Significance: BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and another [2016] SGHC(I) 01 is the first Singapore International Commercial Court (SICC) judgment ever. Decided by Quentin Loh J, Vivian Ramsey IJ and Anselmo Reyes IJ.
Case Update: Living the Link Pte Ltd v Tan Lay Tin Tina [2016] SGHC 67 – SGHC clarifies law on undue preference, running account principle, and partial reversal of undue preference transactions
Significance: Singapore High Court, in determining a case of undue preference and breach of fiduciary duties by a former director of a company, considered the application of the running account principle defence. The principle is that a transaction, which on its face is an undue preference, can be upheld on the basis that it was made under a mutually beneficial running account. The Court held that the fact that an impugned payment was made pursuant to a running account is by itself insufficient to negate an intention to prefer – it must have been made with the intention of obtaining new value to keep the business going. The running account principle, so understood, is not strictly an independent defence, but goes to proving that the insolvent company was acting solely by reference to proper commercial considerations in making the payment and was not influenced at all by a desire to prefer the creditor: [55].
The Court also considered that the court’s broad discretion under s 99(2) of the Bankruptcy Act allows it, in an appropriate case, to order a partial reversal of transactions found to be undue preferences if justice so requires. Such an order may be justified, for example, in clear cases where the parties’ claims are uncontroversial, or where there is an agreement between the preferred creditor and the liquidators as to the amount which ought to be set aside for the claims of the other unsecured parties: [76].
The Court also followed the English Court of Appeal’s decision in Liquidator of West Mercia Safetywear Ltd v Dodd and another (1988) BCC 30 (“West Mercia”) in holding a director personally liable for procuring an undue preference on the basis of breach of fiduciary duties.
Case Update: Lian Kok Hong v Lian Bee Leng and another [2016] SGCA 24 – SGCA clarifies law on contentious probate and suspicious circumstances regarding execution and preparation of will
Significance: Singapore Court of Appeal clarifies that in determining whether a testator had testamentary capacity and/or knowledge of the contents of the will, the Court cannot regard all suspicious circumstances, whether or not they relate to the execution and preparation of the will, to be taken into account in determining if the usual presumption that a testator who has testamentary capacity knew and approved the contents of the will operates. Circumstances are relevant only if they attend or relate to the preparation and execution of the will. Otherwise, all kinds of non-related circumstances may be used to rebut the presumption. See [60]. Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 affirmed, clarified.
Case Update: SGB Starkstrom Pte Ltd v Commissioner for Labour [2016] SCGA 27 – authority to act for mentally incapacitated person
Significance: Singapore Court of Appeal emphasises that the Mental Capacity Act is the prevailing legislation of general application governing the conferment of authority on a third party to manage the affairs of a mentally incapacitated person. It will be applicable across all situations in which a third person purports to act on behalf of a mentally incapacitated individual. Without such authority conferred by law, no one–not even a next of kin–can purport to act on behalf of, make decisions for, elect on legal remedies for, a mentally incapacitated person: [25].
This decision also considered in obiter dicta the issue of whether the public law doctrine of legitimate expectations is applicable under Singapore law. The Court left this open, but raised many difficulties with the doctrine.
Court awards costs to party represented by pro bono lawyer
SATS Construction Pte Ltd v Islam Md Ohidul [2016] SGHC 99
http://www.singaporelawwatch.sg/slw/headlinesnews/81429-court-awards-legal-costs-for-work-done-on-pro-bono-basis.html#sthash.htpgjVuK.dpbs
In the case, SATS Construction Pte Ltd v Islam Md Ohidul [2016] SGHC 99, covered by this news article, K.C. Vijayan, “Court awards legal costs for work done on pro bono basis”, Straits Times (3 May 2016), the High Court hearing an appeal from a labour court decision requested for a special hearing on the issue of whether a party who was represented by a pro bono lawyer could be awarded legal costs. The High Court held that it could and in this case, ordered $6,000 costs in favour of the worker, who was represented pro bono.
This is certainly good news for pro bono lawyers and impecunious litigants. It should be noted that in some cases, impecunious litigants may not even have the funds to pay for disbursements such as court filing fees, commissioner for oath fees, etc. A cost award could help pay off some of these, and also compensate the pro bono lawyer a little for the substantial time and resources spent. Of course lawyers who act pro bono don’t do it for the money. They went in knowing full well that they probably wouldn’t be paid. But this is helpful to ease the burden of some small firm pro bono lawyers. Also, it is only fair that the losing party is penalised with costs. Especially if that party commenced the action or appeal and lost. There is a deterrent effect as well.
