Wong Kwei Cheong v ABN-AMRO Bank NV

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeS Rajendran J
Judgment Date22 May 2002
Neutral Citation[2002] SGHC 111
Citation[2002] SGHC 111
Subject MatterAdvertising notice of statutory demand in newspaper,Substituted service,Statutory demand,Whether disputes substantial,Insolvency Law,s 62(a)(i) Bankruptcy Act (Cap 20, 2000 Ed),Function of court when hearing application to set aside statutory demand,Bankruptcy,Improper service,Whether reasonable steps taken to bring statutory demand to debtor's notice,Whether creditor can rely on r 96(4)(c) of Bankruptcy Rules (Cap 20, R 1, 1996 Ed) to effect service,Whether court bound to dismiss defective statutory demand,rr 96(1), 96(4)(a), 96(4)(b) & 96(4)(c) Bankruptcy Rules (Cap 20, R 1, 1996 Ed),Creditor aware of debtor's last known place of residence,ss 62(a)(i) & 158(1) Bankruptcy Act (Cap 20, 2000 Ed),Whether statutory presumption of inability to pay arises,Non-compliance with r 96 of Bankruptcy Rules (Cap 20, R 1, 1996 Ed),r 98(2)(b) Bankruptcy Rules (Cap 20, R 1, 1996 Ed),Words and Phrases,Setting aside,rr 96, 108(6) & 127(c) Bankruptcy Rules (Cap 20, R 1, 1996 Ed),'In the prescribed manner',Disputes as to statutory demand,Whether non-compliance mere irregularity or formal defect curable under s 158(1) of Bankruptcy Act (Cap 20, 2000 Ed)
Plaintiff CounselChua Eu Jin and Melissa Lee (Rajah & Tann)
Published date19 September 2003
Date22 May 2002
Docket NumberOriginating Summons Bankruptcy (Registrar's Appeal No 600019 of 2002)
Defendant CounselGeorge Lim and Kalyani Rajendran (Wee Tay & Lim)

Judgment

GROUNDS OF DECISION

1. On 20 July 2001, ABN-AMRO Bank N.V. ("the Bank") issued a Statutory Demand under s 62 of the Bankruptcy Act 1995 against Wong Kwei Cheong ("Wong") for certain sums of monies allegedly due to the Bank from Wong under a personal guarantee executed by Wong in respect of banking facilities extended by the Bank to a company called "Dtron Singapore Pte Ltd" ("Dtron"). The Bank did not serve the Statutory Demand personally on Wong. Instead, the Bank advertised a notice of that demand in the Straits Times of 23 July 2001. The notice read

    BANKRUPTCY ACT
    (CHAPTER 20)
    BANKRUPTCY RULES

    NOTICE OF ADVERTISEMENT OF
    STATUTORY DEMAND

    To: WONG KWEI CHEONG
    (NRIC No. 0226068/I)
    Address: Lately of 16A Dunlop Street
    Singapore 209345.

    TAKE NOTICE that a Statutory Demand has been issued by the Creditor, ABN-AMRO Bank N.V. (RC No. F00005N) of 63 Chulia Street, Singapore 049514.

    The Creditor demands payment of US$807,600.16 being the total amount due as at 30th June 2001 from the Debtor pursuant to the Personal Guarantee dated 23rd September 1996.

    The Statutory Demand is an important document and is deemed to have been served on you on the date of the first appearance of this advertisement. You must deal with this demand within 21 days of the service on you or you could be made bankrupt and your property and goods taken away from you. If you are in any doubt about your petition, you should seek advice immediately from a solicitor or, if you qualify for Legal Aid, from the Director of Legal Aid.

    The Statutory Demand can be obtained or is available for inspection and collection from:

    Name: Mr Chua Eu Jin / Ms Melissa Lee
    Address: No. 4 Battery Road, #15-01
    Bank of China Building,
    Singapore 049908.

    You have only 21 days from the date of the first appearance of this advertisement before the Creditor may present a Bankruptcy Petition.

    Dated this 23rd day of July 2001.
    MESSRS RAJAH & TANN
    SOLICITORS FOR THE CREDITOR.

