KOREA ASSET MANAGEMENT CORP V DAEWOO SINGAPORE PTE LTD (IN LIQUIDATION) (2004) SGHC 25

paginator.
book Page 671 Tuesday, November 3, 2009 7:03 AM
[2004] 1 SLR(R) SINGAPORE LAW REPORTS (REISSUE) 671
Korea Asset Management Corp

v
Daewoo Singapore Pte Ltd (in liquidation)
[2004] SGHC 25
High Court — Originating Summons No 1632 of 2003

V K Rajah JC
14 January; 11 February 2004
Insolvency Law — Winding up — Liquidator — Role and duties of liquidator
Insolvency Law — Winding up — Winding up order — Principles to be considered by
court when granting leave for compulsory winding up where company undergoing
creditors’ voluntary winding up.
Facts
This was an application by Korea Asset Management Corp (the “applicants”) for
leave to initiate compulsory winding up proceedings of Daewoo Singapore Pte
Ltd (the “company”) while the company was already in the process of a
voluntary winding up. The applicants were the majority creditors in the
company.
On 26 May 2003, the company’s directors initiated a creditors’ voluntary
winding up. On the same day, without prior consultation with creditors, the
company’s directors appointed three provisional liquidators. A notice was issued
to convene a shareholders’ and a creditors’ meeting on 23 June 2003. The
applicants requested a postponement of the meeting, as they were still evaluating
their options. The liquidators did not object to the postponement. The
applicants also wrote to the liquidators regarding perceived conflicts of interest.
The shareholders’ meeting was conducted on 23 June 2003 and the company’s
sole shareholder resolved for the company to be wound up, nominating the
provisional liquidators for the position of liquidators. The liquidators held the
creditors’ meeting on the same day despite having earlier agreed to the
applicant’s request for postponement. At the creditors’ meeting, the chairman
declared that the meeting would lapse, as it was not convened at a time and place
convenient to the majority in value of the creditors. No resolutions were voted
on during this lapsed meeting. The applicants then became concerned and
viewed the position taken by the company, the liquidators and their advisors as
an attempt to dilute and undermine their rights. Additionally, the applicants had
engaged a Korean based accounting firm (“Anjin”) to conduct a due diligence
exercise on the company. In the report prepared by Anjin (“Anjin’s report”),
Anjin opined that the company’s insolvency appeared to be inextricably linked
to its relationship with related entities. Anjin’s report also indicated that debts
had been incurred in dubious circumstances which hinted at mismanagement,
and suggested fraud on the part of the directors and officers of the company.
The applicants then sought leave to initiate compulsory winding up proceedings,
despite the fact that the company was already in the process of being voluntarily
paginator.book Page 672 Tuesday, November 3, 2009 7:03 AM
672 SINGAPORE LAW REPORTS (REISSUE) [2004] 1 SLR(R)
wound up. In their application, they voiced their concerns over the state of the
company’s affairs and pointed to the need for an enquiry into the reasons for the
company’s insolvency and the apparent lack of independence on the part of the
liquidators. The company and the liquidators objected to the application. In
particular, the company was concerned about the additional costs incurred
through the possible appointment of new liquidators should the compulsory
winding up proceedings be initiated.
Held, allowing the application:

(1) While convenience and the saving of costs were factors that would be
taken into consideration, fair play and commercial morality were of paramount
importance. In the circumstances, the company’s contention that additional
costs would be incurred by the initiation of winding up proceedings was
unsupported. Further, in this case, a court appointed liquidator in a compulsory
liquidation, as an officer of the court, might have better served the interests of
the creditors: at [42], [56] and [60].
(2) In cases where a voluntary winding up had already commenced, the court
would carefully scrutinise any application for a compulsory winding up to
ensure that a party was not seeking to avail itself of a benefit that would not
otherwise be available to it through the conventional winding up procedure.
Another consideration would be whether such an application, if successful,
would prejudice the claims of other legitimate creditors in a manner that could
negate the statutory scheme of pari passu treatment for all unsecured creditors:
at [48].
(3) If the claim or right that an applicant was pursuing could be adequately
dealt with within the insolvency regime, the court would not be inclined to grant
leave to proceed. A good reason for refusing leave would exist in cases where the
company’s resources were threadbare and considerable costs would be incurred
if leave were granted: at [50].
(4) In cases where there had been an allegation of impropriety in relation to
the cause of a company’s insolvency, the liquidator’s role took on the added
dimension of an investigator, on top of his administrative function as a collector
of assets. Such a liquidator should not be perceived as having any relationship
with the company’s officers or shareholders. In such a case, the public interest
element may sometimes tip the scales in favour of allowing a compulsory
winding up: at [54].
(5) The Anjin report necessitated further enquiry into the circumstances
leading to the demise of the company. In this respect, the liquidators had not
given sufficient responses explaining away the intricate transactions between the
company and related entities: at [61].
(6) Liquidators should always view matters objectively. When concerns are
raised and liquidators are challenged on an issue involving an existing or
potential conflict, they should pause and carefully review their position
dispassionately. It was surprising that the liquidators strenuously opposed the
application. The liquidators should not have been involved in this issue and
doubt had been cast on their objectivity: at [70] and [72].
Korea Asset Management Corp v

[2004] 1 SLR(R) Daewoo Singapore Pte Ltd 673
[Observation: The main focus of a company and its liquidators once winding up
had commenced should be to prevent the fragmentation of its assets and to
ensure that the interests of its creditors were protected to the fullest extent. In
other words, returns to legitimate creditors should be maximised; the process of
collecting assets and returning them to legitimate creditors should be attended
to with all practicable speed. Unnecessary costs should not be incurred;
liquidators should act in the collective interests of all legitimate stakeholders and
not with a view to enhancing their own self-interests or fees: at [36].
It stands to reason that those who had the greatest financial interest in the
assets of the company should usually be allowed the biggest say. Corporate
democracy is seldom a quantitative exercise: at [68].]
Case(s) referred to
Aro Co Ltd, In re [1980] Ch 196 (folld)
Berkeley Securities (Property) Ltd, Re [1980] 3 All ER 513 (refd)
Caltong (Australia) Pty Ltd v Tong Tien See Construction Pte Ltd [2002] 2
SLR(R) 94; [2002] 3 SLR 241 (folld)
David Lloyd & Co, In re (1877) 6 Ch D 339 (folld)
Inside Sport Ltd (in liquidation), Re [2000] 1 BCLC 302 (folld)
Islington Metal and Plating Works Ltd, Re [1984] 1 WLR 14; [1983] 3 All ER 218
(refd)
J Burrows (Leeds) Ltd (in liquidation), In re [1992] 1 WLR 1177 (refd)
Lowerstoft Traffic Services Ltd, Re [1986] BCLC 81 (folld)
MCH Services Ltd, Re [1987] BCLC 535 (folld)
Meehan v Stockmans Australian Cafe (Holdings) Pty Ltd (1996) 22 ACSR 123
(folld)
Palmer Marine Surveys Ltd, Re [1986] BCLC 106 (folld)
Pinkroccade Educational Services Pte Ltd, Re [2002] 2 SLR(R) 789; [2002] 4 SLR
867 (distd)
Pinstripe Farming Co Ltd, Re [1996] 2 BCLC 295 (folld)
R v Dickson [1992] 94 Cr App R 7 (refd)
R A Ringwood Pty Ltd v Lower [1968] SASR 454 (refd)
Roselmar Properties Ltd (No 2), Re (1986) 2 BCC 99,157 (folld)
Souster v Carman Construction Co Ltd [2000] BPIR 371 (folld)
Southard & Co Ltd, In re [1979] 1 WLR 1198 (folld)
The Seremban General Agency, Ltd, In re (1922) 3 FMSLR 3 (refd)
Timberland Ltd, Re [1976] VR 790 (refd)
Zirceram Ltd (in liquidation), Re [2000] 1 BCLC 751 (folld)
Legislation referred to
Companies Act (Cap 50, 1994 Rev Ed) ss 11(2)(b), 227C(c), 253(2)(d), 262(3),
291(1), 296(7), 296(8), 299(2), 302, 325(1), 325(2)
Companies (Winding Up) Rules (Cap 50, R 1, 1990 Rev Ed) rr 114(4), 117(4),
118(3), 119
Third Parties (Rights Against Insurers) Act (Cap 395, 1994 Rev Ed)
Andre Yeap SC and Tan Teck Wang (Rajah & Tann) for the applicants;
Suresh Nair and Foo Hsiang Ming (Allen & Gledhill) for the respondents.
16 February 2004
V K Rajah JC:
1 This application raises an interesting insolvency issue on which there

