Zhida Chen

We are thrilled to announce that we were successful in resisting bankruptcy proceedings brought against our client at first instance and on appeal to the Singapore High Court, with both judges agreeing with us that the Singapore Courts had no jurisdiction. We also had the awesome opportunity to work with co-counsel (Amy Seow from Adroit Law LLC) on both counts. Amy Seow This matter traversed several novel points of law in relation to bankruptcy jurisdiction. We cited case law from across the Commonwealth in support of our arguments on the standard of proof required under the various limbs of “ordinary residence”, “place of residence” and “carrying on business” under s 310 of IRDA. We are happy to have prevailed and to have secured a good result for our client! We would also like to thank you for your continued support as Shobna Chandran LLC crosses its 6-month mark. In these last few months, we were fortunate to have acted as instructed counsel on other several interesting and challenging insolvency and bankruptcy Court matters as follows, including: (A) Leave to Appeal and Permission to Adduce Further Evidence application to the Appellate Division of the High Court - awaiting decision on a point of law regarding such applications brought to contest the setting aside of a statutory demand application (B) In October 2023, just after we launched the firm, we argued a novel point of law under the COVID-19 Act and its intersection with provisions of the insolvency legislation before the High Court. Thank you for your support - we look forward to working with you and your clients on more complex and novel commercial litigation, insolvency, and appellate cases. Shayna Robinson #FearlessAdvocacy #Excellence #ComplexCommercialLitigation #AppellateAdvocacy #Insolvency #InstructedCounsel #Appeal #Success #ShobnaChandranLLC #Litigation #Jurisdiction

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A recent decision in the Singapore International Commercial Court sheds light on enforcement in the context of minority interest buyout orders (see below post by Dinesh Dhillon of Allen & Gledhill LLP). It appears that such a decision can increase the total expected pay-off for clients with minority oppression claims seeking buyout orders (by increasing the likelihood of successful enforcement). As a #valuer, what are the implications of this decision for the minority interest discount? Literature shows that jurisdictions with better minority shareholder protections (e.g. through increasing the likelhood of successfully enforcing a buyout order) generally have lower minority interest discounts.

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In a decision handed down by Wilson Chan J on 12 March 2024 in 𝘏𝘎 𝘗𝘳𝘰𝘱𝘦𝘳𝘵𝘺 𝘐𝘯𝘷𝘦𝘴𝘵𝘮𝘦𝘯𝘵 𝘏𝘒 𝘓𝘪𝘮𝘪𝘵𝘦𝘥 v 𝘊𝘩𝘦𝘯𝘨 𝘔𝘦𝘪 𝘏𝘰𝘭𝘥𝘪𝘯𝘨𝘴 𝘓𝘪𝘮𝘪𝘵𝘦𝘥 & 𝘖𝘳𝘴 [2024] HKCFI 750, the Court dismissed the plaintiff’s application for amendment of pleadings and joinder of the intended 4th defendant for a fraudulent conveyance claim. Importantly, whilst acknowledging that the test is whether there is a bona fide claim and a proper question to be tried as between the plaintiff and the intended defendant that is necessary or just and convenient for resolution between them as well as between the plaintiff and the defendants in the present proceedings, Wilson Chan J emphasized that joinder ought to be disallowed if the parties opposing establish that it is plain and obvious that the plaintiff has no case against the proposed defendant. He observed that, likewise, if the proposed amendments are bound to fail, no leave to amend should be granted. Read more at https://lnkd.in/gBGVEWMZ Jenkin Suen SC instructed by Deacons, acted for the Intended 4th Defendant. The full judgment of the Court of First Instance is accessible here: https://lnkd.in/gY9NJupU #DVC #DesVoeuxChambers #Casehighlight

