Wei Fengpin v Raymond Low Tuck Loong

• Jurisdiction: Singapore
• Judge: Steven Chong JCA
• Judgment Date: 07 December 2021
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Summons No 27 of 2021

Wei Fengpin

and

Raymond Low Tuck Loong and others

[2021] SGCA 115

Steven Chong JCA

Originating Summons No 27 of 2021

Court of Appeal

Courts and Jurisdiction — Judges — Transfer of cases — Applicant seeking to transfer appeal from Appellate Division of High Court to be heard by Court of Appeal — Whether application for transfer should be granted — Section 29D(1)(a) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Courts and Jurisdiction — Judges — Transfer of cases — Applicant seeking to transfer appeal from Appellate Division of High Court to be heard by Court of Appeal — Whether Court of Appeal should transfer appeal on its own motion — Order 56A r 12(2)(a) and O 56A r 12(2)(c) Rules of Court (2014 Rev Ed)

Held, transferring the Appeal on the Court of Appeal's own motion:

(1) The statutory scheme for the transfer of appeals between the Court of Appeal and the AD. The first step under the statutory scheme governing the allocation of appeals between the Court of Appeal and the AD would be to ascertain the applicable version of the SCJA and the ROC. If the new provisions in the SCJA and ROC applied to the case, the second step would be to ascertain if the case fell within any of the prescribed grounds in the Sixth Schedule or if any other written law provided that the appeal was to be heard by the Court of Appeal pursuant to s 29C(2) of the SCJA. If the case did fall within any of the prescribed grounds, the appeal and other related applications should be made to the Court of Appeal. Otherwise, the appeal and other related applications should be made to the AD: at [21] and [22].

(2) Despite the default allocation pursuant to the two steps above, a transfer of the appeal could be effected pursuant to s 29D (for a transfer from the AD to the Court of Appeal) and s 29E (for a transfer from the Court of Appeal to the AD) of the SCJA. In particular, the Court of Appeal could transfer an appeal from the AD to the Court of Appeal on its own motion under s 29D(2)(a) of the SCJA. Although the Court of Appeal had a wide discretion to transfer an appeal on its own motion, the exercise of the discretion should be made on principled grounds and the court had to have regard to matters prescribed by the ROC: at [23] to [25].

(3) The proper basis for the Application. Order 56A r 12(3) relied on by Wei was not the relevant provision governing this Application. Instead, the relevant provisions were O 56A r 12(2)(a) and/or O 56A r 12(2)(c) of the ROC, which were grounds for transferring an appeal from the AD to the Court of Appeal on the Court of Appeal's own motion. Order 56A r 12(2)(a) applied where the appeal was not made to the AD in accordance with s 29C of the SCJA (ie, the case from which the appeal arose fell within the Sixth Schedule), while O 56A r 12(2)(c) of the ROC applied where one or more of the legal issues in the appeal engaged one or more of the matters set out in the Sixth Schedule. There was no necessity to engage the requirements under O 56A r 12(3) of the ROC if the transfer was made under O 56A r 12(2)(a) or O 56A r 12(2)(c) of the ROC, as the Sixth Schedule was formulated with the presumption that the grounds under O 56A r 12(3) of the ROC were deemed to be satisfied when a case fell within or engaged one or more of the matters set out in the Sixth Schedule: at [27] and [39] to [42].

(4) The distinction drawn in para 1(d) of the Sixth Schedule. A distinction was drawn between “case” and “issue” in para 1(d) of the Sixth Schedule. An appeal could therefore fall within para 1(d) of the Sixth Schedule where it arose from a case relating to insolvency, even if the appeal did not raise any issue relating to the law of insolvency. It was deliberately worded in this manner to ensure that any appeal arising from a case relating to insolvency should by default be made to the Court of Appeal. The intention was to carve out specific categories or types of proceedings to be heard by the Court of Appeal: at [32].

(5) The characterisation of any case should not be limited to the time when the action was commenced as that approach would fail to have regard to material subsequent developments which might change the complexion of the case from when it first started: at [33].

(6) Applicability of O 56A r 12(2)(a) of the ROC. The case from which the Appeal arose started as a typical oppression action. But, by the time of the trial, the Company had been wound up. During the trial, the parties had to argue and lead evidence as to what led to the insolvency of the Company and how the insolvency would affect the remedy sought. The case before the High Court was therefore not a typical oppression action. Accordingly, the Appeal arose from a case that related to the insolvency of the Company and fell within para 1(d) of the Sixth Schedule: at [33], [34] and [42].

(7) Applicability of O 56A r 12(2)(c) of the ROC. Additionally, the key issues on appeal did not merely relate to oppression per se, but were issues uniquely arising from the insolvency of the Company. The issues in the Appeal therefore engaged matters set out in para 1(d) of the Sixth Schedule: at [35] and [42].