is no direct Singapore authority: In what circumstances will the court grant
leave for the initiation of compulsory winding up proceedings when the
company in question is already in the process of being voluntarily wound
up? This is not an obscure point of law divorced from commercial reality.
Often, for a variety of reasons, the directors and/or shareholders of a
company seek to voluntarily wind up the company if they are of the view
that the company cannot carry on as a going business. The reasons for this
are usually wholly justified: one instance may be when creditors are
reluctant to take any action; another when substantial costs and time can be
saved by the voluntary route. There are, however, instances when those
responsible for running a company may choose the voluntary liquidation
route, in order to “hijack” the liquidation process for reasons that may be
viewed as less than legitimate. The voluntary route is a particularly
tempting option when related entities of the company or its shareholders
are the majority or significant creditors of the company. Directors may also,
in certain situations, be averse to having an independent third party mount
an enquiry as to the circumstances that precipitated the insolvency of the
company. If the directors and management have been involved in corporate
shenanigans, it can be expected that they will strenuously take steps to keep
out unwelcome prying eyes. In such cases, independent minority creditors
may have a legitimate sense of grievance, if their interests are disregarded or
if they genuinely fear that the liquidation process may not be fairly
implemented. The independence of the liquidators in such situations is
often in issue. In a leading English authority, Re Palmer Marine Surveys Ltd
[1986] BCLC 106 at 111, Hoffmann J (as he then was) observed:
The public is frequently astonished by the ease with which
unsuccessful businessmen appear to be able to transfer the assets,
goodwill, premises and employees of an insolvent company to a
pristine entity with which they continue trading as before, leaving the
creditors unpaid. This may be the price which has to be paid for the
entrepreneurial incentives of limited liability. But in cases in which it
appears to have happened, thorough investigation is required.
Disappointed creditors are bound to view with cynicism any

investigation undertaken by a liquidator chosen by the very persons

whose conduct is under suspicion.
2 The present application is unusual in the sense that the applicants,

who want the company compulsorily wound up, are the undisputed
majority creditor. It is not disputed that at least 70% of the admitted
outstanding debt is due to them. Notwithstanding, the company has chosen
to insist on proceeding with voluntary winding up. It has asserted rather
implausibly, through its present solicitors, that it is concerned about the
additional costs incurred through the possible appointment of new
liquidators should compulsory winding up proceedings be initiated. Given
the events that have transpired to date, including the startling losses
incurred by the company, I was not impressed by this disingenuous
contention and readily allowed the application. While there has been no
appeal, certain interesting points have emerged in this application which
ought to be examined and explicated. I also think it is important to signal to
company management and liquidators alike that the court will vigilantly
strive to ensure that fair play and commercial morality prevail in all
insolvency matters that come to its attention.
3 The facts as set out by the applicants are not really in dispute, save for
the issue of the liquidators’ independence and consequently their ability to
effectively discharge their duties. The liquidators have in an affidavit taken
issue with this. The company did not file an affidavit. I have largely adopted
the facts stated in the applicants’ affidavits in mapping out the factual
matrix. For convenience, in these grounds of decision “the company”
means the respondent.
Factual matrix
4 The company had two main areas of business:
(a) The import and export of industrial, construction and

consumer products, materials and machinery; and
(b) Acting as a commission agent for the purpose of securing trade

and other financing through its bankers on behalf of customers and
other parties interested in purchasing or leasing equipment.
5 The company is currently wholly owned by Daewoo International

Corporation (“DI”). Prior to the restructuring of the Daewoo Group in
1999/2000, the company was wholly owned by the then main holding
company of the Daewoo Group, Daewoo Corporation (“DWC”).
6 PriceWaterhouseCoopers (“PWC”), two of whose partners are

currently the company’s liquidators, has an associated entity in the
Republic of Korea, Samil Accounting Corporation (“Samil”), which has

been involved in the restructuring of the Daewoo Group.
7 On 26 May 2003, the directors of the company filed a statutory

declaration pursuant to s 291(1) of the Companies Act (Cap 50, 1994 Rev
Ed) (“the Act”), stating that the company could not by reason of its
liabilities continue its business; thereby initiating a creditors’ voluntary
winding up. On the same day, without prior consultation with or notice to
the creditors, its directors appointed three partners from PWC, jointly and
severally, as its provisional liquidators (“the liquidators”).
8 By the statement of affairs filed by the company on 26 May 2003:
(a) The company has admitted that it is indebted to the applicants

for the sum of at least $288,063,900.59. The applicants are the single
largest creditor of the company by value and account for at least 71%
of the total debts of the company. The applicants have a statutory role,
under Korean law, to assist in the restructuring of Korean financial
institutions and corporations. In accordance with this remit, the
applicants had in 1999 bought up the debts of various Daewoo entities
globally.
(b) The estimated unsecured liabilities of the company amount to

$406,773,291.12, while the estimated realisable assets for the
unsecured creditors amount to only $4,342,602.12.
9 On 26 May 2003, the company issued a notice of meeting to the

shareholders and a notice of meeting to the creditors, setting in motion the
steps necessary to convene the shareholders’ and creditors’ meetings on
23 June 2003.
10 Sections 296(7) and 296(8) of the Act require the creditors’ meeting to
be held at a time and place convenient to the majority in value of the
creditors. On 17 June 2003, the applicants requested that the liquidators
postpone the creditors’ meeting on 23 June 2003 on the basis that they, the
applicants, were still evaluating their options. They also reminded the
liquidators that given their status as a Korean state entity, the decision-
making process could take some time.
11 The liquidators responded on 19 June 2003, stating that they would

not object to an adjournment of two weeks. On 20 June 2003, the applicants
wrote again to the liquidators and inter alia queried the liquidators about
certain perceived conflicts of interest.
12 On 23 June 2003, the shareholders’ meeting was held and the

company’s sole shareholder, DI, resolved for the company to be wound up,
nominating the liquidators for the position of liquidators.

