on 27 June 2016. Consequently, the hearing of Suit 965 was postponed several times and finally to 30 October 2017.
On 7 August 2017, SEC was ordered to be wound up in HC/CWU 90/2017. As at the date of the winding-up order, SEC had about 746 creditors with total claims of approximately $190,764,861 in book value, and contingent claims of approximately $176,754,837, whereas the estimated realisable value of SEC’s assets amounted to approximately $24,288,507.
On 8 September 2017, Metax filed a proof of debt with the Liquidators for the sum of $2,728,692.46.
Events leading up to the Liquidators’ application in SUM 79On 16 October 2017, the Liquidators applied for a stay of proceedings in Suit 965. On 23 October 2017, the Judge granted the Liquidators’ application and ordered a stay of the hearing of Suit 965 until 23 October 2018, in order for the Liquidators to take stock of SEC’s affairs.
On 18 July 2018, Metax’s solicitors wrote to the Liquidators’ solicitors, requesting an update regarding the adjudication of Metax’s proof of debt and whether the Liquidators intended to proceed with Suit 965. On 26 September 2018, the Liquidators’ solicitors replied suggesting that in lieu of an oral hearing, it would be sensible to request the Judge to determine Suit 965 on the basis of the written closing submissions which the parties had already filed. Metax was not agreeable to this proposal. Thus, the Liquidators then had to decide whether to go ahead with the oral closing submissions, a course that would not only expose them to legal fees payable by SEC but would also incur the risk of SEC being ordered to pay Metax’s costs which costs would stand in priority to other...
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