Christie, Hamish Alexander v Tan Boon Kian [2021] SGHC 62 – bankrupt’s payments to family members clawed back – unfair preference and undervalue transactions

Christie, Hamish Alexander (as private trustee in bankruptcy of Tan Boon Kian) v Tan Boon Kian and others [2021] SGHC 62 

Significance: The bankrupt made certain cheque payments to his family members in the clawback period prior to his bankruptcy. The trustee in bankruptcy applied to claw back these payments for being unfair preference (as two of the family members were also creditors of the bankrupt) and undervalue transaction (this was essentially a gift to his daughter which she used to pay for expenses for her wedding, which cost a total of about S$135,000).  The statutory presumption of unfair preference was not found to have been rebutted. The court found that it would not be justified to not order a claw back for the gift to the daughter as it would otherwise be tantamount to the bankrupt’s creditors footing the bill of the daughter’s “lavish wedding”.

Case: Okpabi v Royal Dutch Shell Plc [2021] UKSC 3 – suing foreign parent company for negligence

Significance: This case involves an interesting litigation strategy which has paid off up to this step in the proceeding.

Claimants in Nigeria sued the UK-domiciled parent company of a Nigerian-registered company for breach of common law duty of care on the basis that the parent exercised significant control over material aspects of the subsidiary’s operations and/or assumed responsibility for its operations, which allegedly failed to protect the appellants against the risk of foreseeable harm arising from its operations (oil spills).

UK Supreme Court granted the possibility of this claim and allowed the matter to proceed as a matter of jurisdiction.

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A Christian’s Reflection on Time

Experiencing Time

Since my baby was born, I have experienced time differently. No longer was it based on my scheduled plans and tasks down to the 15th minute, but the limited drops of time between feeding and soothing a wailing child. Time went by more swiftly and also more slowly. The minutes are short but the days are long. Yet, while time marched on chronologically, moments of significance punctuated time–marking certain times as sacred and others as ordinary.

The River of Time

People used to ask me how I manage my time, presumably because it appeared to them that I could juggle multiple commitments. Now, I ask myself the same question.

We cannot actually manage time. The river of time is not in our hands. The Scriptures demarcate a beginning and an end—the headwaters in Genesis from which the streams of life begin and the vast ocean of new things in Revelation. God sits apart from all this in the everlasting to everlasting.

Yet, He placed eternity in our hearts that while we swim against the tide of earthly time, we may ache and yearn for perpetual kingdomtide. We cannot fathom the complete journey that our time, or indeed the world’s time, will traverse. God appoints the times and seasons to demarcate one place from another, just as He sets the sun, and the stars and the moon in their place for us to experience the rhythms of trials and grace. Without the nights, there would be no mornings at which God’s mercies are renewed.

As the rivers of time cross mountains and valleys, our life stories are marked by God-written chapters, seasons and times. There’s a time to work and a time to rest, a time to be in the trenches and a time to be with our family, a time to profit and a time to furlough, a time to suffer and a time for healing, a time for conflict and a time for reconciliation. Kingdoms rise, leaders fall.

So, we are instructed to discern the times that we may prepare our minds and souls, and to know which way we must go and do the will of God.

Stewardship

This requires wisdom, which we may gain when we number our days and seek from the Lord. If time is a river, our lives are but a mist of vapour. Take a breath. Breathe out. In God’s reality, that’s it to us. From dust, God breathed His spirit and formed us.  And to dust we return. Still, He prepared the purposes our lives must fulfil.

When we understand this, we begin to value the time given to us and steward it well. For time is short, the days are darker, and soon it will be night.

We can redeem the time with wisdom to live intentionally by the things we ought to value. We value the things we lay our treasures on. Do we stake on this temporal world or the kingdom to come? Do we bet on Mammon or God? Do we seek noble loves or ignoble pleasures?

It becomes then not a question of how much more we can do, but what exactly we are supposed to do at the right time. Thirty-three years of building an army would count for nothing but three years of discipling, healing, teaching and witnessing culminating into a holy self-offered death changed everything. Discern the rhythms of the season. Cultivate routines. Begin with the end in mind. As if at the precipice of a waterfall surveying the impending journey before diving in, look at the way ahead and mark your time. Persist in the first things and first loves. At the appointed time, all things will come together.

It becomes then not a question of how much more time we have, but how faithfully we walk in step with God. The early ancestors lived more than 900 years but Enoch walked with God for only 365 years until he walked into heaven. We know nothing of his achievements save that he walked with God to His pleasure.

It becomes then not a question of our ability, but of calling. The apostles likely waited tables for a time until they recognised their uniquely appointed task was to teach the words of Jesus.

It becomes then not a question of productivity but of joining the divinely written story. Jesus began His ministry by taking a detour to enter Samaria to wait at a well for a socially outcast Samaritan woman. That woman would become the first evangelist, bringing her entire village to Jesus. In the Kingdom, subtraction paves the way for multiplication; a single death can reap a great harvest of new life.

It becomes then not a question of waiting impatiently for empty wishes, but waiting with hope in God, hope that drives action. For those who wait on God renew their strength–strength to act, to run, to fly according to God’s purposes, not our own.

We can do many good things but if they’re not of God, we labour in vain and they amount to nothing. We may even be spurned at the final time. And all the works will be burnt to ashes. Only the unseen fruit will survive the furnace. This is fruit borne of abiding in Jesus. That is walking in obedience to His word.

We need to walk in step with Jesus by taking His yoke upon us. Where He is, when He is, we must be. If we walk ahead, we unnecessarily burden ourselves. If we follow His pace, we will find it light, for He takes the weight of the world upon His shoulders. And also the weight of our anxieties and fears.

Ownership

Indeed, Jesus did so, bore our penalty, and ransomed our time. In that exchange, we rightfully no longer own our time. Jesus owns us and our lives. Yet, He does not own us as a harsh slave master. He liberates us to freedom. It does not mean an easy life. It does mean the wide pastures of grace to pursue the greater things. So, there are greater things we are urged to pursue in every season—prayer, thanksgiving and walking justly by faith expressed in love. Every hour may be marked by these.

Every moment we have is a moment belonging to Jesus. He is Lord over all, whether we acknowledge it or not. When we resist His sovereign grace, we will face resistance. When we let ourselves float on the baptismal waters of grace, we will enjoy His pleasure. Our task then is to believe and take hold of each moment. We may live each moment present before Him and ourselves and others, even while we look back and marvel at the tributaries traversed thus far and we look forward and yearn for the beautiful season promised to come.

Flowing Under Grace

One of my favourite memories is white water rafting in New Zealand. After crashing and tumbling on the rapids and desperately rowing with our pedals for a long time, we reached a stream where our instructor invited us to just enter the the water and float along. I nervously dipped into the stream and laid back on the surface of the water with my face looking up towards the blue sky. It was the most liberating and peaceful moment. I drank a few gulps of the crystal clear water and it was the most refreshing water. It felt like all was right with the world.

Perhaps this is what it could be like to flow in the river of time under the grace of God in step with the pace of God. Every moment we are in is already the place of God’s will. The choice we may make is to be there or not. When we choose to lean on His grace, we may find there flows too the river of life, streams of living water from which we drink until endless peaceful days become ours to enjoy.

Whether Managing Director or CEO has legal power or authority to borrow money or give security

Blasco, Martinez Gemma v Ee Meng Yen Angela [2020] SGHC 247

Significance: Singapore High Court, per Kannan Ramesh J, held that a managing director or CEO (acting or otherwise) did not, as a general rule, have the power (implied actual authority or apparent / ostensible authority) to borrow money or give security on behalf of the company by reason of his position. This was a context-sensitive issue and regard should be had to all the circumstances of the case: at [38].

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Jurong Aromatics Corp Pte Ltd v BP Singapore Pte Ltd [2018] SGHC 215 – Charges over receivables as security; contracts prohibiting assignment

In Jurong Aromatics Corp Pte Ltd (receivers and managers appointed) and others v BP Singapore Pte Ltd and another matter [2018] SGHC 215, the Singapore High Court considered the nature of charges and whether contractual clauses prohibiting assignments applied to prevent the charge from arising. The court also considered decrystallisation, estoppel, waiver, and whether insolvency set-off applied.

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Ma Hongjin v SCP Holdings Pte Ltd [2020] SGCA 106 – Doctrine of Consideration in Variation of Contracts Upheld

Singapore Law; Legal; Lawyer

Significance: five-person bench of the Singapore Court of Appeal refuses to abolish the doctrine and requirement of valid consideration for variation of contracts, while suggesting that contracting parties may expressly agree to dispense with the requirement for varying a particular contract.

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Retailer Insolvency and Rights of Goods Suppliers

It was reported that in the light of the liquidation of long-surviving departmental store Robinsons, goods suppliers have been experiencing issues with payments for sold consigned goods.

What has not been considered in these reports is that suppliers who consigned goods to Robinsons should consider if it is indeed a consignment at law and whether title or property of goods have passed to Robinsons, or if not then whether they can take back the goods.

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