2. Wong, on 14 January 2002, applied, under rr 97(1) and 97(3) of the Bankruptcy Rules (by way of OSB No. 600005/02) to have the Statutory Demand set aside and, as Wong was out of time within which to make this application, for an extension of the time within which to do. That originating summons was heard by the Assistant Registrar Mrs Wang Wei Chi ("AR") on 28 February 2002. The AR granted the extension of time. The AR also found that there were "genuine triable issues" and set aside the Statutory Demand. Her power to set aside the Statutory Demand was derived from r 98(2)(b) of the Bankruptcy Rules which reads as follows:

"The court shall set aside the Statutory Demand if –

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

The Bank, dissatisfied with the AR’s decision to set aside the Statutory Demand, appealed against that ruling. I upheld the AR’s decision. Against that ruling the Bank again appealed and I now give my grounds.

3. On a plain reading of r 98(2)(b) of the Bankruptcy Rules, if the debtor disputes the claim in the Statutory Demand and that dispute appears to the court to be substantial, the bankruptcy court is obliged to set aside the Statutory Demand. It is not the function of the bankruptcy court, at the hearing of an application to set aside a Statutory Demand, to conduct a full hearing of the dispute and adjudicate on the merits of the creditor’s claim. That would be the function of the court in its non-bankruptcy jurisdiction should the creditor institute proceedings against the debtor to obtain judgment on the claim contained in the Statutory Demand.

4. The personal guarantee in favour of the Bank that Wong had executed was an "all monies" guarantee. Mr George Lim, who appeared for Wong, submitted that although Wong had executed an "all monies" guarantee, the intention of the parties was for Wong to execute a guarantee under which he would be liable for only 35% of the debts of Dtron. To the extent that the personal guarantee purported to be an "all monies" guarantee, it did not reflect what the parties had in fact intended. Mr Lim submitted that until that mistake in the personal guarantee was...

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16 cases
  • Chimbusco International Petroleum (Singapore) Pte Ltd v Jalalludin bin Abdullah and other matters
    • Singapore
    • High Court (Singapore)
    • 28 February 2013
    ...to set aside the statutory demand and dismiss the bankruptcy application. The guarantors rely on Wong Kwei Cheong v ABN-AMRO Bank NV [2002] 2 SLR(R) 31 (“Wong Kwei Cheong”). Rule 127 of the Bankruptcy Rules provides as follows: Dismissal of bankruptcy application 127. The court shall dismis......
  • United Overseas Bank Ltd v Ishak bin Ismail
    • Singapore
    • High Court (Singapore)
    • 7 August 2003
    ...modes of service. 7 In the present case, counsel for the petitioning creditor relied on the case of Wong Kwei Cheong v ABN-Amro Bank NV [2002] 3 SLR 594, a decision by me also relating to substituted service of a statutory demand. In the court below, the Assistant Registrar distinguished Wo......
  • Wee Soon Kim Anthony v Lim Chor Pee and Another
    • Singapore
    • High Court (Singapore)
    • 30 August 2005
    ...demands, to adjudicate upon the merits of the respondents’ counterclaim, set-off or cross demand: Wong Kwei Cheong v ABN-AMRO Bank NV [2002] 3 SLR 594. Indeed, this court need only satisfy itself that the respondents appear to have a valid counterclaim, set-off or cross demand amounting to ......
  • Sia Leng Yuen also known as Xie Ning Yun v Ko Chun Shun Johnson (No 2)
    • Singapore
    • High Court (Singapore)
    • 30 August 2003
    ...M'Cabe (Pauper) v The Governor and Company of the Bank of Ireland (1889) 14 App Cas 413 (refd) Wong Kwei Cheong v ABN-AMRO Bank NV [2002] 2 SLR (R) 31; [2002] 3 SLR 594 (folld) Bankruptcy Act (Cap 20, 2000 Rev Ed) s 62 Bankruptcy Rules (Cap 20, R 1, 1996 Rev Ed) rr 94 (5), 96 (6), 98 (2) Ci......
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