(8) For the purpose of deciding whether a transfer should be ordered on the Court of Appeal's own motion where the Appeal arose from a case relating to insolvency and/or where the issues engaged one or more of the matters set out in the Sixth Schedule (ie, under O 56A r 12(2)(a) and/or O 56A r 12(2)(c) of the ROC), the transfer should generally be ordered so long as the legal issues raised on appeal did not relate to issues of settled law: at [43].

[Observation: In a situation where the appeal concerned an issue as to whether a winding-up order (which by default fell within para 1(d) of the Sixth Schedule) should be set aside on account of grounds such as abuse of process or non-disclosure of material facts, which were strictly not issues relating to insolvency, such an appeal would nonetheless fall within para 1(d) of the Sixth Schedule to the SCJA because it would be an appeal which arose from a case relating to the insolvency of the company: at [32].]

Case(s) referred to

DyStar Global Holdings (Singapore) Pte Ltd v Kiri Industries Ltd [2018] 5 SLR 1 (refd)

Grace v Biagioli [2005] EWCA Civ 1222 (refd)

London School of Electronics Ltd, Re [1986] Ch 211 (refd)

Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd [2021] 2 SLR 440 (folld)

Via Servis Ltd Skala v Via Sevis Ltd, Re [2014] EWHC 3069 (Ch) (refd)

Wei Fengpin v Low Tuck Loong Raymond [2021] SGHC 90 (refd)

Facts

The applicant (“Wei”) and the first and second respondents (“Low” and “Sim” respectively) were equal shareholders of the third respondent (the “Company”). In March 2017, Wei commenced HC/S 238/2017 (“Suit 238”) against Low and Sim under s 216 of the Companies Act (Cap 50, 2006 Rev Ed) (“Companies Act”), claiming that they had acted in a manner that was unfair, oppressive or prejudicial to him. The primary remedy sought by Wei in Suit 238 was for Low and Sim to buy out his shares in the Company.

Suit 238 was scheduled for trial in September 2020. In May 2020, Low and Sim applied to wind up the Company on the basis that the Company was insolvent and unable to pay its debts. The Company was then wound up in June 2020. Thereafter, the trial of Suit 238 took place. The High Court judge (“the Judge”) found that Low and Sim had conducted the affairs of the Company in a manner that was oppressive to Wei. However, the Judge refused to make an order for Low and Sim to buy out Wei's shares mainly for reasons related to the insolvency of the Company.

In May 2021, Wei appealed against the Judge's decision in Suit 238 (“the Appeal”). He initially took the position that the Sixth Schedule to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (the “SCJA”) did not apply and therefore made the Appeal to the Appellate Division of the High Court (the “AD”). However, in September 2021, Wei adopted a different position. Wei indicated that it would be more appropriate for the Court of Appeal to hear the Appeal and that para 1(d) of the Sixth Schedule to the SCJA applied. Paragraph 1(d) of the Sixth Schedule provided that any appeal that arose from “a case relating to the insolvency … of a corporation … (even if the appeal does not raise any issue relating to the law concerning the insolvency … of a corporation …)” had to be made to the Court of Appeal. Wei also indicated that he intended to apply for a transfer of the Appeal from the AD to the Court of Appeal.

In October 2021, Wei made this application for the transfer of the Appeal from the AD to the Court of Appeal, under ss 29D(1)(a) and 29D(2)(c)(ii) of the SCJA, read with O 56A r 12(1) of the Rules of Court (2014 Rev Ed) (“ROC”), on the basis that it would be more appropriate for the Court of Appeal to hear the Appeal, notwithstanding that it had been made to the AD (“the Application”). Wei also relied on O 56A r 12(3) of the ROC, which contained the matters that the Court of Appeal could have regard to in deciding whether it would be more appropriate for the Court of Appeal to hear an appeal that had been made to the AD.

Legislation referred to

Companies Act (Cap 50, 2006 Rev Ed) s 216

Rules of Court (2014 Rev Ed) O 56A r 12(2)(a), O 56A r 12(2)(c), O 56A r 12(3) (consd);

O 56A r 12, O 56A r 12(1), O 56A r 12(2)(b), O 56A r 12(3)(a), O 56A r 12(3)(b), O 56A r 12(3)(c), O 56A r 12(3)(f), O 56A r 12(3)(g), O 56A r 12(4), O 56A r 12(5), O 57 r 10A(1)(c)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 29C(2), 29D, 29D(1)(a), 29D(2)(c)(ii), Sixth Schedule, Sixth Schedule para 1(d) (consd); ss 29C, 29C(1), 29D(2)(a), 29D(2)(c)(i), 29E, Sixth Schedule para 1(a)–Sixth Schedule para (1)(e)

Jimmy Yim Wing Kuen SC, Lee Soong Yan Kevin, Eunice Lau Guan TingandLim Joe Jee (Drew & Napier LLC) for the applicant;

Loo Choon Chiaw, Chia Foon Yeow, Tan Jinwen MarkandLim Jun Wei (Loo & Partners LLP) for the first and second...