AFFERT RESOURCES PTE. LTD. (IN COURT COMPULSORY WINDING UP) v INDUSTRIES CHIMIQUES DU SENEGAL & Anor

[2024] SGHC 57 High Court (General Division) 28 February 2024 • HC/OS 544/2019 • 67 min read

13 cases cited (8 SG, 5 foreign) Cited by 1 case

Catchwords

Insolvency Law — Avoidance of transactions — Transactions at an undervalue — Whether it is appropriate to make a payment order Insolvency Law — Avoidance of transactions — Transactions at an undervalue — Whether a waiver is a transaction at an undervalue

Practice Areas

Insolvency Law

Judges (1)

Goh Yihan Delivered

Counsel (11)

Bih Li & Lee LLP Firm Drew & Napier LLC Firm Rajah & Tann Singapore LLP Firm Ang Leong Hao Counsel Applicant Bull Cavinder Counsel Respondent Darrell Low Kim Boon Counsel Applicant Kong Man Er Counsel Respondent Petrina Tan Heng Kiat Counsel Applicant Sia Bao Huei Counsel Applicant Tan Sih Si Counsel Respondent Wong Soon Peng Adrian Counsel Applicant

Parties (3)

Affert Resources Pte Ltd (in court compulsory winding up) Applicant Indorama Holdings BV Respondent Industries Chimiques du Senegal Respondent

Case Significance

Affert Resources Pte Ltd (in court compulsory winding up) v Industries Chimiques du Senegal and another [2024] SGHC 57 was decided by the General Division of the High Court on 28 February 2024, with judgment delivered by Goh Yihan J after a hearing on 28 November 2023. The applicant, Affert Resources Pte Ltd (in compulsory winding up), brought Originating Summons No 544 of 2019 under section 329 of the Companies Act (Cap 50) read with section 98 of the Bankruptcy Act (Cap 20), seeking to unwind a transaction said to be at an undervalue. The alleged transaction was a waiver of a debt of US$17,007,263.60 owed by the first respondent, Industries Chimiques du Senegal, to the applicant. The applicant sought an order, under section 329(1) of the Companies Act read with sections 98(2) and/or 102(1)(d) of the Bankruptcy Act, that the first respondent and/or the second respondent, Indorama Holdings BV, pay the sum of US$17,007,263.60. The judgment records that Goh Yihan J dismissed the application. The matter raised whether a waiver could constitute a transaction at an undervalue and whether it was appropriate to make a payment order. The applicant was represented by counsel including Ang Leong Hao, Darrell Low Kim Boon, Petrina Tan Heng Kiat, Sia Bao Huei and Wong Soon Peng Adrian, while the respondents were represented by counsel including Bull Cavinder, Kong Man Er and Tan Sih Si.

Summary

Affert Resources Pte Ltd, a company in compulsory winding up, applied to the General Division of the High Court under section 329 of the Companies Act read with the Bankruptcy Act to unwind an alleged waiver of a debt of US$17,007,263.60 owed by Industries Chimiques du Senegal, seeking a payment order against the respondents on the basis that the waiver was a transaction at an undervalue. The issues were whether the alleged waiver was a transaction at an undervalue and whether it was appropriate to make a payment order. Goh Yihan J dismissed the application, finding that while the relevant transaction was a transaction at an undervalue because he could not estimate the consideration received, it was not appropriate to make the payment order sought as it would rewrite the commercial bargain the parties had struck.

What did Affert Resources Pte Ltd v Industries Chimiques du Senegal [2024] SGHC 57 decide?

In [2024] SGHC 57, the General Division of the High Court, with Goh Yihan J delivering judgment on 28 February 2024, dismissed Affert Resources Pte Ltd's application to unwind an alleged waiver of a US$17,007,263.60 debt as a transaction at an undervalue.

What was the alleged transaction at an undervalue in [2024] SGHC 57?

The alleged transaction at an undervalue was a waiver of a debt of US$17,007,263.60 owed by Industries Chimiques du Senegal to Affert Resources Pte Ltd. The applicant sought a payment order under section 329 of the Companies Act read with the Bankruptcy Act.

Which statutes were relied on in Affert Resources Pte Ltd [2024] SGHC 57?

The application relied on section 329 of the Companies Act (Cap 50) read with sections 98 and 102(1)(d) of the Bankruptcy Act (Cap 20). The judgment also referenced the Insolvency Act and the UK Insolvency Act among the statutes considered.