The Hongkong and Shanghai Banking Corp Ltd v Rasmachayana Sulistyo alias Chang Whe Ming

• Jurisdiction: Singapore
• Judge: Joyce Low Wei Lin AR
• Judgment Date: 04 October 2004
• Neutral Citation: [2004] SGHC 87
• Published date: 05 October 2004
• Court: High Court (Singapore)
• Plaintiff Counsel: Andrew Chan and Desmond Ho (Allen and Gledhill)
• Defendant Counsel: Rodney Keong (Rodyk and Davidson)

4 October 2004

AR Joyce Low:

1 The petitioning creditor, Hongkong and Shanghai Banking Corporation Limited (‘HSBC’) filed a bankruptcy petition against Rasmachayana Sulistyo (‘Sulistyo’). As of 9 January 2004, Sulistyo was indebted to HSBC in the aggregate sums of US$58,064,279.35 and $27,820.08 pursuant to a judgment against him for failure to honour a personal guarantee with HSBC. Sulistyo opposed the bankruptcy petition on two grounds, ie that the statutory demand had not been properly served on him and that the court did not have jurisdiction to make the bankruptcy order. I rejected both these objections and made a bankruptcy order against Sulistyo for the reasons set out below.

2 I considered Sulistyo’s objections to the service of the statutory demand first. Rule 96 of the Bankruptcy Rules (‘the Rules’) governs the service of a statutory demand. Rule 96(1) requires the creditor to take all reasonable steps to bring the demand to the debtor’s attention. Pursuant to r 96(3), where the creditor is not able to effect personal service, he may effect substituted service by such other means as would be most effective in bringing the demand to the notice of the debtor. Rule 96(6) provides that a creditor shall not resort to substituted service unless he has taken all steps that would suffice to justify the court making an order for substituted service of a bankruptcy petition and the mode of substituted service would have been such that the court would have ordered in the circumstances. Rule 96(4) states that substituted service may be effected in the following manner:

(a) by posting the statutory demand at the door or some other conspicuous part of the last known place of residence or business of the debtor or both;

(b) by forwarding the statutory demand to the debtor by prepaid registered post to the last known place of residence, business or employment of the debtor;

(c) where the creditor is unable to effect substituted service in accordance with sub-paragraph (a) or (b) by reason that he has no knowledge of the last known place of residence, business or employment of the debtor, by advertisement of the statutory demand in one or more local newspapers…

(d) such other mode which the court would have ordered in an application for substituted service of a petition in the circumstances.

3 On the facts of the present case, according to the affidavit of service filed by HSBC’s process server, three different modes of service were employed to serve the statutory demand. The process server left a copy of the demand at the address of Sulistyo’s forwarding agent. HSBC took out an advertisement of the notice of the statutory demand in “The Straits Times”, an English newspaper circulating in Singapore. Finally, copies of the statutory demand were left at the residential addresses last known to HSBC, ie at 331 River Valley Road #13-02 and 61 Meyer Road #15-04. Counsel for Sulistyo, Mr Rodney Keong submitted that there was no proper service of the statutory demand as none of the three methods of service complied with r 96 of the Rules.

4 Mr Keong submitted that service by leaving a copy of the demand at the address of Sulistyo’s forwarding agent did not amount to good service, although the parties agreed to this method of service. This is because the Rules do not provide for service of a statutory demand by agreement. He argued that although O 62 r 3(2) of the Rules of Court provides that personal service of documents may be effected in a manner as may be agreed between the parties, the provision is not applicable because O 1 r 2(4) excludes the application of the Rules of Court to bankruptcy proceedings.

5 I disagree with Mr Keong that O 62 r 3 is irrelevant to bankruptcy proceedings. Section 11 of the Bankruptcy Act reads “[i]n any matter of practice or procedure for which no specific provision has been made in the Act or the Bankruptcy Rules, the practice or procedure of the Supreme Court shall be followed and adopted as nearly as may be”. The Rules are silent as to how personal service may be effected and whether this includes service in a manner as may be agreed between the parties. Therefore, by s 11 of the Bankruptcy Act (‘the Act’), the practice of the Supreme Court in this regard that is embodied in O 62 r 3 of the Rules of Court should be followed. In any case, O 1 r 2(4) is qualified by O 1 r 2(5) of the Rules of Court which provides that O 1 r 2(4) shall not be taken as affecting any provision by which the Rules of Court are applied. Applying O 1 r 2(5) to the instant case, O 1 r 2(4) does not affect s 11 of the Act pursuant to which O 62 r 3 of the Rules of Court may be applied to bankruptcy proceedings. In addition, r 96(1) of the Rules requires reasonable steps to be taken to effect service and service by the very method that parties have mutually agreed to must be considered such reasonable steps. Consequently, I am of the opinion that leaving the statutory demand at...