13 The liquidators also proceeded to convene the creditors’ meeting on

23 June 2003, despite the applicants’ earlier objection that this was not
convenient to them. At the meeting, the chairman of the meeting, a
representative of the applicants, declared that this meeting would lapse as it
was not convened at a time and place convenient to the majority in value of
the creditors, as required by s 296(8) of the Act. No resolutions were voted
on during this “lapsed meeting”. Significantly, during this meeting an
important difference in views was aired in relation to voting rights and the
voting mechanism at a creditors’ meeting. The applicants took the position
that the appointment of the chairman of any such meeting would be
determined by the majority in value of the creditors. The company
expressed the view that the chairman should be appointed by a majority of
creditors in value and number. The liquidators’ position appears to be
identical to that of the company. The applicants became concerned. They
viewed the position taken by the company, the liquidators and their
advisors as an attempt to dilute and undermine their rights in a voluntary
creditors’ liquidation.
14 In response to the earlier queries from the applicants dated 20 June

2003, the liquidators in a letter dated 3 July 2003 stated that PWC had in
fact earlier undertaken work for the company. The letter furnished some
additional facts on the PWC and Samil relationship. PWC operated
independently of Samil and was a separate legal entity. Both PWC (the
Singapore entity) and Samil were individual member firms of the
worldwide PWC organisation. The liquidators also asserted:
(a) Samil, the PWC network firm in Korea, was currently the
auditor of DI (the sole shareholder of the company).
(b) Samil had been appointed to act in various advisory capacities:
(i) to carry out a due diligence review and workout plan for
DWC, Daewoo Telecom, Daewoo Car Sales, Daewoo Capital,
Diners Club and more than 30 foreign subsidiaries;
(ii) to advise on the sale of Daewoo Motor to Ford Motors;
(iii) to act as a lead financial advisor for the sale of the

Information and Communication Division of Daewoo Telecom,
Automobile Parts Division and certain divisions of Daewoo
Electronics;
(iv) to assist DWC with regard to its split into three

companies, DI, Daewoo Engineering and Construction
company Ltd and DWC (which occurred in 1999/2000);
(v) to review the business plan of Daewoo America Inc, which

is the US subsidiary of DI; and
(vi) to act as sellside advisor for various non-performing loan

(“NPL”) auction projects such as KAMCO NPL auction, Korea
Exchange Bank NPL auction, KDIC NPL deal manager and
development of NPL valuation model for KAMCO.
(c) PWC Singapore had previously undertaken the following works

with the company:
(i) providing advice on a possible scheme of arrangement

(January 2000); and
(ii) performing a limited financial due diligence of the

company in November 1999 for the responsibility of Samil in
connection with Samil’s due diligence review of DWC.
15 At this juncture, I should mention that the applicants had already

separately engaged in May/June 2003, Anjin, a Korean based accounting
firm, to conduct a due diligence exercise on the company. The Anjin report
was finalised only in July 2003, shortly after the directors of the company
had resolved to place it under a creditors’ voluntary liquidation.
16 The Anjin report stated that the company had written off or intended
to write off as bad debts the sum of $420,931,000 which comprised (a) trade
receivables of $208,899,000 due from related companies and (b) loans of
$212,032,000 made to related companies. The company’s insolvency
appeared, to Anjin, to be inextricably linked to its relationship to related
entities.
17 The Anjin report examined in detail these related company debts

exceeding $400m and concluded that they had been incurred in dubious
circumstances that not only hinted at mismanagement, but suggested fraud
on the part of the directors and officers of the company and/or its
shareholders.
18 On 4 August 2003, the solicitors for the company, M/s Allen &
Gledhill (“A&G”), wrote to the then solicitors for the applicants, M/s Andre
Yeap & Co (“AYC”), to allege , inter alia, that the applicants’ position in
relation to the first creditors’ meeting had “obstructed the efficient
discharge” of PWC’s duties as “liquidators”. This was apparently a veiled
reference to the applicants’ unwillingness to confirm the appointment of
the liquidators. The liquidators also wrote to the applicants, once again, on
4 August 2003 reiterating their independence from other PWC
partnerships globally. They maintained that they were not in a position of
conflict. They stressed that their solicitors had been trying to liaise with the
applicants’ solicitors to hold the creditors’ meeting, but to no avail.
19 On 7 August 2003, the solicitors for the applicants refuted this in a

brief response.

20 On 21 August 2003, the solicitors for the company, in a letter to the

applicants’ solicitors, reiterated that the liquidators viewed themselves as
the liquidators of the company and would seek the court’s directions in
respect of the discharge of their duties.
21 Immediately thereafter, on 22 August 2003, the liquidators made an

ex parte application, through the company’s solicitors, to the court for
orders that:
(a) a creditors’ meeting be held on 12 September 2003; and
(b) PWC be permitted to exercise all powers as liquidators of the

company.
It is pertinent to point out that s 296(8) of the Act states that the further
meeting shall be summoned by the company and not the liquidator.
22 That application was filed and argued by the company’s solicitors. It

appears from the correspondence exhibited in these proceedings that both
the company and the liquidators had at all material times used the same
solicitors.
23 Having obtained an ex parte order of court on 27 August 2003, the

liquidators issued a second notice of meeting to creditors on 3 September
2003 giving notice that the creditors’ meeting would be “reconvened” on
12 September 2003 (“the second creditors’ meeting”). However, neither the
applicants nor any of the other creditors were alerted to the fact that an
ex parte order of court conferring powers on the liquidators had been
obtained.
24 At the second creditors’ meeting, the chairman of the meeting, once

again a representative of the applicants, declared that the meeting had not
been convened at a date and time convenient to the applicants. The
creditors’ meeting again lapsed pursuant to s 296(8) of the Act. This was, as
explained by the applicants, partly due to the fact that the period from 10 to
12 September 2003 was a public holiday in Korea, as a result of which the
applicants did not have sufficient time to make a decision. The applicants’
representative also informed those present that the applicants felt it would
be more appropriate for the company to be wound up by the court, and that
the applicants would shortly initiate steps to commence the compulsory
winding up process. The following reasons were inter alia given:
(a) the applicants had carried out a due diligence exercise on the
company, the results of which had revealed that the company had
written off, or was intending to write off more than $400m in debts
from various related companies within the Daewoo Group;
(b) the liquidators of the company would have to look closely at the
merits of writing off or of seeking to write off such large related
company debts, the actual recoverability of such debts, and the role of
the directors and officers of the company and or other entities within
the Daewoo Group in relation to the incurring of these debts. In this
respect, the applicants strongly felt that a court appointed liquidator
as an officer of the court owing duties to the court, would benefit the
creditors as a whole;
(c) Samil, the PWC network firm in Korea, which forms part of the
PWC organisation, had done substantial work for the Daewoo Group
since 1999, including a major restructuring of DWC. The applicants
felt that appointing PWC partners to investigate the large related
company debts run up by other companies within the Daewoo Group
would in the circumstances be unseemly, if not inappropriate.
25 At the second creditors’ meeting, the liquidators reiterated and

further amplified their earlier responses pertaining to the relationship
between PWC and Samil. They emphasised again that there was no profit-
sharing between PWC Singapore and any other PWC organisation, and
that Samil was not a fully integrated member of the PWC organisation.
They were merely affiliates of an umbrella global organisation.
26 The applicants’ solicitors wrote to the company’s solicitors on

23 September 2003 reiterating that the applicants, as the majority in value
of the creditors, had an interest in all applications made by the liquidators
to court. The applicants stressed to the company’s solicitors that they
should be served with a copy of any application made to court. Only when
the applicants’ solicitors received the reply from the company’s solicitors
dated 13 October 2003 were the applicants actually provided with a copy of
the ex parte order of court obtained by PWC on 27 August 2003. The
applicants maintain they were kept in the dark about that application and
are aggrieved that they were not informed about it earlier. This has further
undermined their confidence in the liquidators.
27 On 16 October 2003, the solicitors for the applicants wrote to the

solicitors for the company reserving their clients’ rights to take issue with
the events that had transpired.
28 Soon after this, on 14 November 2003, the applicants initiated an

application for leave under s 299(2) of the Act to file and proceed with a
petition to wind up the company. The applicants have also deposed that “a
court winding up is necessary to ensure that there will be a liquidation
process untramelled by any doubts, so that the independent creditors of the
company would not be left with a legitimate sense of grievance”.

