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- Significant cases & deals featuring our lawyers
Lee Eng Beng SC, Chua Beng Chye, Raelene Pereira, Ginny Cheong and Matthew Teo from the Business Finance & Insolvency Practice successfully acted for the Official Assignee, the Respondents in Cheo Sharon Andriesz v Official Assignee of the estate of Andriesz Paul Matthew, a bankrupt [2013] SGCA 8, in resisting an appeal against the decision of the High Court. The Court of Appeal affirmed that a disposition of property from the Appellant's ex-husband to the Appellant was void because it was made after the bankruptcy application had been filed and before the date of the bankruptcy order was made.
Brief Facts
The events of the case revolved around bankruptcy proceedings initiated against the Bankrupt by one of the creditor banks ("Bank"), as well as concurrent divorce proceedings with his ex-wife, who was the Appellant in this case.
The Appellant and the Bankrupt agreed to an interim consent judgment in the divorce proceedings, under which the Bankrupt would transfer his interest in two properties to the Appellant ("Disposition"). However, the Disposition was made after the date of the Bank's bankruptcy application was filed and before the date of the bankruptcy order made ("Relevant Period").
Holding
The High Court Judge held that the Disposition was void and declined to ratify the Disposition. The Judge relied on section 77(1) of the Bankruptcy Act, which nullifies dispositions of property made during the Relevant Period unless ratified by the Court.
The Court of Appeal affirmed the decision of the High Court.
The Appellant argued that section 77(1) was confined to dispositions voluntarily carried out by the Bankrupt, and not dispositions made pursuant to an order of court. However, the Court of Appeal rejected the submission, holding that a disposition, even if made pursuant to a court order, falls within the ambit of section 77(1) and is void unless it can be demonstrated that the disposition was made in good faith and without notice of the bankruptcy application. The Court of Appeal further highlighted the importance of conducting bankruptcy searches prior to the commencement of court proceedings, including matrimonial proceedings.
We have featured this case in the January 2013 issue of our Client Update. To read the Update, please click here.
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Adrian Wong and Jansen Chow from the Commercial Litigation Practice acted for AIA Singapore Pte Ltd ("AIA") in Zhu Yong Zhen v AIA Singapore Pte Ltd [2013] SGHC 37, in successfully defending a claim of about S$1.8 million by the Plaintiff for alleged breach of her policy contract.
The Plaintiff argued that a Policy Benefit Illustration ("PBI") used by her insurance agent to recommend a policy formed part of her policy contract between the parties, and guaranteed, amongst others, that the critical year of the policy was fixed. The critical year of a policy refers to the last year by which a policy holder will need to make out-of-pocket premium payments. This is the first judgment in Singapore dealing with the critical year issue, which received widespread media coverage in 2003.
The High Court dismissed the Plaintiff's claim as the express terms of her policy application form and policy, including an entire agreement clause, excluded the PBI from having any contractual effect between the parties. In any event, it was clear from the PBI that the critical year of a policy was dependent on, amongst others, the interest rates and dividends declared yearly. Both the interest rates and dividends were expressly stated to be non-guaranteed in the PBI itself.
The Material Facts
- On 29 April 1993, the Plaintiff was presented with a PBI for a Singapore Financial Guardian ("SFG") policy with a coverage of S$100,000 by her insurance agent. The PBI was used to illustrate the benefits of a SFG policy.
- A SFG policy was a life insurance policy offered by AIA. The premiums of such a policy are payable till the insured is 88 years old. The SFG policy also allowed a policy holder to participate in AIA's surplus in the form of dividends. The accumulated dividends (and any interests accrued thereon) may then be used by the policy holder to off-set or reduce future premium payments.
- In this regard, the critical year of a policy refers to the projected last year of that policy in which the policy holder has to make out-of-pocket premium payments. The projected critical year of the policy is not fixed as it is dependent on, amongst others: (i) future cash dividends; and (ii) interest rates, which are declared yearly and are not guaranteed.
