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: .
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: .
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.
I read the Straits Times report “Investors cry foul over tree investments gone wrong” (25 February 2016) with sadness. My heart goes out to the many investors who put in their savings and hard earned money into the scam. In short, investors put in money into a Tropical Forestry Venture(S) Pte Ltd to invest in valuable tree saplings. Turns out to be a scam. The people behind the company disappeared with the cash. But what can be done for these investors to seek justice?
Continue reading “Tropical Forestry Venture Investment Scam: How to Obtain Recompense?”
The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd and another appeal  4 SLR 1182;  SGCA 53 – disclosure of professional fee arrangements to scheme creditors and the court
Significance: entities who act as Scheme Managers should take note of the duties and principles involved in implementing a Scheme as laid down by the SGCA in both judgments of RBS v TT International; the breach of duties may result in the Scheme being set aside and costs of the Scheme manager being forfeited.
- The company entered into an agreement with an entity owned by the scheme manager of the Scheme of Arrangement where the company was to pay the entity a success-based fee for professional services rendered upon successful implementation of the Scheme. However, this agreement was not disclosed to the scheme creditors and to the Court prior to the sanction of the Scheme.
- The Court of Appeal in this decision held that the agreement should have been disclosed so that scheme creditors could make an informed decision on whether to support the Scheme given the potentially large amount involved that could affect their financial interests: at .
- The Court held that a company to be subject to a Scheme had an obligation to disclose all material information to the scheme creditors, including contingent liabilities, and not use the device of ‘excluded creditors’ in a Scheme to keep actual or contingent liabilities hidden from other creditors: at -.
- The Scheme Manager likewise had an obligation to act in good faith to the scheme creditors and not mislead or suppress material information from them. He also has an obligation to not place himself in conflict of interest; where there is conflict, informed consent of the scheme creditors is required: at -.
- The Court emphasised the need for companies proposing schemes of arrangement and proposed scheme managers to be mindful of the interests of the creditors in discharging their duties, and to have “transparency … be the guiding principle of all corporate actions when creditors’ interests are affected, as is the case in a scheme of arrangement”: at -, .
- Generally, where there is a breach of duty to disclose material information by the company and the Scheme Manager, it would result in the Scheme being set aside and put to a fresh vote; the Scheme Manager would also have been deprived of his costs: at , .
- On the facts of this case, however, the Court decided not to set aside the Scheme because it had already been implemented for more than two (2) years and it was not practical to set it aside without causing more harm to the company and the creditors; instead, the parties are directed to reach an agreement on the appropriate amount of professional fees awarded for the Scheme Manager: at -.
- The Court further stated as obiter that “a commercial practice [in this case of the Scheme Managers disclosing success-based fee arrangements to scheme creditors or to the courts], no matter how widespread, does not have the force of law by dint of accident of vintage or absence of protest if it is contrary to legal principle”: at .