29 The liquidators in a response affidavit stated that there was “no reason
to disrupt the Creditors’ Voluntary Liquidation”; that they were fully
independent and had been performing their duties in an impartial manner.
In their view there were “many reasons why the company should not be
placed in Compulsory Liquidation with the appointment of new
liquidators” [emphasis added]. They insisted that Samil had absolutely no
control or influence over the manner in which they as liquidators would
approach the liquidation; they maintained that although Samil and PWC
Singapore were individual member firms of the worldwide PWC
organisation, they were both independently run. They referred to certain
discrepancies as highlighted in the Anjin Report and stressed that they were
prepared to take action against any party involved in company
wrongdoings. Placing the company in compulsory liquidation would, in the
liquidators’ view, be highly disruptive. Time would be lost and costs wasted.
They had now acquired a unique knowledge of the company and its
workings. The applicants could also arrange for the appointment of a
committee of inspection to oversee the liquidation process or nominate a
liquidator of their choice at a future meeting of creditors. The liquidators
emphatically and repeatedly asserted that the appointment of new
liquidators at this juncture would be disruptive and strenuously opposed
the granting of leave to commence compulsory winding up proceedings.
They also reserved the right to raise these points again and to expand upon
them in the event that a winding up petition “comes to be heard”.
30 The liquidators’ affidavit was filed by the company’s solicitors, who,

as noted earlier, have also rather anomalously been engaged to represent
the liquidators. At the hearing of this particular application, however, the
solicitors stated they were appearing solely for the company.
31 Having set out the facts, I will now examine the statutory matrix.
Statutory matrix
32 Section 299(2) of the Act stipulates:

After the commencement of the winding up no action or proceeding
shall be proceeded with or commenced against the company except by
leave of the Court and subject to such terms as the Court imposes.
[emphasis added]
33 Section 262(3) of the Act, which applies to compulsory winding up, is

in pari materia with s 299(2). It reads:
When a winding up order has been made or provisional liquidator has
been appointed, no action or proceeding shall be proceeded with or
commenced against the company except —
(a) by leave of the Court; and

(b) in accordance with such terms as the Court imposes.
[emphasis added]
34 The statutory scheme for judicial management has a similar statutory

impediment which takes effect upon the presentation of a petition for a
judicial management and ceases upon the making of such an order or the
dismissal of the petition, as the case may be. Section 227C(c) of the Act
which is the relevant provision mandates:
[N]o other proceedings and no execution or other legal process shall be
commenced or continued and no distress may be levied against the
company or its property except with leave of the Court and subject to
such terms as the Court may impose. [emphasis added]
35 It is germane to observe that the bankruptcy regime also creates

similar fetters restraining any steps from being taken in any action or
proceedings once bankruptcy has commenced. This mandatory
requirement for leave is a consistent and integral feature of our insolvency
scheme upon the initiation of any insolvency process, and must be both
understood and observed, when applicable.
36 The rationale for these provisions is axiomatic: it is to prevent the

company from being further burdened by expenses incurred in defending
unnecessary litigation. The main focus of a company and its liquidators
once winding up has commenced should be to prevent the fragmentation of
its assets and to ensure that the interests of its creditors are protected to the
fullest extent. In other words, returns to legitimate creditors should be
maximised; the process of collecting assets and returning them to legitimate
creditors should be attended to with all practicable speed. Unnecessary
costs should not be incurred; liquidators should act in the collective
interests of all legitimate stakeholders and not with a view to enhancing
their own self-interests or fees.
37 This statutory ring-fencing of the company also acts as a strong

disincentive to creditors inclined to scramble to the judgment finishing line,
in the often mistaken belief that their priority will be enhanced. In
examining the purport of similar provisions in the Bankruptcy Act (Cap 20,
2000 Rev Ed), the Court of Appeal in Caltong (Australia) Pty Ltd v Tong
Tien See Construction Pte Ltd [2002] 2 SLR(R) 94 at [51], succinctly stated:
This court had in Overseas Union Bank v Lew Keh Lam [1998] 3
SLR(R) 219 stated that the purpose of s 76(1)(c)(ii) was to prevent the
[liquidators’] or administrator’s task from being made more difficult
due to a scramble among creditors in taking action or obtaining
decrees against the debtor or his assets. The requirement to obtain
leave is to ensure that the court could guard against any inequity on
account of such a scramble. …

38 Reference should also be made to s 253(2)(d) of the Act:

[T]he Court shall not, where a company is being wound up voluntarily,
make a winding up order unless it is satisfied that the voluntary
winding up cannot be continued with due regard to the interests of the
creditors or contributories. [emphasis added]
39 This provision is also cast in broad and generous terms. “Due regard”
for the creditors and contributories confers on the court a broad discretion
to consider what will best serve those having a genuine vested interest in the
winding up of the company. The contributories’ interests will obviously be
of little consequence if the creditors’ prior claims cannot be fully satisfied.
The reference to creditors or contributories is in the disjunctive. It is
however plausible that in some unusual cases, regard should be given to
both their interests, particularly if there is a likelihood of a potential surplus
of assets. The views of the majority creditors will be a very significant factor,
though not invariably conclusive. In the final analysis, it cannot be gainsaid
that the creditors are effectively funding the liquidation process. In
instances where the majority creditors, whether in value or in number, are
related to the company, the courts will however be vigilant to ensure that
the views and rights of independent minority creditors are neither ignored
nor trampled upon. The minority creditors may in such cases insist that
transactions between related entities be closely scrutinised to ensure that
liabilities are properly visited upon those responsible and that no rights are
“inadvertently” missed. This approach is aptly summarised by
Templeman LJ in In re Southard & Co Ltd [1979] 1 WLR 1198 at 1211:
[W]here the choice before the court is between a compulsory winding
up and a voluntary winding up, the judge, after hearing the reasons of
the majority and the reasons advanced by the minority, must decide
whether the interests of the unsecured creditors, and in particular the
interests of the independent opposing creditors, and thus the interests
of the public, are likely to be better served by making a compulsory
winding up order or not.
40 The law is also plainly settled (per Vinelott J in Re MCH Services Ltd
[1987] BCLC 535 at 538) that:
[I]t would be wrong to refuse a compulsory order [to wind up a
company] if the refusal would leave a majority of trade creditors with a
justified feeling of grievance, a feeling that is that they have been
unfairly deprived of the opportunity of ensuring that an independent
liquidator, that is a liquidator not chosen by the directors, is given the
charge of the winding up. [emphasis added]
41 I have referred to s 253(2)(d) at this juncture, because a court should