- On 14 May 1994, the Plaintiff submitted her application form for a SFG policy with a policy coverage of S$200,000. The Plaintiff's policy was issued to her on 19 May 1993.
- In 2003, there was widespread media coverage in relation to the critical year feature. Some policy holders were under the misunderstanding that the critical year was guaranteed. As such, AIA set up a critical year support program to assist over 110,000 policy holders on a case by case basis.
- In 2008, the Plaintiff was notified of her support package under the critical year support program. The Plaintiff refused the support package offered and insisted that the critical year of her policy was guaranteed.
- In 2009, the Plaintiff commenced the present Suit against AIA in the High Court of Singapore for alleged contractual damages of about S$1.8 million, which she claimed was the guaranteed value of her policy at age 100, based on the PBI.
The Court's Holdings
- The Court held that the PBI was not a contractual offer from AIA to the Plaintiff. Rather, as was the usual situation with insurance contracts, the offer to contract arose from the Plaintiff's application for the policy. It was then open to AIA to determine whether or not to accept this offer. This was consistent with Declaration C of the policy application form which provided that:
"Any insurance herein applied for shall not take effect unless and until the relevant policy is/are issued and delivered to me on this application and the first premium thereon actually paid in full…"
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In any event, the Court held, obiter, that the content of the PBI clearly indicated that the critical year of the policy was not guaranteed.
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The PBI illustrated that the premiums payable after the projected critical year would be paid out of the accumulated dividends. The PBI expressly stated that both the future dividends and interest rates were not guaranteed. In fact, the Plaintiff conceded at trial during cross-examination that her insurance agent had showed her how the accumulated dividends were calculated based on the non-guaranteed interest rates. Back to Top Print
Lai Yew Fei and Alec Tan from the Commercial Litigation Practice successfully represented a director in her application for Criminal Revision under section 404 of the new Criminal Procedure Code ("CPC") for an order that the Public Prosecutor ("Prosecution") furnish further particulars in respect of the Summary of Facts ("SOF") contained in the Case for the Prosecution ("Prosecution's Case").
Brief Facts
The director faced 6 charges, including a charge under section 477A of the Penal Code of engaging in a conspiracy with 2 other co-accused persons, to falsify a paper belonging to ABC Offshore Ltd, willfully and with intent to defraud ("477A Charge"). Under the CPC, an offence under section 477A of the Penal Code is subject to the new Criminal Case Disclosure Conference ("CCDC") regime.
On 13 September 2012, the Prosecution served the Prosecution's Case on the director. Under section 162(b) of the CPC, the Prosecution's Case must include, amongst other things, "a summary of the facts in support of the charge". However, the SOF was a mere regurgitation of the contents of the 477A Charge as stated in the Charge Sheet. Amongst other things, the SOF omitted any material facts to identify the party alleged to be defrauded.
As such, the director applied for an order for further particulars under section 160 of the CPC, or alternatively, for a discharge not amounting to an acquittal under section 169(2) of the CPC. The director's application was dismissed at the first instance before the learned District Judge Mr Siva Shanmugan, who was of the opinion that this was a matter that should be dealt with by the trial judge.
Holding
The Criminal Revision was heard before the Judge of Appeal the Honourable Justice Chao Hick Tin ("Justice Chao").
Briefly, the Prosecution's main objections were as follows:
The explanatory note to section 477A of the Penal Code specifically states that in any charge under section 477A, there is no requirement to set out the party allegedly being defrauded in the Charge – it is sufficient that there is only a general intent to defraud. Consequently, there was no need to specify the party allegedly being defrauded in the SOF.
The Prosecution's case against the accused persons was not merely contained in the SOF, but was identifiable by reading the entire Prosecution's Case holistically, which included the List of Prosecution Witnesses and the Statements of the Accused which the Prosecution intended to rely on at trial. Further, the director was given witness statements of each of her co-accused persons.