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The Veil Stays Down When a Singapore company signs a contract governed by foreign law, it would scarcely anticipate that the mere fact of the contract being governed by foreign law could result in the overriding of its limited liability protections for its shareholders - exposing them to personal liability. That happened in the High Court's decision in Government of the City of Buenos Aires v HN Singapore Pte Ltd [2023] SGHC 13, where the High Court applied the foreign law of the contract to lift the defendant's corporate veil and hold its shareholder personally liable for breach of contract. This decision would have been fairly unsettling for company shareholders, who could unpredictably be liable for the company's debts, depending on the laws governing the contracts the company signed. However, the Court of Appeal has now reversed that decision in Nicholas Eng Teng Cheng v Government of the City of Buenos Aires [2024] SGCA 15 and held that generally, it should be the law of incorporation of the company that should apply to the issue of whether a company's corporate veil should be lifted – and not the law of the contract. The Court kept the veil of incorporation down in that case, and held that the shareholder was not personally liable on the contract. This is a welcome decision for Singapore companies and their shareholders. They are promised sufficient certainty on potential risks and liabilities when entering into foreign law-governed contracts and do not have to be on guard for potential avenues that the foreign law would allow for their separate legal personality to be ignored and their shareholders held liable. In this Prolegis LLC article, Associate Carrisa Low and I examine the Court of Appeal's judgment and offer some insights for both #companies and their #shareholders. #HSFProlegis #Prolegis #companylaw #litigation #SingaporeCourts

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When can disobedience of a court order lead to personal liability for directors? In this article, our partners, Meng Teck Teh and Yeong Yoong discuss the different scenarios a director may be liable for breaching a court order and the importance of recognizing the distinct scenarios. 

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The Limitation Act 1953 (“Act”) is often discussed regarding the time limit imposed for civil claims to commence. In our previous article, we discussed the Federal Court decision of Julian Chong Sook Keok & Anor v Lee Kim Noor & Anor [Civil Appeal] (No. 02(f)-63-10/2021(P)). Recently, the Court of Appeal had occasion to consider a different aspect of the computation of the limitation period in Bongsor Bina Sdn Bhd v SH Builders & Marketing Sdn Bhd [Civil Appeal] (No. W-02(C)(A)-2315-12/2022). This article shall discuss the decision of the Court of Appeal in determining whether the computation of the limitation period is stopped at the point when an action is first filed at Court but is stayed under Section 10 of the Arbitration Act 2005 (“AA 2005”) or shall the limitation clock only be stopped when the required arbitration proceedings are subsequently commenced. #LAWLens #court #arbitration Read more: https://lnkd.in/dbqPpRtU

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Hong Kong Litigation & Dispute Resolution partner Vincent Law contributed to the Hong Kong chapter of ‘Lexology Panoramic Gaming 2024’ which is now available online. This chapter provides a guideline and well-rounded insights on the latest legal rules, rights and issues concerning gaming in Hong Kong. Read the full chapter at: https://lnkd.in/gZUBG8vZ (subscription only) #Gaming #GamblingOrdinance #HongKong

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In Singapore, winding up proceedings will generally be stayed if there is a valid arbitration agreement between the parties, and there is a prima facie dispute falling within the scope of that agreement. This is an extremely low threshold (vs the higher triable-issue standard), which allows a debtor company to effectively stave off winding up applications. The Singapore Courts have been largely influenced by the Salford Estates line of cases in coming to this view. In this latest case, the Privy Council has now expressly over-ruled the Salford Estates line of cases, and reinstated the higher triable-issue standard. Of particular relevance is the PC's view that the presentation of a winding up petition in no way offends the parties' agreement to arbitrate, as the winding up petition is not the type of claim caught by the mandatory stay provision in the relevant arbitration legislation. Party autonomy is not undermined because seeking a liquidation is not something which the creditor has promised not to do. And by ordering a liquidation the court is not resolving anything about the debt, nor interfering with the resolution of any dispute about it. In fact, parties are more likely to agree to arbitration clauses if it does not impede a liquidation where there is no genuine or substantial dispute about the debt. #insolvency #winding up #arbitration

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This case reminded me how important it is to understand and marshal the facts. In law school and when I first started practicing some 18(!) years ago, I believed the role of the lawyer was to know the law. Makes sense. I mean it's in the name of the job, right? Well over time, I've come to believe that the lawyer must first understand the facts, not the law. Obviously the law is important and you have to know it. But it's the facts you have to know upside down and inside out, cold, first. Former very smart colleague of mine once said, "you can google the law, you can't google the facts of your case." I've never forgotten it! If you're at oral argument, or a conference, or a mediation, you have to be able to marshal the facts of your case almost instantly. No time to waste. Indeed, I've found that cases are won and lost entirely by the lawyer's ability to pull facts from the record quickly and accurately. I'm also reminded of another maxim another very smart colleague once told me: "When you have the law in your favor, pound the law. When you have the facts in your favor, pound the facts. When you don't have either, pound the podium." Wise words indeed!

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We all have several passions in life - travelling, partying, playing golf and so on. One of mine is writing and I started writing a column, Alter Ego in the Singapore Law Gazette, the only official publication of the The Law Society of Singapore. This was April 2002 and I interviewed numerous former lawyers who excelled in fields outside of law and then lawyers who are also pursuing other interests. The colum then evolved into reflections of the issues facing lawyers. I was surprised that the column took a life on its own when members of the legal profession came forward to speak to me at events sharing how the column has impacted them. Newly qualified lawyers shared that they have been reading the column since their days in law school. For me, it was only about pursuing my love for writing. I got to meet many interesting people like Mr Lee Kuan Yew, Professor Walter Woon, film maker Kevin Tong and people who influenced my thinking like Dany Leong and Avalyn Lim, LL.B, EMBA, PCC . 22 years is a long time and I took long breaks over the last few years from my writing. The column was also a platform not to only share my thoughts about topics like work-life balance and millenials before it became so hot topics; it also helped me to express my opinion and also watch how my views evolved. I have grown and I hope so has my writing through the years. In the last week during my recent hospital stay, one of the many thoughts that went through my mind was to return to writing the column. There is more to lawyering as I always feel and there is so much to share, learn, inflyence and inspire. This month's column is titled: Are we more than lawyers? The link to the column is in the Comments Section. This photo was taken in Mr Lee's office in the Istana during his interview in 2005.

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Reforming the Singapore Trust: Pushing or Breaking Boundaries? Kelvin Low and I are happy to share that a pre-print of our chapter in the next volume of the Asia-Pacific Trusts Law series ('Boundaries in Context') is now available on SSRN. Many thanks to Ying Khai Liew of the Melbourne Law School and TAMARUYA Masayuki of The University of Tokyo for their efforts in coordinating and editing this volume. Our contribution looks at the reforms to the trust legislation in Singapore since the millennium, including the Business Trusts Act, the Trust Companies Act, the amendments to the Trustees Act and the recent proposal to introduce non-charitable purpose trusts. The tricky process of law reform is an interesting setting in which to consider various ‘boundary problems’ in trusts. Can statutory reform refine or sharpen the unclear boundaries of a judge-made trust law rule? To what extent can the conceptual boundaries of the English trust be modified by statute? Do these reforms push the boundaries of the trust to better adapt it to modern circumstances? Or do they threaten to break the institution of the trust altogether?

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Court of Appeal explains law on notional add-back in ancillary relief proceedings In LCC v LTLA [2024] HKCA 406, the Court of Appeal clarified the law on the court’s jurisdiction to notionally add back wantonly and recklessly dissipated sums into a matrimonial pot. The judgment concerns an appeal from an ancillary relief judgment handed down on 24 June 2022 by Au-Yeung J (“Judge”), where the Husband (“H”) was ordered to pay the Wife (“W”) a lump sum of HK$292m. At trial, W said H incurred around HK$96.59m in gambling losses (“Gambling Losses”) after parties separated. W sought to have those Gambling Losses notionally added back into the matrimonial pot on grounds that H had wantonly and recklessly dissipated them. H said the Gambling Losses should not be added back because (i) W condoned his gambling; (ii) he only suffered HK$29.687m in gambling losses, not HK$96.59m; and (iii) in any event, HK$24,039,689 should be deducted from the Gambling Losses, because that amount was spent on various items, not lost to gambling. The Judge found that H’s evidence on the Gambling Losses was particularly unreliable, and rejected it. Her Ladyship went on to add back the Gambling Losses to the pot. H appealed. His appeal was primarily against the Judge’s decision to add back the Gambling Losses. Allowing the appeal, the Court of Appeal held that notional add-backs must be cautiously made, and an amount can only be notionally added back if there is clear evidence that it has been dissipated. There was no clear evidence that there had been wanton and reckless dissipation of the Gambling Losses by H. The full judgment can be viewed here: https://lnkd.in/d-iJcr9F Bernard Man SC and Cristian Tsang, instructed by Chaine Chow & Barbara Hung, acted for the Petitioner. Theresa Chow also acted for the Respondent Husband in the proceedings below.

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High Court Reviews Principles on Directors’ Remuneration In Ma King Huen v The Sincere Co, Ltd [2024] HKCFI 319, DHCJ Ashley Burns SC allowed the claims by the plaintiff (“P”) (founder of the Sincere Group) against the defendant (“D”) for unpaid director’s fees, wages and other emoluments. The judgment addresses a number of important principles concerning directors’ remuneration and the construction of articles of association. The dispute concerns whether P’s entitlement to remuneration under a letter of confirmation (“Letter”) is ultra vires and unenforceable. The Letter confirmed P’s appointment as Deputy Chairman and CEO and provided for P’s entitlement to salary and emoluments recommended by the Recommendation Committee (“RC”) from time to time. However, D’s articles of association envisage that the method of fixing directors’ remuneration would be determined at the annual general meeting. Reconciling conflicting English authorities, the Court held there is no general rule that there must be a wholesale implication of a company’s articles into a director’s service agreement. However, the Court accepted that the service agreement remains subject to and should be read with those provisions in the articles concerned with the appointment of directors, their terms of service, remuneration and powers and duties. The Court held that the Letter unambiguously shows that the RC’s recommendation, by itself and without more, gives P an entitlement to remuneration. This is also consistent with the power of D’s directors under the articles to delegate their remuneration-fixing power to committees. Accordingly, it was concluded that a subsequent board resolution passed by D, which purported to nullify the RC’s recommendation, would not affect P’s contractual entitlement to remuneration. The full judgment can be viewed here: https://lnkd.in/gi-4sEbU Anthony Chan SC and John Cheung, instructed by HFW (Holman Fenwick Willan), acted for the defendant.

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In the recent case of Foo Kian Beng v OP3 International Pte. Ltd. [2024] SGCA 10, the Singapore Court of Appeal laid down key principles regarding the scope of directors' duties to creditors, i.e. the "creditor duty". These principles serve as useful guidance not just for directors to understand how they should discharge their duties but also for creditors seeking to hold directors to account. Colleagues #RobChild, #TristanTeo, #ShreyaPrakash and I have co-authored an article to set out some practical guidance for creditors on ensuring that directors discharge the "creditor duty". See: https://lnkd.in/g4_sp3u6

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Our Khong Aik Gan, FCIArb and Lee Sze Ching (Ashley) have shared their thoughts on the recent Federal Court's decision on when the time starts to run for a tort action based on negligence. For more details, please refer to the article below.

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Partner Debby Lim and Senior Associate Samuel Pang successfully argued five applications before the Honourable Justice Aedit Abdullah on behalf of a group of companies in obtaining moratoria protection pursuant to Sections 64 and 65 of the Insolvency, Restructuring and Dissolution Act 2018 (the “IRDA”) in Re Picotin Pte Ltd and other matters [2024] SGHC 156. The applications were heavily contested by some of the landlords.   In his judgment, Justice Abdullah considered the following issues:   1) Whether the related companies are necessary and integral to the arrangement under sub-section 65(2)(c), and under 65(2)(d), whether the arrangements will be frustrated if actions against the related companies are not restrained.   2) Whether carve-outs should be allowed for the landlords to re-enter their properties.   The Court was persuaded by us that the related companies are indeed necessary and integral, and that the arrangements will be frustrated if actions against them are not restrained. Furthermore, the Court was also satisfied that carve-outs need not be granted at this time for the landlords’ claims, and that it suffices for conditions to be imposed to adequately protect their interests.   The decision is an important one as it provides illuminative guidance on the Singapore court’s approach to such carve-out applications as well as applications under section 65 of the IRDA generally.   Read the full judgment published by the Court https://lnkd.in/dExqC9j7 #Dentons #DentonsRodyk #SingaporeGlobalLawFirm #Insolvency #Restructuring #DissolutionAct #Singapore

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What are some of the worrying signs of financial abuse? 1. An elderly person, living with dementia, is malnourished, living in squalor and filth, with the sole child who is also the joint account holder of this elderly person's savings account stating that there is 'no money'. This is even though the elderly person has a few hundred thousand Singapore dollars of savings in the bank account. 2. An elderly person is always trying to borrow money from other relatives, even though they ought to have sufficient CPF payouts/pension monies for their needs. 3. A housewife has to submit receipts to her husband for reimbursements and is not allowed to have any money of her own. 4. A special needs adult hands their monies completely over to a 'friend' who is 'safeguarding' it for them, but where the 'friend' is not under any supervision of the OPG or even worse, if this monies are never released to the special needs adult when he/she wants them. Regrettably, all the above cases are true scenarios of cases that I know of or have heard about. Had a meaningful time at CNA with Andrea Azureene Heng discussing this important topic of financial abuse within the Singapore context 3 weeks back. Part of the work that STEP – Advising Families Across Generations is doing now under our GRP project. As part of our GRP (Global Representative Power) project, we call for governments to enact laws to allow for LPAs/EPAs/DPAs/CPAs and to also have a robust system to prevent financial abuse. Many countries already have laws to prevent and punish physical, emotional, psychological, and sexual abuse. Financial abuse is the last frontier for many. We need to get there soon! Lawrence Wong Sun Xueling Mark Walley, CDir Kelly Greig Paola Barbarino Shanti Abraham Farah Deba Mohamed Sofian

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Psephological Fact #4 Question - in December 1905 PM Arthur Balfour became the last PM to do what? Answer - to resign the government as a whole (ie not just his personal position as PM) without calling a general election! In 18th and 19th centuries - with elections personally expensive for candidates and a very loose “party” system - it was common for exhausted governments to resign, and a new government formed by the opposition using the same Parliamentary maths without a general election. In 1905 the Tories/Unionists had been in government for 17 of the previous 20 years. Despite a large majority the party was deeply divided on tariff reform, had various scandals (arising from the Boer War) and had been losing by-elections heavily. Rather than call a GE, Balfour (a cerebral philosophical sort of politician lacking the common touch) submitted the resignation of the government as a whole. The tactic wasn’t absurd in theory. The Liberal leader of the opposition - Sir Henry Campbell-Bannerman - was in his late 60s and was not a charismatic leader. 3 senior Liberal colleagues - Asquith, Grey and Haldane - had agreed in September 1905 a scheme between them that they wouldn’t serve in a HCB government unless he went to the Lords and became a “dummy” PM - leaving Asquith, Grey and Haldane to control the Commons. Balfour’s resignation of the government, therefore, was in the hope the Liberals would split and be unable to form an administration, giving the Tories/Unionists a boost. Good in theory but failed badly in practice. HCB accepted the premiership with enthusiasm and refused to move to the Lords. Grey refused to serve but when Asquith was offered the post of Chancellor of the Exchequer he accepted without requiring HCB to go to the Lords. The plot then collapsed and both Grey and Haldane joined the cabinet. Having successfully formed a government HCB then dissolved Parliament and won a landslide victory in January 1906. No other PM since has followed Balfour’s example of just resigning the government. Balfour will return in another psephological fact soon…

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The recent High Court case of Greylag Goose Leasing 1410 Designated Activity Company v P.T. Garuda Indonesia Ltd [2024] HCA 21 is a cautionary tale for commercial counterparties to arrangements with state owned companies, who subsequently want to wind up those companies to recover outstanding debts. Nicholas Anson and I discuss the High Court's recent decision in our latest article: https://lnkd.in/gHh-yWav #minterellison #insolvency #privateinternationallaw #auslaw

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