not grant leave to commence proceedings against a company in liquidation
if the process will ultimately prove to be futile when the matter is heard; in
other words, barren litigation should not be given a kiss of life. Some
authorities seem to indicate that the litmus test at the leave stage is whether
there is a serious or substantial issue to be tried; or whether there is, as it is
sometimes characterised, “a prima facie case”. To my mind, it is consistent
with the general taxonomy of the Act and “leave” principles that all the
applicant has to do at this stage is to satisfy the court that the application is
brought bona fide, underpinned by credible facts and is, even without a
serious investigation of the factual matrix, capable of succeeding if and
when heard. Though this is not a high hurdle to surmount, the evaluation
should in any event be made in the context of certain broad principles,
which I shall deal with shortly. It is vital to the integrity of insolvency
proceedings that genuine independent creditors can avail themselves of the
court’s assistance when they do indeed have legitimate grievances.
Applicable principles
42 What procedure ought a claimant against a company already in

liquidation follow? In the normal course of events, a proof of debt ought to
be submitted. Should the liquidator decide not to admit the proof, the
claimant is entitled to appeal to the court under the winding up rules. This
procedure however can be dispensed with if and when there is a good
reason to do so, the burden being on the applicant to justify the departure
from the scheme. If for instance the liquidator has shown a pre-disposition
not to accept the proof, or an indication that he will act in a manner that
may be either inimical to or inconsistent with the views of creditors, or if he
does not command the confidence of independent creditors, it makes good
sense to obviate the proof stage and let the court assume conduct of the
matter at an early stage. While convenience and the saving of costs are
factors that will be taken into consideration, fair play and commercial
morality are of paramount importance.
43 The words “action or proceeding” in s 299(2) and its sister provisions

are not defined in the Act. There is however a body of English and
Australian case law that appears to suggest the words ought to be broadly
interpreted to embrace all manner of civil proceedings, including the
prosecution of a counterclaim or the execution of a judgment. This is
consistent, in my view, with the raison d’etre of the provisions. The words
“action or proceeding” may also extend to cover criminal or other punitive
proceedings. The English courts have taken the wider view that criminal
prosecutions are embraced by the moratoriums: In re J Burrows (Leeds) Ltd
(in liquidation) [1992] 1 WLR 1177 and R v Dickson (1992) 94 Cr App R 7.
The Australian courts in earlier decisions had decided otherwise:
Re Timberland Ltd [1976] VR 790 and R A Ringwood Pty Ltd v Lower
[1968] SASR 454.
44 Although it is undisputed between the parties in this application that

leave was required to initiate the compulsory winding up process pursuant

to s 299(2), the company took the position at the hearing that the actual
granting of leave was not warranted on the existing facts. The liquidators,
though they did not appear through counsel at the hearing, had taken an
identical position in their affidavit, as indicated earlier.
45 Section 299(2) does not lay down any guidelines as to when leave to
proceed may be given. The courts have often referred to this general
discretion as an absolute discretion (see In re Aro Co Ltd [1980] Ch 196).
That said, the discretion has to be exercised rationally in the context of the
insolvency scheme. There has been no attempt to broadly catalogue the
relevant discretionary factors. McPherson, The Law of Company
Liquidation (4th Ed, 1999) states at 252:
Unfortunately, there has not been, relatively speaking, much
examination as to when leave will be granted.
46 In my view, certain broad guidelines can nonetheless be distilled from

the decided cases, and more importantly from the statutory scheme for
liquidation. It must be emphasised that while this broad categorisation of
discretionary factors covers a wide spectrum of situations, none of these
factors should be viewed alone as being decisive; nor should these
guidelines be construed as fetters on the absolute discretion conferred by
the statutory provision. I shall now outline these guidelines.
Timing
47 The timing as to when the application for leave is made could be a

relevant consideration. An application made late in the day when the
liquidator has completed a substantial amount of his work or when a
creditor has acquiesced in the liquidator’s discharge of his duties for a
substantial period is less likely to be persuasive. On the other hand, an early
application is by itself not decisive. The court may, in appropriate cases, be
inclined to allow the liquidators an opportunity to consider the matter and
evaluate the position the company should adopt vis-à-vis the application.
Nature of the claim
48 The court will carefully scrutinise every application to ensure that a

party is not seeking, through the application, to avail itself of a benefit that
would not otherwise be available to it through the conventional winding up
procedure ie filing of proof of debts. Another consideration would be
whether the claim, if prosecuted successfully, would prejudice the claims of
other legitimate creditors in a manner that could be viewed as negating the
statutory scheme of pari passu treatment for all unsecured creditors.
Further, where there is no likelihood of the claim being satisfied in any way,
leave ought not to be given. The court will be loath to lend its imprimatur to
sterile litigation.
49 If an applicant is merely attempting to claim from the company,

property which prima facie belongs to the applicant, then it stands to reason
that leave to proceed should be readily given (In re David Lloyd & Co (1877)
6 Ch D 339). This is recognition by the law that the rights of a secured
creditor or in rem rights should not be fettered as a matter of course by the
initiation of insolvency proceedings. A further example when leave will
usually be readily given relates to rights accrued through subrogation or
statutorily conferred rights on third parties. The Third Parties (Rights
Against Insurers) Act (Cap 395, 1994 Rev Ed) recognises that if third party
rights against a company have crystallised before winding up commences,
then the company’s rights against the insurers will be vested in the third
party.
Existing remedies
50 If the claim or right that an applicant is pursuing can be adequately or

conveniently dealt with within the insolvency regime, such as through the
filing of a proof of debt, the court will not be inclined to grant leave to
proceed. The incurring of significant costs by the company, the dissipation
of its assets in attending to the claim and the reasons for wanting to proceed
outside the insolvency scheme are other factors that the court will consider.
The decision in Meehan v Stockmans Australian Cafe (Holdings) Pty Ltd
(1996) 22 ACSR 123, correctly lends support to the proposition that a good
reason for refusing leave would exist in cases where the company’s
resources are threadbare and considerable costs would be incurred if leave
were granted. On the other hand, when the liability of the creditor needs to
be a liquidated amount before it is admitted to proof, leave will usually be
readily granted (Re Berkeley Securities (Property) Ltd [1980] 3 All ER 513; cf:
Re Islington Metal and Plating Works Ltd [1983] 3 All ER 218).
Matrix factors
Views of the majority creditors
51 In Re Zirceram Ltd (in liquidation) [2000] 1 BCLC 751 at [25],

Lawrence Collins QC, sitting as a deputy judge of the High Court, opined:
(1) One of the reasons, if not the principal reason, for giving weight
to the views of the majority of creditors who wish the voluntary
liquidation to continue is that they have the largest stake in the assets
of the company and their motives (especially if they are connected with
the company) for resisting compulsory liquidation may be

questionable if there are nor assets or no realistic prospects of recovery

for the unsecured creditors.
(2) The court may have regard to the general principles of fairness
and commercial morality, and the exercise of discretion should not
leave substantial independent creditors with a strong legitimate sense
of grievance. Fairness and commercial morality may require that an
independent creditor should be able to insist on the company’s affairs
being scrutinised by the process which follows a compulsory order.
(3) Inter-group transactions may require special scrutiny if they

operate to the prejudice of creditors and the court may take account of
the fact that an opposing creditor is not an independent creditor, but
an associated company.
[emphasis added]
52 I agree with this summary of the law pertaining to the consideration

and weight that should to be accorded to the views of creditors. The
linchpin here is fairness and “commercial morality”. I want to emphasise
that while the views of the majority creditors are important and should
generally be accommodated, the position is quite different where the
majority creditors are related entities. If there appears to be some basis for
an independent minority creditor to suggest that it is or might be
marginalised or disregarded in a liquidation process besieged by the
majority creditors, most of whom are related entities, the court ought to
carefully assess how it can grant a platform to that creditor to vindicate its
rights. At times, this remedy could take the form of an order to replace
liquidators within the voluntary liquidation scheme with an objective third
party who has no apparent relationship with the company’s management,
shareholders or the related major creditor(s). There is however an
unresolved issue in respect of the exact nature and scope of the obligations
of a “voluntary” liquidator that may make this an unattractive proposition,
should an investigation of the company’s affairs be called for. This will be
addressed later in [56].
Need for an independent inquiry
53 In Re Zirceram Ltd it was also observed at [25]:

A compulsory liquidation may be ordered so that there can be an
investigation which is not only independent, but seen to be
independent. Even if there is no criticism of the liquidator appointed in
the voluntary winding up (a) the fact that associated supporting
creditors have gone to great lengths to install, and maintain, him in
office, may disqualify him in the eyes of the creditors; (b) the
petitioning creditors may view with cynicism any investigation
undertaken by a liquidator chosen by the very persons whose conduct
is under investigation. [emphasis added]
54 This is, in my view, a critical consideration, particularly in instances

where one senses that impropriety in one form or another has occurred in
the company concerned. The role of the liquidator in such cases takes on an
added dimension: he wears the hat of investigator and sometimes that of
“prosecutor”. He is not a mere collector of assets performing an
administrative function. It stands to reason that the liquidator should not
be perceived, in such cases, as having had any relationship with the
company’s officers or shareholders. In my view, there is often a public
interest element in such cases that may sometimes tip the scales in favour of
allowing a compulsory winding up. The court will be vigilant not to allow
the smokescreen of costs raised by interested parties, who might well be the
subject of enquiry, to deter it from granting appropriate relief to legitimate
creditors.
Choice of liquidator
55 It has been tentatively suggested that the recourse, where the identity
of the liquidator is an issue, is to apply for a change of the liquidator under
s 302 of the Act: Re Inside Sport Ltd (in liquidation) [2000] 1 BCLC 302. In
Re Zirceram Ltd the court took the view (at [25]) that:
A liquidator appointed in the voluntary winding up must be seen not
to be taking sides, but even if there is no attack on the probity or
competence of the liquidator, or any other criticism, it may
nevertheless be right to protect the creditors by a full investigation into
the affairs of the company by a fully independent liquidator appointed
in the context of a compulsory winding up.
56 The option of changing the liquidators in a voluntary liquidation

appears, at first blush, to be a more expeditious and less costly course of
action than a compulsory winding up. While this point was not argued
before me, I should at least advert to it. The court in Re Pinkroccade
Educational Services Pte Ltd [2002] 2 SLR(R) 789 appeared to accept that
liquidators in voluntary liquidation have less exacting obligations than
court liquidators appointed pursuant to a compulsory winding up. While I
have reservations about the merits of this view, it would be inappropriate
for me, given that this is not an argued point, to say more here. For now it
can be persuasively said that creditors who desire a court supervised
liquidation have another legitimate reason for seeking the compulsory
winding up of a company. Indeed, if a significant objective of the
independent creditors is an investigation into the company’s affairs, the
identity of the liquidator is crucial. It is, I dare say, imperative in such cases
to appoint liquidators who have had no nexus to the company, if legitimate
(not necessarily majority) creditors seek this. A court appointed liquidator
in a compulsory liquidation, as an officer of the court, unlike a voluntary
liquidator, may better serve the interests of the creditors in these
circumstances.

57 I am conscious that some of the authorities I have referred to deal

with the exercise of discretion at the hearing stage and not the requirements
at the leave stage. These points are nonetheless relevant considerations; the
court has to evaluate, even at the leave stage, the prospects of success at the
hearing stage. As stated earlier, at this stage however, a final assessment of
the merits need not be made.
Exercise of discretion in this application
58 The material considerations in this application unequivocally lean in

favour of granting leave to the applicants to initiate compulsory winding up
proceedings.
59 While some time has elapsed between the company’s attempt to

install the liquidators through the voluntary liquidation proceedings and
the filing of this application, the applicants have consistently voiced their
concerns over:
(a) the state of the company’s affairs;
(b) the need for an enquiry into the reasons for the company’s
insolvency; as well as
(c) the apparent lack of independence on the part of the liquidators.
Neither the company nor the liquidators can assert that the applicants have
been inconsistent or dilatory.
60 Given the tenor of the communications between the applicants on the

one hand, and the company and its liquidators on the other hand, it is
understandable why the applicants now seek the court’s assistance to
consider the demise of the company afresh. The fact that the applicants are
the undisputed majority creditor with 71% of the admitted proofs to their
credit is, in this case, a critical factor. Counsel for the company, when
queried by me, agreed that this was a critical factor. In this respect, I find it
rather odd that in order to justify resisting/opposing compulsory winding
up proceedings, the company has sought through its solicitors to argue that
additional costs will be unduly incurred in the process. How can they? Huge
sums of money have already been lost by those previously responsible for
the company. The shareholders have, on any account, no equity left in the
company. The directors’ rights have been displaced by the “provisional”
liquidators. I did not question the company’s solicitors, but the thought
crossed my mind when this contention was raised: Who had instructed
them to raise this untenable argument of “additional costs”? Who are they
trying to save costs for? They were clearly not representing the liquidators
at the hearing. In the circumstances, I attached no weight at all to this
contention. This argument seems even more quixotic when one considers
that the applicants themselves, as the majority creditor, will have to

substantially shoulder, directly or indirectly, these additional costs, if and
when incurred. Interestingly, the company could not, when I queried its
solicitors, point to any other independent creditor supporting or relying on
this rather remarkable contention.
61 On this basis alone, there is sufficient reason to grant leave to proceed.

There are however certain additional factors that weigh heavily in favour of
granting leave in this case. The Anjin report, for instance, cries out for
further enquiry into the circumstances that have led to the demise of the
company. The liquidators in their tepid response affidavit have not
adequately satisfied the applicants, nor this court, how layer upon layer of
intricate transactions between the company and related entities as
identified by the report can be satisfactorily peeled back and accounted for.
Indeed, most unfortunately, the relationship between the applicants and the
liquidators appears somewhat strained.
62 It is puzzling that even after opposing parties have voiced their views,
ex parte applications are resorted to; thereby obviating notification to the
parties most interested in such matters. This is surely a recipe for building a
platform of mistrust and setting in motion a train of suspicion. I am
confident in this case that this was not the intention of the liquidators who
come from a reputable and respected firm. But this has now happened, and
the applicants do not now appear to be comfortable with or confident in the
liquidators’ ability to discharge their duties even-handedly. The liquidators
may not, if and when all the facts are laid bare, be in a position of actual
conflict after all. Notwithstanding, there is clearly, in my considered view, a
real basis for the applicants to perceive some apparent conflict.
63 Ordinarily, it would benefit all concerned to maintain the same

liquidators. Having said that, in a case like this, where doubt has been cast
on the conduct and accountability of the directors and officers of the
company and its related companies it would be appropriate for the court to
consider whether the existing liquidators are in the best position to
discharge their duties as liquidators to the body of creditors. Liquidators in
the exercise of their many obligations and duties exercise discretion. In
some instances, subject to the supervision of the court, they act in a quasi-
judicial capacity. They must not only be impartial but remain above the fray
at all times. It has been said repeatedly that a liquidator should not only be
independent, but indeed be seen to be so: Re Lowerstoft Traffic Services Ltd
[1986] BCLC 81; Re Pinstripe Farming Co Ltd [1996] 2 BCLC 295. They
must be perceived to be so, by all right-thinking independent creditors and
observers. These principles are encapsulated in two important English
decisions, Re Palmer Marine Surveys Ltd ([1] supra) and Re Zirceram Ltd
(in liquidation) ([15] supra). It should be noted that it is not imperative to

question or, for that matter, to address the competence of a voluntary

liquidator in order to obtain such a compulsory winding up order.
64 One further point should be noted. The applicants have deposed:

24. During the lapsed Creditors’ Meeting on 23 June 2003, critical
differences in approaches had already surfaced. While the Applicants
took the position that the appointment of the chairman of any such
meeting would be determined by the majority in value of creditors, the
Company expressed the view that the chairman should be appointed
by a majority in value and number. Presumably, this difference will
carry over to other issues, including whether the nomination of any
liquidator at any Creditors’ Meeting would require just the vote of the
majority in value of the creditors, or the majority in value and number
of the creditors.
25. The differences in approach over the voting mechanism at any
Creditors’ Meeting has been compounded by further disagreement
between the Applicants and the Company in relation to whether the
Company’s nominees for the position of the liquidators have been
appointed the liquidators of the Company.
26. The Applicants’ position is that as the creditors have even not
decided upon the nomination of liquidators in a Creditors’ Meeting,
the Company’s nominees have not been validly appointed to the
position of liquidators, and remain only as the Companies’ [sic]
nominees. However, the Company’s position is that their [sic]
nominees have been validly appointed as the liquidators by its
shareholders in the Shareholders’ Meeting held on 23 June 2003.
…
30. As we see it, whether or not Messrs Timothy James Reid,
Subramaniam Ramasamy Iyer and or Goh Thien Phong are liquidators
or provisional liquidators of the company, there is simply no basis for
them to allege that we have been obstructing the performance of any
duties they may have.
31. As recognised by the Company and its nominees for the position
of liquidators, the Creditors’ Voluntary Winding Up cannot proceed
without recourse to court proceedings. It is evident that for the
Creditors’ Voluntary Winding Up to continue, two key fundamental
issues would have to be resolved in court with the participation of all
the interested parties, including the Applicants:-
(1) whether the Company’s nominees for the position of
liquidators have been validly appointed as the liquidators of the
Company; and
(2) whether resolutions at the Creditors’ Meeting, including
any resolution for the nomination or appointment of any
liquidators, are to be carried by a majority in value of the
creditors or a majority in value and number of the creditors.
32. In a Court Winding Up, as opposed to a Creditors’ Voluntary

Winding Up, the liquidator would be appointed by the court, after
having had the opportunity to hear all interested parties. Clearly a
Court Winding Up would be much more efficient and cost effective
from that point of view.
65 An interesting issue arises from this. Apart from highlighting the lack
of congruence between the applicants and the liquidators, as well as the
company, the applicants have drawn attention to an anomaly in the
procedure for voting in a voluntary liquidation at different stages of the
procedure. Is the appointment of the chairman of a meeting of the creditors
during a voluntary winding up as well as the appointment of the liquidators
to be decided by a majority in value or a majority in value and number?
Butterworths’ Annotated Statutes of Singapore (Vol 1, 1997 issue) at 804
suggests:
In the absence of any specific rules, it would seem therefore that at
common law voting should be by simple majority on a show of hands.
Though s 296(7) and (8) speak of the majority of creditors by value, it
is not clear that they may vote by value.
66 No authority has been cited for this observation. It must also be

pointed out that s 11(2)(b) of the Act states that a majority in number and
value of the creditors may grant permission for the appointment of an
officer of the company to be a liquidator. The Companies (Winding Up)
Rules (Cap 50, R 1, 1990 Rev Ed) (“the Rules”) do not appear to directly
address the position of how the votes of creditors are to be taken into
account in a voluntary winding up. Rule 119 appears to be the only rule of
any assistance. It refers to a resolution being passed when a majority in
number and value of the creditors has voted in favour of the resolution. It
must however be observed that this rule comes under that part of the Rules
(rr 106 to 130) which is captioned “General Meetings of Creditors and
Contributories in Relation to a Winding Up by the Court” [emphasis
added]. Further ambiguity has been caused by references in certain
provisions of rr 106 to 130 to voluntary winding up proceedings. For
instance, r 114(4) states that it does not apply to a meeting under s 296 of
the Act. In a similar vein r 117(4) and r 118(3) state that they do not apply
to s 296 meetings under the Act. A plausible view is that the reference to
s 296 of the Act in these rules was inserted ex abundanti cautela by the
draftsman. If this view is correct, and the subject rules do not apply, is the
common law position then applicable, as suggested by Butterworth’s
Annotated Statutes of Singapore ([65] supra)? Having reviewed the position,
I can understand why the parties in this case can prima facie take different
positions which obviously serve their very different objectives.
67 This point could be critical where the views of the majority in number
and those of the majority in value do not coincide. Having pointed out
these difficulties, I do not think I should express any considered views on

this save to add that the recourse of an aggrieved majority creditor may be
to rely on s 325 of the Act. Sections 325(1) and (2) of the Act are of general
application to all liquidations. Section 325(1) states that where the court
thinks fit, it can direct a meeting of the creditors to ascertain their views.
Section 325(2) directs the court, in no uncertain terms, to have regard to the
value of each creditor’s debt and not the number of creditors. If the interests
of the qualitative and quantitative majorities of the creditors diverge, the
courts can then redress the situation. For example, in the case of In re The
Seremban General Agency, Ltd (1922) 3 FMSLR 3, a resolution for winding
up was purportedly passed by the creditors having the majority in number
but not value. The court ordered the compulsory winding up of the
company, taking into account the wishes of the creditor having the majority
in value of claims. The appropriate judicial philosophy appears to be
correctly encapsulated in that case, even though the statutory provisions are
not in pari materia with the Act.
68 It stands to reason that those who have the greatest financial interest
in the assets of the company should usually be allowed the biggest say.
Corporate democracy is seldom a quantitative exercise. This common sense
approach using value as the touchstone also resonates in the UK Cork
Report 1982 (Report of the Review Committee on Insolvency Law and
Practice (Comnd 8558) para 922) which takes the view that the power of a
creditor’s vote should be intertwined with the value of the claim. In
England, the Insolvency Act 1986 states that voting at the creditors’ meeting
is now decided by a majority in value of the creditors. This is at variance
with the previous procedure where the majority both in number and value
was decisive. The Insolvency Rules in England have detailed proceedings on
how voting is to be carried out. The position in Singapore cries out for
legislative intervention; in situations which cannot be sensibly resolved, the
ambiguity may lead to unnecessary litigation.
69 I have had to refer to the background facts at some length in this

matter. Given the obvious and stark difference in views on the issues, the
applicants, despite their status as majority creditor, have regarded the
voluntary process as one fraught with uncertainty. If the company and the
liquidators are right in their views on the voting issue identified, the
applicants, though a majority creditor, could well find themselves sidelined.
This cannot be right in the circumstances. The applicants therefore prefer
the certainty of a compulsory winding up and the appointment of a court
appointed liquidator. Failing to see how either the company or the
liquidators could legitimately oppose this application in these
circumstances, I accordingly readily allowed it and granted leave for the
initiation of compulsory winding up proceedings.
Role of liquidators
70 I am constrained by the circumstances to conclude by briefly alluding

