Wong Kwei Cheong v ABN-AMRO Bank NV
Jurisdiction | Singapore |
Court | High Court (Singapore) |
Judge | S Rajendran J |
Judgment Date | 22 May 2002 |
Neutral Citation | [2002] SGHC 111 |
Citation | [2002] SGHC 111 |
Subject Matter | Advertising 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 Counsel | Chua Eu Jin and Melissa Lee (Rajah & Tann) |
Published date | 19 September 2003 |
Date | 22 May 2002 |
Docket Number | Originating Summons Bankruptcy (Registrar's Appeal No 600019 of 2002) |
Defendant Counsel | George 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 readBANKRUPTCY 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...
To continue reading
Request your trial-
Chimbusco International Petroleum (Singapore) Pte Ltd v Jalalludin bin Abdullah and other matters
...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
...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......
-
Sia Leng Yuen also known as Xie Ning Yun v Ko Chun Shun Johnson (No 2)
...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) Pr......
-
Wee Soon Kim Anthony v Lim Chor Pee and Another
...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 ......
-
Insolvency Law
...Court reaffirmed the well-established principle (Re Rasmachayana Sulistyo (above, para 17.15) and Wong Kwei Cheong v ABN-AMRO Bank NV[2002] 2 SLR(R) 31) that a statutory demand is validly served when served on the debtor's lawyers who had given prior confirmation that they were authorised t......
-
Insolvency Law
...it must be pointed out that the earlier decision of the same learned judge in Wong Kwei Cheong v ABN AMRO Bank NV (‘Wong Kwei Cheong’)[2002] 3 SLR 594 was not adequately discussed by the judge himself or the assistant registrar. In that case, the creditor had attempted to effect personal se......
-
Insolvency Law
...dated 31.10.2002) dealing with the grant of judicial management orders, S Rajendran J”s decision in Wong Kwei Cheong v ABN AMRO Bank NV[2002] 3 SLR 594 on the service and setting aside of bankruptcy statutory demands, and Lai Kew Chai J”s decision in Roberto Building Material Pte Ltd v Over......
-
Insolvency Law
...to go to trial. In this regard, the learned judge also followed the judicial approach espoused in Wong Kwei Cheong v ABN-AMRO Bank NV[2002]2 SLR(R) 31 that the court should not conduct a full hearing of the dispute and adjudicate on the merits. All the debtor needs to show is that his dispu......