Maniach Pte Ltd v L Capital Jones Ltd [2016] SGHC 65 – SGHC holds that minority oppression claims are not arbitrable per se
Maniach Pte Ltd v L Capital Jones Ltd [2016] SGHC 65 – SGHC holds that minority oppression claims are not arbitrable per se
Significance: Singapore High Court (coram: Vinodh Coomaraswamy J) held that all statutory minority oppression claims, i.e. section 216 claims, regardless of the factual circumstances are not arbitrable as a matter of public policy.
The reasons given are:-
1. the minority oppression claim, being statutory in nature and being asserted in relation to the affairs of a creature of statute, ought to be supervised and determined by the court in all cases: [160];
2. (a) an arbitral tribunal is unable to grant a plaintiff in minority oppression proceedings the full panoply of relief available under s 216(2) of the Companies Act to remedy minority oppression; and (b) it is undesirable to compel the parties to fragment a minority oppression dispute between litigation and arbitration, whether that fragmentation arises because the arbitral tribunal cannot grant the full range of relief which the statute makes available to a successful plaintiff or because only some of the parties to the dispute are parties to the arbitration agreement. This follows Quentin Loh J’s reasoning in Silica: [161].
On part (a) of the 2nd reason above, Vinodh J opined that the statutory power to order a buy out on terms under s 216(2)(d) of the Companies Act is vested only in a judge, and even then only by s 216(2)(d) of the Companies Act and is alien to the common law and even to equity: [164]. Further, following Quentin Loh J in Silica in considering the scope of s 12(5) of the International Arbitration Act: (1) it clearly could not “be construed as conferring upon arbitral tribunals the power to grant all statute-based remedies or reliefs available to the High Court” and (2) that an arbitral tribunal “clearly cannot exercise the coercive powers of the courts or make awards in rem or bind third parties who are not parties to the arbitration agreement”: at [165].
On part (b) of the 2nd reason above, Vinodh J opined that if minority oppression claims are arbitrable, fragmentation along remedial lines and issues is inevitable: [169]-[170].
Legislative Update: Choice of Court Agreements Bill
Legislative Update: Choice of Court Agreements Bill
The Choice of Court Agreements Bill (Bill No. 14/2016) was introduced in the Singapore Parliament on 4 April 2016. This Bill enables Singapore to give effect to the Convention on Choice of Court Agreements done at The Hague on 30 June 2005 (the Convention). The Convention establishes an international legal regime for enforcing an exclusive choice of court agreement concluded in a civil or commercial matter in an international case, and provides for the recognition and enforcement of any foreign judgment given by, and the enforcement of any judicial settlement approved by or concluded before, a court of a Contracting State designated in an exclusive choice of court agreement.
Continue reading “Legislative Update: Choice of Court Agreements Bill”
Case Update: Haniszah bte Atan v Zainordin bin Mohd [2016] SGHCF 5 – financial relief-post divorce denied
Significance: Singapore High Court held that a person who has been divorced in a foreign court and was married under Muslim Law cannot, under the present wording of the Women’s Charter and the Supreme Court of Judicature Act, apply to either the civil courts or the syariah courts for financial relief post-divorce.
New Horizons
Today, I will be taking a leap of faith.
Yesterday was the last day of my employment with Rajah & Tann Singapore LLP.
Today, I’ll be joining a new firm Covenant Chambers LLC, as a self-employed lawyer, without fixed income, building my own legal practice, finding and relating to my own clients, serving the rich and the poor the man on the street and the SMEs, doing pro bono and paid work; I seek to pursue justice and peace with as much integrity as I can have, empathy as I can muster, and dedication I can afford.
Why did I do this? Because I sensed this to be my calling this season. I am pursuing a motivation not rooted in money but autonomy, growth and purpose as a lawyer, as an advocate and as a counsellor.
Here’s the view from my new office, and here’s to new horizons.
Case Update: Hewlett-Packard Singapore (Sales) Pte Ltd v Chin Shu Hwa Corinna [2016] SGCA 19 – construction of contract and contra proferentem
Hewlett-Packard Singapore (Sales) Pte Ltd v Chin Shu Hwa Corinna [2016] SGCA 19
Significance: Singapore Court of Appeal grants appeal to Hewlett-Packard who argued that a new commission remuneration metric was not ambiguous and that the scenario in question did not fall within the said metric entitling its ex-employee a substantially higher commission payment. Court clarifies and explains the principles on contra preferentem, among other things.