The SOF is unlike pleadings in civil proceedings, and it would be prejudicial to the administration of justice for the Accused persons to attempt to pin the Prosecution's case to the contents of the SOF.
Briefly, the director's main arguments were as follows:
The Prosecution did not comply with the requirements under section 162 of the CPC because a part of the SOF was omitted from the Prosecution's Case. The SOF is not simply a corollary of the Charge but it is a separate and distinct element of the Prosecution's Case. If this was not so, section 162(b) of the CPC would be rendered otiose.
Section 162(b) of the CPC requires the SOF to contain the "facts in support of the charge" and an element of the 477A Charge is that the alleged illegal act was committed with an intention to defraud. To establish intent to defraud, the Prosecution was required to prove that "some person be deceived" and that "loss or detriment should befall some other person or some benefit accrued to the accused". It was not sufficient for the Prosecution to rest its case simply by alleging a "general intent to defraud" without reference to any specific party. It was inconceivable how the director would have been able to prepare her Defence without any knowledge of the identity of the person alleged to be defrauded.
The Prosecution's contention that the SOF did not need to contain all the material facts in support of the charge so long as these details could be found elsewhere in the rest of the materials presented in the Prosecution's Case was not only fallacious, but entirely mischievous and calculated to keep the Defence guessing of the precise nature of the Prosecution's case. Further, the director's Defence would be prejudiced as she would not be able to gather the requisite evidence / witnesses if the Prosecution subsequently changed its tack at trial and identified a different party that was allegedly being defrauded.
Parliament's intention for introducing the new CCDC regime in the new CPC was to ensure greater transparency and to ensure that the Defence is able to assess the Prosecution's case more carefully and make the requisite preparation to meet the charge. Further, it would not be burdensome to the Prosecution or prejudicial to its case to identify the party alleged to be defrauded. If the Prosecution was allowed to indulge in such tactical manoeuvres, it would clearly undermine the purposes of the CCDC and would be contrary to the interests of justice.
Justice Chao agreed with the director's submissions and ordered the Prosecution to furnish the requested particulars.
Significance
This is possibly the first case in Singapore in which the High Court considered the provisions of the new CCDC regime. A significant point in this case is that under the new CCDC regime, the Court will step in to intervene if the Prosecution serves on the Defence a deficient Prosecution's Case, and if required in the interests of justice, order that the Prosecution furnish further particulars to inform the Defence of the case it needs to meet.
The Prosecution has since filed a Criminal Reference to review Justice Chao's decision.
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Lai Yew Fei, Khelvin Xu and Allen Ng from the Commercial Litigation Practice acted for a Japanese company listed on the Tokyo stock exchange in a Singapore International Arbitration Centre ("SIAC") arbitration. The client was defending a claim concerning an agreement governing the exclusive distribution in China of a well-known and highly-popular Japanese brand of consumer products. The value of the claim exceeded US$13 million. Our team of lawyers succeeded on all the matters raised and the Tribunal dismissed the opposing parties' claims completely. The opposing parties were represented by Jones Day who appointed an English silk, Charles Manzoni QC.
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Lai Yew Fei and Alec Tan from the Commercial Litigation Practice successfully represented Mr Lim Siang Hwee ("Mr Lim") in his claim against Mr Ong Hong Kiat ("Mr Ong") in the High Court of Singapore, and successfully represented RIQ Pte Ltd ("RIQ") in its defence against Mr Ong's claim.
Brief Facts
Mr Lim and Mr Ong were the only shareholders and directors of RIQ. An oral contract was concluded in a series of Short Message System messages ("SMS") on 19 March 2012 in which Mr Ong agreed to sell all his shares in RIQ to Mr Lim for S$345,000 and to resign as a company director of RIQ with retrospective effect on 29 February 2012. Mr Ong subsequently reneged on the agreement and commenced an action against RIQ for an order to inspect the company's books and records. Mr Lim's defence was that Mr Ong had already transferred the RIQ shares registered in his name to Mr Lim and had also resigned as a director. Mr Lim commenced an action against Mr Ong for specific performance of the contract for the transfer of Mr Ong’s RIQ shares to him.