once again to the role of liquidators in both voluntary and compulsory
liquidation. I have not concluded that the liquidators in this instance
behaved, or will behave, inappropriately. I do not need to do so at this stage.
Liquidators should always view matters through objective lenses. When
concerns are raised and liquidators are challenged on an issue involving an
existing or potential conflict, they should pause and carefully review their
position dispassionately. They should seek, if necessary, advice from wholly
independent counsel or their peers in the same profession. They must be
seen to be properly wearing the mantle of objective neutrality untarnished
by any special interests, including their own fee considerations. This is
especially crucial when a significant creditor takes issue with the
appointment of liquidators initiated by company directors who have hardly
distinguished themselves in the run-up to insolvency. I was surprised that
the liquidators filed an affidavit strenuously opposing the granting of leave
to proceed with the compulsory winding up of the company. It is hornbook
law that liquidators should not descend into the battle arena. In Souster v
Carman Construction Co Ltd [2000] BPIR 371, the role of a voluntary
liquidator in relation to a petition for the compulsory winding up of a
company was addressed (at 372):
It is well understood that the role of the voluntary liquidator in a
petition like this is that of neutrality to assist the court. He should not
be partisan and should not become involved in arguing the merits for
or against the making of a winding-up order. The authorities for that
proposition are to be found in Re Medisco Equipment Ltd [1983] BCLC
305, and Re Arthur Rathbone Kitchens Ltd [1997] 2 BCLC 280.
71 In an earlier judgment (Re Roselmar Properties Ltd (No 2) (1986)

2 BCC 99,157 at 99,158), Harman J had ruled in a similar vein:
[T]he voluntary liquidator has a duty to stand neutral between all
creditors and to exercise a detached judgment in an almost quasi-
judicial manner, particularly when for example dealing with proofs of
debt and such like matters. He is not to appear and take sides and to
fight battles. More especially is he not to give any appearance of taking
sides and fighting battles, let alone in substance to so do, on behalf of
directors and shareholders who claim also to be creditors of the
company.
72 It is trite law that a liquidator in winding up proceedings has no locus

standi to oppose or support the making of an order. The role of the
liquidator, voluntary or otherwise at the leave stage, ought to be no
different. The liquidators in this case ought not to have contentiously
opposed in their affidavit the granting of leave to the applicants to
commence proceedings that might possibly displace them. This is jarringly

at odds with what is expected of them in such an application. It is

incumbent on them in the circumstances to merely recite the relevant facts
and to leave it to the court to decide the matter on its merits. The role of a
liquidator in legal proceedings must be one of pure and utter impartiality. It
strikes me also as somewhat incongruous that in a situation like this when
their role was challenged and allegations were made about their
relationship with the company, the liquidators should be represented, at
any juncture, by the same firm of solicitors as the company. A whole
spectrum of circumstances has surfaced as a result, casting doubt on the
liquidators’ objectivity. This is most unfortunate, as I am fairly certain that
the liquidators may not have intended this to happen.
A footnote
73 Prior to hearing the application, I had asked both counsel if they had
any objections about having this matter heard before me. Mr Yeap had
joined the applicants’ present solicitors only after I had departed from the
firm. The matter was also transferred to the applicants’ present solicitors
subsequent to my departure. Mr Yeap had had continuous conduct of this
matter in his previous firm. If the parties harboured any concerns, I would
not have heard the matter. Both counsel assured me they had no misgivings
about my hearing the case and requested that I proceed. The facts were
completely new to me.
Reported by Jeyendran Jeyapal.

KOREA ASSET MANAGEMENT CORP V DAEWOO SINGAPORE PTE LTD (IN LIQUIDATION) (2004) SGHC 25

Uploaded by

Copyright:

Available Formats

KOREA ASSET MANAGEMENT CORP V DAEWOO SINGAPORE PTE LTD (IN LIQUIDATION) (2004) SGHC 25

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

KOREA ASSET MANAGEMENT CORP V DAEWOO SINGAPORE PTE LTD (IN LIQUIDATION) (2004) SGHC 25

Uploaded by

Copyright:

Available Formats

paginator.

book Page 671 Tuesday, November 3, 2009 7:03 AM

[2004] 1 SLR(R) SINGAPORE LAW REPORTS (REISSUE) 671

Korea Asset Management Corp

High Court — Originating Summons No 1632 of 2003

672 SINGAPORE LAW REPORTS (REISSUE) [2004] 1 SLR(R)

Held, allowing the application:

Korea Asset Management Corp v

674 SINGAPORE LAW REPORTS (REISSUE) [2004] 1 SLR(R)

1 This application raises an interesting insolvency issue on which there

Korea Asset Management Corp v

investigation undertaken by a liquidator chosen by the very persons

2 The present application is unusual in the sense that the applicants,

4 The company had two main areas of business:

(a) The import and export of industrial, construction and

(b) Acting as a commission agent for the purpose of securing trade

5 The company is currently wholly owned by Daewoo International

6 PriceWaterhouseCoopers (“PWC”), two of whose partners are

676 SINGAPORE LAW REPORTS (REISSUE) [2004] 1 SLR(R)

Republic of Korea, Samil Accounting Corporation (“Samil”), which has

7 On 26 May 2003, the directors of the company filed a statutory

8 By the statement of affairs filed by the company on 26 May 2003:

(a) The company has admitted that it is indebted to the applicants

(b) The estimated unsecured liabilities of the company amount to

9 On 26 May 2003, the company issued a notice of meeting to the

11 The liquidators responded on 19 June 2003, stating that they would

12 On 23 June 2003, the shareholders’ meeting was held and the

Korea Asset Management Corp v

13 The liquidators also proceeded to convene the creditors’ meeting on

14 In response to the earlier queries from the applicants dated 20 June

(b) Samil had been appointed to act in various advisory capacities:

(ii) to advise on the sale of Daewoo Motor to Ford Motors;

(iii) to act as a lead financial advisor for the sale of the

(iv) to assist DWC with regard to its split into three

(v) to review the business plan of Daewoo America Inc, which

678 SINGAPORE LAW REPORTS (REISSUE) [2004] 1 SLR(R)

(vi) to act as sellside advisor for various non-performing loan

(c) PWC Singapore had previously undertaken the following works

(i) providing advice on a possible scheme of arrangement

(ii) performing a limited financial due diligence of the

15 At this juncture, I should mention that the applicants had already

17 The Anjin report examined in detail these related company debts

19 On 7 August 2003, the solicitors for the applicants refuted this in a

Korea Asset Management Corp v

20 On 21 August 2003, the solicitors for the company, in a letter to the

21 Immediately thereafter, on 22 August 2003, the liquidators made an

(a) a creditors’ meeting be held on 12 September 2003; and

(b) PWC be permitted to exercise all powers as liquidators of the

22 That application was filed and argued by the company’s solicitors. It

23 Having obtained an ex parte order of court on 27 August 2003, the

24 At the second creditors’ meeting, the chairman of the meeting, once

680 SINGAPORE LAW REPORTS (REISSUE) [2004] 1 SLR(R)

25 At the second creditors’ meeting, the liquidators reiterated and

26 The applicants’ solicitors wrote to the company’s solicitors on

27 On 16 October 2003, the solicitors for the applicants wrote to the

28 Soon after this, on 14 November 2003, the applicants initiated an

Korea Asset Management Corp v

30 The liquidators’ affidavit was filed by the company’s solicitors, who,

32 Section 299(2) of the Act stipulates: