The Restructuring Review: Singapore

Overview of restructuring and insolvency activity

Since the last edition of this publication, the long-awaited omnibus Insolvency, Restructuring and Dissolution Act (IRDA), which was first announced in early 2019, came into force on 30 July 2020. With the global economic downturn and the covid-19 pandemic bringing about a busy year for restructuring and insolvency in Singapore, a number of these new provisions of the IRDA have been considered by the Singapore courts. We discuss these recent developments in the law.

General introduction to the restructuring and insolvency legal framework

i Restructuring and insolvency legal framework

Previously, the corporate restructuring and insolvency framework in Singapore consisted of a composite patchwork of the Companies Act, with certain provisions in the Bankruptcy Act imported into the Companies Act with necessary modifications. With the coming into effect of the IRDA, the primary source of legislation in Singapore governing corporate restructuring and insolvency is now the IRDA, as supplemented by various subsidiary legislation and by the Companies Act.2 Under the framework, there are three broad areas of court-supervised insolvency and restructuring procedures for companies: schemes of arrangement, judicial management and liquidation.

Schemes of arrangement

Part 5 of the IRDA sets out the statutory framework for schemes of arrangement. A scheme of arrangement is a statutory mechanism for securing agreement between a company and its creditors, members or shareholders in respect of a compromise or arrangement without the need for unanimous consent. Thus, under the scheme, creditors may, for example, agree to rearrange or extinguish debts owed by the company to them in part or in whole, or to defer repayment of the same. The court plays a supervisory role at two key junctures: first, in granting leave for a creditors' meeting to be convened to consider the scheme of arrangement,3 and second, in sanctioning the scheme of arrangement4 (which must have been approved by the majority of creditors in number representing three-quarters in value of the creditors or members, or class of creditors or members5).

The statutory framework features a number of mechanisms and procedures that complement schemes of arrangement.

First, the statutory framework provides for a moratorium. With the coming into force of the IRDA, there are two main avenues to obtain a statutory moratorium: a moratorium to restrain 'further proceedings in any action or proceeding against the company' provided for under Section 210(10) of the Companies Act;6 and the moratorium under Section 64 of the IRDA, which largely mirrors the 'enhanced' moratorium first introduced in 2017 (discussed in the 2017 edition of this publication). Compared with the moratorium under Section 210(10) of the Companies Act, under the IRDA 'enhanced' moratorium, an interim 30-day moratorium arises automatically upon an application being made for a moratorium.7 Further, under the IRDA regime, it is possible to obtain an order that (1) secured creditors be restrained from taking steps to enforce their security,8 (2) the moratorium have in personam worldwide effect;9 and (3) the moratorium be extended to related companies.10 The commencement and continuation of certain types of proceedings as prescribed by regulations is excluded from the effect of the moratorium (including the interim moratorium) under the IRDA regime.11 For now, admiralty proceedings and security interest arrangements are excluded.12

Second, the court may order cross-class cramdowns on minority dissenting creditors where the requisite majority is obtained in respect of all creditors as a whole, provided that the scheme does not discriminate unfairly between the classes of creditors and is fair and equitable.13 Where the creditors in the dissenting class are unsecured creditors, the IRDA also now clarifies that the scheme will be considered to be unfair and unequitable where the scheme provides for a creditor with a claim or interest subordinate to the dissenting creditor class or member to receive or retain any property of the company on account of the subordinate claim or interest (and not just any property).14

Third, the court can also approve a pre-packaged scheme where it is satisfied that the requisite majority of creditors would have approved the scheme even though no meeting of creditors has been held,15 therefore saving time and costs.

Fourth, the court is empowered to confer various levels of 'super-priority' for rescue financing in certain circumstances.16 To obtain an order under Section 67(1)(a) of the IRDA, the applicant must show that it has expended reasonable efforts to secure other types of financing without super-priority.17 For an order under Section 67(1)(b) of the IRDA, the debtor must demonstrate that reasonable efforts have been undertaken to explore other types of financing without priority status.18 Evidence must be placed before the court of, for example, failed negotiations.19 Other considerations include whether:

  1. the proposed financing is in the exercise of sound and reasonable business judgment;
  2. alternative financing is available on any other basis;
  3. such proposed financing is in the best interests of the creditors;
  4. any better proposals are before the court;
  5. the proposed financing is necessary to preserve the assets of the estate and is necessary, essential and appropriate for the continued operation of the debtors' business;
  6. the terms of the proposed financing are fair, reasonable and adequate; and
  7. the financing agreement was negotiated in good faith and at arm's length.20

Fifth, restrictions on the operation of 'ipso facto' clauses applicable during the period where scheme of arrangement proceedings have been commenced, until they are concluded, have been introduced through the IRDA, which we discuss further in Section III.i.

Judicial management

Part 7 of the IRDA sets the statutory framework for judicial management. Judicial management may be utilised where a company is, or is likely to become, unable to pay its debts,21 where there is a reasonable probability of rehabilitating the company (i.e., as a tool for corporate rescue) or where the interests of the creditors will be better served than in a winding up (i.e., to carry out a more advantageous realisation of a company's assets than would be possible in a winding up).22 In judicial management, a judicial manager, who is appointed to replace the company's existing management, is empowered to do all such things as may be necessary for the management of the affairs, business and property of the company.23 After a judicial management order is made, the judicial manager will formulate a statement of proposals for the rehabilitation of the company or the realisation of its assets, which must be approved by the company's creditors.24

A statutory moratorium arises automatically upon an application being made for judicial management,25 which is extended upon the making of a judicial management order.26 As in the scheme of arrangement enhanced moratorium, the judicial management moratorium restrains secured creditors from enforcing their security. The commencement and continuation of certain types of proceedings as prescribed by regulations is excluded from the effect of the both the automatic and the extended moratorium.27 For now, admiralty proceedings and security interest arrangements are excluded.28

Super-priority for rescue financing is also available in the judicial management regime.29

The IRDA introduced a number of new mechanisms and procedures in relation to the judicial management regime.

First, it is now possible to place a company into judicial management or interim judicial management without a court order. A company can now be placed into judicial management by way of a resolution of a majority in number and value of creditors present and voting at a meeting convened for the same purpose.30 The company can also appoint an interim judicial manager if such appointment is authorised by the members of the company or a resolution of the board of directors (where authorised by the company's constitution),31 provided that the meeting of creditors to consider a resolution to place the company into judicial management is held not later than 30 days after the lodgement of the statutory declaration by the interim judicial manager under Section 94(3)(e) of the IRDA.32 Once the company is placed into judicial management, the judicial management process continues in the same manner as a court-ordered judicial management.

Second, the IRDA now expressly provides that a judicial manager may assign proceeds of actions under Sections 224, 225, 228, 238, 239 or 240 of the IRDA (relating to transactions at undervalue, unfair preferences, extortionate credit transactions, fraudulent trading, wrongful trading and assessment of damages against delinquent officers respectively) to a third party.33

Third, the IRDA now no longer provides that a judicial manager of a company shall be personally responsible on any contract entered into or adopted by him in the carrying out of his functions.34

Fourth, restrictions on the operation of 'ipso facto' clauses applicable during the period where judicial management proceedings have been commenced, until they are concluded, have been introduced through the IRDA, which we discuss further in Section III.i.

Liquidation

Part 8 of the IRDA sets the statutory framework for liquidation of companies in Singapore. A company may be wound up compulsorily by the court or voluntarily.35 In a compulsory liquidation, parties with standing under the IRDA, including creditors of a company36 and directors,37 may apply to the court for an order that a company be wound up. By default, an applicant must nominate a licensed insolvency practitioner to be the appointed liquidator, and can only nominate the 'official receiver' if the applicant has taken reasonable steps, but is unable, to obtain the consent of a licensed insolvency practitioner to be appointed as liquidator.38

The IRDA provides a list of grounds upon which the court may make an order to wind up a company,39 including that the company is 'unable to pay its debts'.40 A statutory presumption that the company is unable to pay its debts arises if (1) a statutory demand for a sum exceeding S$15,000 has been duly issued to the company and the company for three weeks thereafter neglects to pay the sum or to secure or compound for it to the creditor's reasonable satisfaction, the company is deemed to be unable to pay its debts;41 or (2) if an execution or other process issued on a judgment of any court against the company is returned unsatisfied in whole or in part, the company is also deemed to be unable to pay its debts.42

The creditor can also prove that the company is unable to pay its debts (including contingent and prospective debts, if any).43 For this purpose, the test is whether the company's current assets exceed its current liabilities such that it is able to meet all debts as and when they fall due within a 12-month timeframe (i.e. the 'cash-flow' test).44

The court may make an order to stay or restrain further proceedings against the company (including the enforcement of security) at any time after the making of a winding-up application.45 Further, upon the winding-up order being made or appointment of a provisional liquidator, no action or proceeding may be commenced or proceeded with without the leave of the court.46

In a voluntary liquidation, the court need not get involved. There are two types of voluntary liquidation – a creditors' voluntary liquidation (CVL) and a members' voluntary liquidation (MVL). As a matter of procedure, both CVL and MVL are commenced by the company resolving by special resolution (i.e., by a majority of not less than three-quarters) that it be wound up voluntarily.47 If the company's directors are able to make a declaration that the company will be able to pay its debts in full within a period not exceeding 12 months from the commencement of winding up, the liquidation begins as an MVL.48 If not, the liquidation begins as a CVL. A key difference between the two is that in a CVL, the company must convene a meeting of creditors,49 where the creditors will be able to nominate a liquidator that will prevail over the company's nomination.50

In addition, the IRDA introduces the following new provisions to complement the present winding up regime.

First, it is possible to trigger the early dissolution of a company where realisable assets of the company are insufficient to cover the expenses of winding up, and the affairs of the company do not require further investigation.51 As a safeguard, a 30-day notice of the early dissolution must be given to, amongst others, creditors of the company.52

Second, similar as in the case of judicial management, the IRDA now expressly provides that a liquidator may assign proceeds of actions under Sections 224, 225, 228, 238, 239 or 240 of the IRDA (relating to transactions at undervalue, unfair preferences, extortionate credit transactions, fraudulent trading, wrongful trading and assessment of damages against delinquent officers respectively) to a third party.53

Third, the court is now empowered under the IRDA to terminate a winding-up order and order the resumption of the management and control of the company by its officers.54

ii Statutory avoidance provisions and clawback

Any disposal of the company's property made after the commencement of winding up is void,55 though the court can prospectively or retrospectively validate such disposal.56

Additionally, certain transactions entered into by the company prior to the commencement of liquidation may be void or voidable. An 'unfair preference', which is a transaction that has the effect of putting a creditor in a better position than the creditor would otherwise have been in the event of the company's insolvency had the preference not been given, may be set aside if the transaction was entered into in the year preceding the commencement of winding up.57 Where the person preferred is a 'person connected with the company' (including directors of the company), this period is two years.58 An unfair preference must have been made with the intention to prefer – an intention that is presumed if the transaction is entered into with a person connected with the company.

An 'undervalue transaction', including transactions that were entered into for no consideration, or for a value of which (in money or money's worth) is significantly less than the value (in money or money's worth) of the consideration provided,59 may be set aside if entered into within the three years preceding the commencement of winding up or judicial management, and the company was unable to pay its debts or became unable to pay its debts because of the transaction.60 Where the transaction is entered into with a 'person connected with the company', there is a presumption that the company was unable to pay its debts or became unable to pay its debts because of the transaction.61 However, the transaction will not be set aside if it is proven that the transaction was entered into in good faith for the purpose of carrying on the company's business, and there were reasonable grounds for believing that the transaction would benefit the company.62

A floating charge created within the period of one year preceding the commencement of the winding up or judicial management,63 or within the period starting on the commencement of the judicial management and the date the company enters judicial management,64 is invalid to the extent of the value of the consideration (consisting of money paid, goods or services supplied, or discharge or reduction of debt of the company) for the charge.65 Where the floating charge is created in favour of a 'person connected with the company', this period is two years.66

iii The position of secured creditors

When entering into a loan transaction with a company that is insolvent or near insolvency, secured creditors should be mindful of the statutory avoidance provisions discussed in Section II.ii.

Further, any creditor intending to secure the debt with a floating charge should take care to ensure that the floating charge is registered within 30 days of its creation, failing which the floating charge is void as against a liquidator and any creditor of the company.67

The moratoria that apply to restrain the enforcement of security in schemes of arrangement, judicial management and liquidation are discussed in Section II.i.

As to the ranking of creditors in distribution, a creditor with a registered floating charge is subordinated to a creditor with a fixed charge and certain statutory preferential debts, but ranks ahead of unsecured creditors.68

A secured creditor must realise its security within 12 months from the commencement of winding up or judicial management in order to be entitled to claim interest on secured debt (a similar provision also applies in judicial management).69

iv Directors' duties in insolvency

A director is under a duty to act honestly and use reasonable diligence.70 Where the company is insolvent or near insolvency, directors must additionally take into account the interests of the company's creditors to ensure the company's assets are not dissipated.71 As long as there are reasons to be concerned that the creditors' interests are or will be at risk, directors ought to have due regard to their interests.72

Any person who was party to the company trading wrongfully may be declared personally liable for the company's debts or liabilities,73 and guilty of a criminal offence of wrongful trading.74 A company trades wrongfully if it incurs debts or liabilities without reasonable prospect of meeting them in full when insolvent, or it becomes insolvent by reason if incurring such debts or liabilities.

Any person who has been found to have been knowingly party to the company carrying on business with the intent to defraud creditors or for a fraudulent purpose may be held personally liable for all the company's debts and liabilities,75 and guilty of a criminal offence of fraudulent trading.76

Further, while the statutory avoidance provisions discussed in Section II.ii are not per se expressed to impose duties on directors, a director would likely be liable for a breach of fiduciary duties where there has been an adverse finding under the statutory avoidance.77 Claims for breaches of common law fiduciary duties may be brought, notwithstanding that the relevant time limit under statutory avoidance provisions has passed.78

Recent legal developments

i Ipso facto clauses and regulation of insolvency practitioners

A number of the changes to the insolvency and restructuring legal framework under the IRDA have been discussed above in Section II. One key development has been the introduction of a restriction on the operation of 'ipso facto' clauses. Under the latter, where a company has commenced proceedings for the approval of a scheme of arrangement, a statutory moratorium in aid of a scheme of arrangement, or judicial management, or has lodged a notice of appointment of an interim judicial manager, the company's counterparties may not terminate or amend the contract, claim accelerated payment or forfeiture under the contract, or terminate or amend any right or obligation under the contract by reason only that such proceedings have been commenced, or the company is insolvent, until the conclusion of such proceedings.79 The effect of the prohibition is suspensory for the pendency of the proceedings only, and does not render the relevant clause or contract void. The prohibition does not apply to certain contracts, such as eligible financial contracts, contracts of national or economic interest, or commercial ship charters,80 or where winding up proceedings have been commenced in respect of the company.

The IRDA also introduced a regulatory framework for insolvency practitioners who must now be licensed in order to act as a liquidator, judicial manager or receiver.81 Under the above licensing regime, the Ministry of Law's Licensing and Regulation of Insolvency Practitioners Division oversees, among other things, the grant and renewal of insolvency practitioner's licences, the maintenance of a register of licensed insolvency practitioners in Singapore, the promotion and maintenance of professional standards of insolvency practitioners, investigating complaints, and enforcement actions against errant insolvency practitioners.

ii Case law

Schemes of arrangement: key developments

In Re Design Studio Group Ltd & other matters [2020] SGHC 148,82 the Singapore court confirmed that a debt roll-up was permissible under the Singapore super-priority regime, i.e. super-priority could be granted to rescue financing that was used to pay off existing pre-petition debt. A relevant consideration was that there was no creditor opposition, and only a minority of the proposed funding would be used to repay pre-petition debt, whereas the majority would be used to create real value.

In Re PT MNC Investama TBK [2020] SGHC 149, the Singapore court ruled for the first time that a foreign company with securities listed on the Singapore Stock Exchange had a 'substantial connection' to Singapore, and was therefore liable to be wound up in Singapore and to apply for a statutory moratorium in aid of a scheme of arrangement.83

In an unreported case,84 the Singapore Court has, for the first time, ruled on the basis of when an intended scheme may be considered to be feasible for the purposes of an application for a statutory moratorium before a scheme has been proposed.85 In this regard, the Court rejected the application because it considered that the intended scheme was not feasible – the company had experienced financial difficulties a year before the moratorium hearing but had not applied for the moratorium. By the time of the application, bank lenders had terminated the company's banking lines, and the company's financial position had deteriorated too severely.

In another unreported case, the Singapore court has approved the first pre-packaged scheme of arrangement.86

Judicial management: key developments

In the first reported decision of an application made to court for relief on grounds that the company's affairs, business and property have been managed in a manner that was unfairly prejudicial to the members, the Court found that judicial managers are given great leeway to exercise commercial judgment, and should only be disputed upon evidence of exceptional circumstances, such as plainly wrong, unfair or perverse conduct.87

Winding up: key developments

The Court affirmed that the 'estate costs rule' is part of Singapore law, that is, where a liquidator decides to continue legal proceedings which were commenced before the winding up order of the company against a defendant, and the defendant ultimately succeeds in the legal proceedings, the successful defendant is entitled to be paid its costs in priority to the other general expenses of the liquidation, including the remuneration and expenses of the liquidator.88

Where a liquidator applies for court authorisation to compromise any debts or liabilities of the company, the court must satisfy itself that the terms of the compromise are in the interests of the company.89 The court has issued some guidelines in this exercise.

Covid-19 temporary relief measures and simplified insolvency programme

With the onset of the global covid-19 pandemic, the Singapore government enacted a number of measures to pre-empt and avert an expected increase in corporate insolvencies in Singapore.

In last year's edition, we discussed interim provisions enacted in the COVID-19 (Temporary Measures) Act 2020 (the COVID-19 Act), which was enacted in April 2020 and was intended to address and mitigate certain economic and social consequences arising from the ongoing global covid-19 outbreak.

Temporary relief during the prescribed period for the inability to perform 'scheduled contracts'90 entered into before 25 March 2020,91 where such obligation was to be performed on or after 1 February 2020,92 was extended to 30 June 2021 for certain types of 'scheduled contracts' relating to agreements for housing and commercial development, and 30 September 2021 for certain types of 'scheduled contracts' relating to construction or supply contracts.93 The party seeking relief must show that the inability to perform an obligation under the scheduled contract is to a material extent caused by a 'COVID-19 event' (defined as 'the COVID-19 epidemic or pandemic' or 'the operation of or compliance with any law of Singapore or another country or territory, or an order or direction of the Government or any statutory body, or of the government or other public authority of another country or territory, being any law, order or direction that is made by reason of or in connection with COVID-19').94

Subsidiary legislation has been introduced under Part 4 of the COVID-19 Act on alternative arrangements for meetings of creditors that arise in connection with winding up or judicial management.95

Other aspects of temporary relief expired with effect from 20 October 2020. These included the following:

  1. First, during the period from 20 April 2020 to 19 October 2020, a Singapore company was only deemed to be unable to pay its debts if a creditor serves a statutory demand in a sum exceeding S$100,000 (an increase from the then-threshold of S$10,000, or, from 30 July 2020 onwards, S$15,000), and the company neglected to pay the sum or secure or compound for it to the reasonable satisfaction of the creditor within six months (an increase from the usual period of 21 days).96
  2. Second, during the period from 20 April 2020 to 19 October 2020, the COVID-19 Act provided that, for the purposes of the liability for insolvent trading, an officer may have a defence if the debt is incurred:
    • in the ordinary course of the company's business;
    • during the prescribed period; and
    • before the appointment of a judicial manager or liquidator.97 Officers remained liable for the offence of fraudulent trading.

The Re-Align Framework to Renegotiate Contracts for Business Significantly Impacted by COVID-19 was also introduced to allow small businesses and individuals significantly impacted by covid-19 to renegotiate selected contracts by way of mutual agreement.98 The last day to serve a notice for relief under this framework was 26 February 2021. The simplified insolvency programme was also introduced with effect from 29 January 2021 by way of amendments to the IRDA, and will be in effect until 28 July 2021 (subject to any extensions). Under this programme, micro companies with annual revenue of less than S$1 million, and small companies with annual revenue of less than S$10 million, will be able to avail themselves of a simplified debt restructuring programme to rehabilitate a viable business or, where the company has ceased to be viable, a simplified winding-up programme to wind up the company in a quick, efficient and low-cost manner.99

Significant transactions, key developments and most active industries

2020 saw the end of efforts, without success, by financially distressed home-grown water and energy solutions provider Hyflux Limited to seek creditors' approval for a proposed scheme of arrangement and restructuring plan. Following long, drawn-out proceedings spanning two and a half years (discussed in previous editions), during which time the statutory moratorium was extended 12 times, the Court placed Hyflux Limited into judicial management on 16 November 2020.100 In June 2021, Hyflux's judicial managers filed an application to wind up Hyflux Limited, expressing the view that a debt restructuring could no longer be achieved and that the remaining value of the company would be best realised in a liquidation.101

Upstream oil and gas firm KrisEnergy, which was discussed in last year's edition when it obtained a debt moratorium, announced that its restructuring had become effective with effect from 15 February 2021, after the Court sanctioned its scheme.102 On 4 June 2021, however, the company filed a winding-up petition in the Cayman Islands stating that it was unable to pay its debts and would proceed to liquidation.103

Meanwhile, Hin Leong Trading Pte Ltd (Hin Leong), which was discussed in last year's edition, was wound up following a period of judicial management.104 Meanwhile, the judicial management of Hin Leong's sister companies, Ocean Tankers (Pte) Ltd and Xihe Holdings Pte Ltd, remain ongoing as at the time of writing.

The impact of the covid-19 pandemic in 2020 also saw the liquidation of Robinson & Company (Robinsons), an iconic retail chain operating in Singapore and Malaysia with a 162-year history. Robinsons was part of the Dubai-headquartered Al-Futtaim Group.105

International

Following Singapore's adoption of the Singapore Model Law, Singapore courts have been empowered to grant recognition for foreign main or non-main proceedings in accordance with the UNCITRAL Model Law. Foreign main proceedings qualify for more extensive relief than foreign non-main proceedings – for example, an automatic stay and suspension of actions or proceedings against the debtor's property arises upon recognition of a foreign main proceeding.

The enhanced moratorium in a scheme of arrangement (see Section II.i), which may be expressed to have in personam worldwide effect, has also raised interesting questions on how foreign courts may view such a moratorium. An English court has recognised Singapore's extraterritorial moratorium.106 On the other hand, a Hong Kong court doubted that Hong Kong courts would be able to recognise the effect of such an extraterritorial moratorium in Hong Kong (which has not enacted the UNCITRAL Model Law).107

The Modalities of Court-to-Court Communication published by the Judicial Insolvency Network were implemented in Singapore, and supplements the Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters.108 These provide for the mechanics of communication between the Singapore and foreign courts (including joint hearings and appearances in court), allowing the Singapore courts to effectively manage cross-border insolvency proceedings.

Future developments

Singapore's continuous efforts to promote itself as a restructuring hub are expected to contribute to the uptick in restructuring and insolvency activity in Singapore and the region. The first year of the IRDA being in force has been instrumental in demonstrating the attractiveness of restructuring centred in Singapore, compared with other comparable regimes in the region and elsewhere in the world. Future developments will be watched closely by the relevant stakeholders including lenders, borrowers and insolvency practitioners.

Footnotes

1 Kenneth Lim Tao Chung is a partner and Wong Pei Ting is a senior associate at Allen & Gledhill LLP.

2 For example, the Insolvency, Restructuring and Dissolution (Corporate Insolvency and Restructuring) Rules 2020, the Insolvency, Restructuring and Dissolution (Court-Ordered Winding Up) Rules 2020, and the Insolvency, Restructuring and Dissolution (Judicial Management) Rules 2020.

3 Section 210(1) of the Companies Act.

4 Section 210(3AB)(c) of the Companies Act.

5 Sections 210(3AB)(a) and 210(3AB)(b) of the Companies Act.

6 Section 210(10) of the Companies Act.

7 Sections 64(8) and 64(14) of the IRDA. This is unless the company has previously made an application for a moratorium under Section 64(1) of the IRDA within the period of 12 months immediately before the date of the present application, to which Section 64(8) of the IRDA applied – see Section 64(9) of the IRDA.

8 Sections 64(1)(e) and 64(8)(e) of the IRDA.

9 Section 64(5) of the IRDA.

10 Section 65 of the IRDA.

11 Section 64(12) of the IRDA.

12 As prescribed in the Insolvency, Restructuring and Dissolution (Prescribed Arrangements and Proceedings) Regulations 2020.

13 Section 70(3)(c) of the IRDA.

14 Section 70(4)(b)(ii)(B) of the IRDA.

15 Section 71 of the IRDA.

16 Section 67 of the IRDA.

17 Re Attilan Group Ltd [2018] 3 SLR 898 (Re Attilan), interpreting the predecessor Section 211E(1)(a) of the Companies Act.

18 Re Attilan,, interpreting the predecessor Section 211E(1)(b) of the Companies Act.

19 Re Attilan.

20 See further at Re Attilan.

21 Section 90(a) of the IRDA.

22 Section 90(b) of the IRDA.

23 Section 99(3)(a) of the IRDA.

24 Sections 107 and 108 of the IRDA.

25 Section 95 of the IRDA. This is unless the company has previously made an application for a judicial management order, or lodged a written notice of appointment of an interim judicial manger under Section 94(5)(a) of the IRDA within the period of 12 months immediately before the date of the present application, to which Section 95(1) of the IRDA applied – see Section 95(2) of the IRDA.

26 Section 96(4) of the IRDA.

27 Sections 95(3)(b) and 96(5)(b) of the IRDA.

28 As prescribed in the Insolvency, Restructuring and Dissolution (Prescribed Arrangements and Proceedings) Regulations 2020.

29 Section 101 of the IRDA.

30 Section 94(11)(d) of the IRDA.

31 Section 94(3)(a) of the IRDA.

32 Section 94(7) of the IRDA.

33 Section 99(4) of the IRDA read with paragraph (f) of the First Schedule to the IRDA.

34 Section 102 of the IRDA. This is as compared with the predecessor at Section 227(I) of the Companies Act.

35 Section 119 of the IRDA.

36 Section 124 of the IRDA.

37 Section 124(1)(b) of the IRDA. This is as compared with the predecessor at Section 253 of the Companies Act, which did not include directors of the company.

38 Section 135(3) of the IRDA.

39 See Section 125 of the IRDA for the full list.

40 Section 125(1)(e) of the IRDA.

41 Section 125(2)(a) of the IRDA. This is up from S$10,000 under the predecessor Section 254(2)(a) of the Companies Act. Note that temporary relief measures enacted under the COVID-19 (Temporary Measures) Act 2020, introduced in light of the covid-19 outbreak, were in place from 20 April 2020 to 19 October 2020. These temporary measures provided that a company will only be deemed to be unable to pay its debts if a creditor serves a statutory demand in a sum exceeding S$100,000, and the company neglects to pay the sum or secure or compound for it to the reasonable satisfaction of the creditor within six months.

42 Section 125(2)(b) of the IRDA.

43 Section 125(2)(c) of the IRDA.

44 Sun Electric Power Pte Ltd v. RCMA Asia Pte Ltd (formerly known as Tong Teik Pte Ltd) [2021] SGCA 60.

45 Section 129 of the IRDA.

46 Section 133(1) of the IRDA.

47 Section 160(1)(b) of the IRDA.

48 Section 163(1)(b) of the IRDA.

49 Section 166 of the IRDA.

50 Section 167(1) of the IRDA.

51 Sections 209(1)(c) and 210(1) of the IRDA.

52 Sections 209(3) and 210(3) of the IRDA.

53 Sections 144(1)(g) and 177(1)(a) of the IRDA.

54 Section 186 of the IRDA. This is as compared with the predecessor Section 279(1) of the Companies Act, which only empowered the Court to order that a winding up be stayed 'altogether or for a limited time'. In practice, the power to stay the winding up altogether operates similarly to the termination of a winding up.

55 Section 130 of the IRDA.

56 Centaurea International Pte Ltd (in liquidation) v. Citus Trading Pte Ltd [2017] 3 SLR 513.

57 Sections 225 and 226(1)(c) of the IRDA. This has been increased from six months under the previous Companies Act regime.

58 Section 226(1)(b) of the IRDA.

59 Section 224 of the IRDA.

60 Sections 226(1)(a) and 226(2) of the IRDA. This has been decreased from five years under the previous Companies Act regime.

61 Section 226(3) of the IRDA.

62 Section 224(4) of the IRDA.

63 Section 229(2)(a) of the IRDA. This is as compared with the predecessor Section 330 of the Companies Act, under which a floating charge would be invalid if entered into within six months of the commencement of the winding, unless it was proved that the company was solvent immediately after the creation of the charge.

64 Section 229(2)(c) of the IRDA.

65 Section 229(1) of the IRDA.

66 Section 229(2)(b) of the IRDA.

67 Section 131(3)(g) of the Companies Act.

68 Section 203 of the IRDA.

69 Section 223 of the IRDA.

70 Section 157(1) of the Companies Act.

71 Liquidators of Progen Engineering Pte Ltd v. Progen Holdings Ltd [2010] 4 SLR 1089.

72 Dynasty Line Ltd (in liquidation) v. Sukamto Sia and another and another appeal [2014] 3 SLR 277.

73 Section 239 of the IRDA. This replaces the concept of insolvent trading under the predecessor Sections 339(3) and 340(2) of the Companies Act.

74 Section 239(6) of the IRDA.

75 Section 238(1) of the IRDA.

76 Section 238(4) of the IRDA.

77 Living the Link Pte Ltd (in creditors' voluntary liquidation) v. Tan Lay Tin Tina [2016] 3 SLR 621.

78 Parakou Investment v. Parakou Shipping Pte Ltd (in liquidation) [2018] 1 SLR 271.

79 Section 440 of the IRDA.

80 See the full list at Section 440(5) of the IRDA.

81 Part 3 Division 3 of the IRDA.

82 The case concerned Section 211E of the Companies Act, which is in pari materia to Section 67 of the IRDA.

83 The case concerned Sections 211B and 351 of the Companies Act, which are in pari materia to Sections 64 and 246 of the IRDA respectively.

84 Global Restructuring Review: 'Moratorium application dismissed as unfeasible in Singapore' (23 March 2021) https://globalrestructuringreview.com/moratorium/moratorium-application-dismissed-unfeasible-in-singapore.

85 Under Section 64(4)(b) of the IRDA, where a company files an application for a moratorium under Section 64(1) of the IRDA before it has proposed a scheme, the company must file a description of the intended scheme with sufficient particulars to enable the court to assess whether the intended scheme is feasible.

86 Global Restructuring Review: 'First pre-pack scheme approved under Singapore's IRDA' (25 January 2021) https://globalrestructuringreview.com/financial-restructuring/first-pre-pack-scheme-approved-under-singapores-irda.

87 Re HTL International Holdings Pte Ltd [2021] SGHC 86, considering Section 227R of the Companies Act, which is in pari materia to Sections 115(1)(a) and 115(1)(b) of the IRDA.

88 An appeal against this decision was dismissed on grounds that the appeal was had been rendered hypothetical and academic – the parties had reached a settlement of their dispute: Tan Ng Kuang Nicky (the duly appointed joint and several liquidator of Sembawang Engineers and Constructors Pte Ltd (in compulsory liquidation)) and others v. Metax Eco Solutions Pte Ltd [2021] 1 SLR 1135.

89 Re Seshadri Rajagopalan and another [2020] SGHC 245, considering Section 272(1)(d) of the Companies Act, which is in pari materia to Section 144(1)(d) of the IRDA.

90 These are listed in the First Schedule of the COVID-19 Act: (1) certain contracts for grants of a loan facility secured against any commercial or industrial immovable property, or granted to an 'enterprise' (being companies where not less than 30 per cent of its shares or other ownership interest are held by Singapore citizens or permanent residents, and the turnover of the group (within the meaning of the applicable Accounting Standards) to which it belongs does not exceed S$100 million in the latest financial year); (2) hire purchase agreements or conditional sales agreements; (3) event contracts; (4) tourism-related contracts; (5) construction or supply contracts or performance bonds or equivalent granted pursuant construction or supply contracts; (6) leases or licences of non-residential immovable property; or (7) options or agreements with housing developers for the purchase of a unit of housing accommodation.

91 The rationale at setting the cut-off point of 25 March 2020 is that it is one day after the Singapore government introduced tighter safe-distancing measures to reduce the further spread of covid-19, such that parties that nevertheless knowingly entered into contracts after such date should not seek help under the COVID-19 Act: See the Ministry of Law, Second Reading Speech by Minister for Law, Mr K Shanmugam, on the COVID-19 (Temporary Measures Bill) (7 April 2020) https://www.mlaw.gov.sg/news/parliamentary-speeches/second-reading-speech-by-minister-for-law-mr-k-shanmugam-on-the-covid-19-temporary-measures-bill (accessed on 19 May 2020).

92 The rationale at setting the cut-off point of 1 February 2020 is that this is the date when the impact of covid-19 started to be significantly felt in Singapore: See the Ministry of Law, Second Reading Speech by Minister for Law, Mr K Shanmugam, on the COVID-19 (Temporary Measures Bill) (7 April 2020) https://www.mlaw.gov.sg/news/parliamentary-speeches/second-reading-speech-by-minister-for-law-mr-k-shanmugam-on-the-covid-19-temporary-measures-bill (accessed on 19 May 2020).

93 See the COVID-19 (Temporary Measures) (Extension of Prescribed Period) No. 2 Order 2021.

94 See further in Part 2 of the COVID-19 Act.

95 The COVID-19 (Temporary Measures) (Alternative Arrangements for Meetings) (Corporate Insolvency) Order 2020.

96 See Section 22(1) of the COVID-19 Act.

97 See Section 22(2) of the COVID-19 Act.

98 Ministry of Law, 'Re-Align Framework to Renegotiate Contracts for Businesses Significantly Impacted by COVID-19' https://www.mlaw.gov.sg/realign/re-align-framework.

99 Parts 5A and 10A of the IRDA.

100 Global Restructuring Review: 'Borelli Walsh appointed as Hyflux enters judicial management' (16 November 2020) https://globalrestructuringreview.com/financial-restructuring/borrelli-walsh-appointed-hyflux-enters-judicial-management.

101 The Straits Times: 'Hyflux's judicial managers file court application to wind up company' (4 June 2021) https://www.straitstimes.com/business/companies-markets/hyfluxs-judicial-managers-file-court-application-to-wind-up-company.

102 Global Restructuring Review: 'KrisEnergy finalises restructuring in Singapore' (16 February 2021)

https://globalrestructuringreview.com/financial-restructuring/krisenergy-finalises-restructuring-in-singapore.

103 The Straits Times: 'KrisEnergy submits winding-up petition, says it is unable to pay its debts' (6 June 2021)

https://www.straitstimes.com/business/companies-markets/krisenergy-submits-winding-up-petition-to-court-says-unable-to-pay-its.

104The Straits Times: 'Hin Leong Trading, once one of Asia's top oil traders, to be wound up' (8 March 2021)

https://www.straitstimes.com/business/companies-markets/hin-leong-trading-once-one-of-asias-top-oil-traders-to-be-wound-up.

105 The Business Times, 'Robinsons Singapore throws in the towel after 162 years' (30 October 2020)

https://www.businesstimes.com.sg/consumer/robinsons-singapore-throws-in-the-towel-after-162-years

106 Discussed in the 2019 edition of this chapter; Global Restructuring Review: 'Creditors approve steel company's Singapore scheme after English recognition' (10 January 2020) https://globalrestructuringreview.com/article/1212836/creditors-approve-steel-company%E2%80%99s-singapore-scheme-after-english-recognition.

107 Discussed in the 2019 edition of this chapter; Re CW Advanced Technologies Limited [2018] HKCFI 1705.

108 This was discussed in the 2018 edition of this chapter.

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