Amongst other things, Mr Ong alleged that his SMS of 19 March 2012 which stated "I accept your offer of S$345k & all documents ready to sign at auditors' office" was not an unequivocal acceptance of Mr Lim's offer but a counter-offer. Next, Mr Ong alleged if a contract was concluded on 19 March 2012, the supposed new term for "all documents ready to sign" was uncertain and rendered the contract unworkable. Further, Mr Ong also claimed that even if a valid contract was formed, it was mutually rescinded by agreement as the parties subsequently continued negotiations. Mr Ong also asserted that his resignation as director contained in the SMSes was not valid as it did not satisfy the requirements of "in writing" in articles of association.
Holding
Justice Quentin Loh held that Mr Ong's resignation as director contained in SMSes was valid in light of the recent case law concerning electronic documents (in particular emails). The judge also held that Mr Ong's SMS of 19 March 2012 was not a counter-offer as there was no need for every term of the agreement to be stated in the acceptance if the parties had already agreed on other terms in prior negotiations. Second, the words "all documents ready to sign" comprised documents that were not essential terms to the agreement and would ordinarily be considered administrative follow-up paperwork. Third, for there to have been rescission, there had to be continuing negotiations between the parties which clearly indicated that both parties agreed that the prior agreement was rescinded. The meetings and SMS exchanges between Mr Ong and Mr Lim after 19 March 2012 did not clearly show that there was a mutual agreement to rescind the contract.
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The Firm's Competition & Antitrust and Trade Practice headed by partner Kala Anandarajah acted for a major MNC in the beverages industry ("Company") in an investigation by Singapore's competition watchdog, the Competition Commission of Singapore ("CCS"). The investigation started pursuant to a complaint that the Company's supply agreements with some of its retailers contained potentially anti-competitive provisions. Having reviewed all the facts and circumstances of the case, including the fact that the Company had prior to the commencement of the investigation amended and voluntarily continued to amend the relevant agreements, the CCS decided to close its investigation into the Company subject to the Company undertaking to comply with certain requirements of the CCS.
Led by partner Kala Anandarajah, the team involved in this matter included associates Kimberly Tan and Huilin Loh and was further assisted by partner (foreign lawyer) Dominique Lombardi.
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The Firm's Competition & Antitrust and Trade Practice acted for Asia Renal Care (SEA) Pte, a subsidiary of Fresenius Medical Care AG & Co. KGaA ("FMC Group") in the acquisition of 70% of the shares of Orthe Pte Ltd by Asia Renal Care (SEA) Pte Ltd ("ARC SEA"). Further to the acquisition, ARC SEA owns 100% of the shares in Orthe Pte Ltd ("Orthe Group"). The transaction amounted to a merger under Section 54 of the Competition Act. In view of the structure of the market and the market share of the parties in the relevant market (i.e. the provision of dialysis services in Singapore), a decision was made to obtain a decision by the Competition Commission of Singapore ("CCS") that the merger was not in violation of Section 54 of the Competition Act.
When reviewing the acquisition of the Orthe Group, the CCS reviewed the effect of the merger in markets very narrowly defined, i.e. the merged entity seemingly had substantial market share, above the indicative thresholds set by the CCS. However, the parties were able to successfully establish that the structure and nature of the market was such as to prevent the merger from resulting in a substantial lessening of competition in Singapore. The CCS cleared the merger.
Kala Anandarajah, the Head of the Firm's Competition & Antitrust and Trade Practice led the team involved in this matter, which comprised associates Huilin Loh and Kimberly Tan. The team was further assisted by partner (foreign lawyer) Dominique Lombardi. Back to Top Print
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