ING Belgium NV v Projector SA: Winding Up of Foreign Company in Singapore
In ING Belgium NV v Projector SA, the High Court of Singapore addressed an application by ING Belgium NV to wind up Projector SA, a company incorporated in Belize and being liquidated there. Mitsui & Co Ltd, Mitsui Oil (Asia) Hong Kong Ltd, and Samsung Total Petrochemical Co Ltd opposed the application. The court, presided over by Justice Tan Lee Meng, considered whether it had jurisdiction to wind up a foreign company and whether the application was an abuse of process. The court found that it had jurisdiction and ordered Projector SA to be wound up in Singapore, appointing Kon Yin Tong and Aw Eng Hai as liquidators.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Projector SA ordered to be wound up.
1.3 Case Type
Insolvency
1.4 Judgment Type
Judgment reserved
1.5 Jurisdiction
Singapore
1.6 Description
The High Court addressed the winding up of Projector SA, a Belize-incorporated company, in Singapore, focusing on jurisdiction and creditor rights.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Aw Eng Hai | Other | Individual | Liquidator appointed | Neutral | |
| Kon Yin Tong | Other | Individual | Liquidator appointed | Neutral | |
| ING Belgium NV | Applicant | Corporation | Application granted | Won | |
| Projector SA | Respondent | Corporation | Winding up order granted | Lost | |
| SK Energy Europe Ltd | Respondent | Corporation | Neutral | Neutral | |
| Bayerische Hypo-und Vereinsbank AG | Respondent | Corporation | Neutral | Neutral | |
| Mitsui & Co Ltd | Respondent | Corporation | Opposition unsuccessful | Lost | |
| Mitsui Oil (Asia) Hong Kong Ltd | Respondent | Corporation | Opposition unsuccessful | Lost | |
| Samsung Total Petrochemical Co Ltd | Respondent | Corporation | Opposition unsuccessful | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Tan Lee Meng | Judge | Yes |
4. Counsels
4. Facts
- ING applied to wind up Projector SA, a Belize-incorporated company, in Singapore.
- Projector SA was registered as a foreign company in Singapore until recently.
- ING had a trade finance relationship with Projector SA.
- Mitsui obtained a judgment of US$69 million against Projector SA.
- Samsung obtained a judgment of US$9.4 million against Projector SA.
- Projector SA has assets in Singapore, including receivables and shares in FR8 Holdings.
- Projector SA is already in liquidation in Belize.
5. Formal Citations
- Re Projector SA, CWU 103/2008, [2008] SGHC 234
6. Timeline
| Date | Event |
|---|---|
| Vessel arrested in Singapore | |
| Letter of Indemnity furnished by Projector SA in favour of Mitsui | |
| Mitsui commenced Suit No 397 of 2008 and served the Writ of Summons on Projector SA | |
| Mitsui applied for an interim mandatory injunction against Projector SA | |
| Mitsui procured a bank guarantee for US$69 million to secure the release of the vessel | |
| Projector SA resolved to voluntarily wind up itself | |
| ING filed two applications in the Supreme Court of Belize to wind up Projector SA and FR8 Limited | |
| Belize Court appointed Mr Hosking and Mr Byers as Projector SA ‘s provisional liquidators | |
| Mitsui obtained judgment in default of defence in the Singapore High Court for US$69 million | |
| Mitsui applied for a Writ of Seizure and Sale against shares owned by Projector SA in FR8 Holdings | |
| ING applied for a stay of proceedings in Mitsui’s Suit No 397 of 2008 against Projector SA | |
| Samsung obtained summary judgment against Projector SA for around US$9.4 million | |
| The Supreme Court of Belize ordered the winding up of Projector SA and appointed Mr Hosking and Mr Byers as the liquidators of Projector SA | |
| Judgment reserved |
7. Legal Issues
- Jurisdiction to wind up a foreign company
- Outcome: The court found that it had jurisdiction to wind up Projector SA due to its assets in Singapore and sufficient nexus with Singapore.
- Category: Jurisdictional
- Sub-Issues:
- Sufficient nexus with Singapore
- Assets in Singapore
- Abuse of process
- Outcome: The court held that ING's application was not an abuse of process.
- Category: Procedural
- Sub-Issues:
- Collateral purpose
- Prevention of enforcement of judgment
- Standing of a foreign creditor to apply for winding up
- Outcome: The court held that a foreign creditor has standing to apply for the winding up of a foreign company in Singapore.
- Category: Procedural
8. Remedies Sought
- Winding up order
9. Cause of Actions
- Winding up application
10. Practice Areas
- Insolvency
- Commercial Litigation
11. Industries
- Finance
- Shipping
- Petrochemical
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Tohru Motobayashi v Official Receiver & Anor | Court of Appeal | Yes | [2000] 4 SLR 529 | Singapore | Cited for the interpretation of section 377(3)(c) of the Companies Act regarding the duties of a liquidator of a foreign company in Singapore. |
| Lai Shit Har & Anor v Lau Yu Man | Court of Appeal | Yes | [2008] 4 SLR 348 | Singapore | Cited and distinguished regarding the issue of abuse of process in winding up applications. |
| Re Griffin Securities Corporation | High Court | Yes | [1999] 3 SLR 346 | Singapore | Cited for the principles regarding the court's discretion in winding up a foreign company and the relevance of assets in Singapore. |
| Roberts Petroleum Ltd v Bernard Kenny Ltd | House of Lords | Yes | [1983] 2 WLR 305 | England | Cited regarding the rights of creditors to seek security and the rights of companies to hasten liquidation. |
| Eloc ElectroOptieck and Communcatie BV, In re | N/A | Yes | Eloc ElectroOptieck and Communcatie BV, In re [1982] Ch 43 | England | Cited for the principle that a foreign company can be wound up even without assets in the jurisdiction if there is a reasonable possibility of benefit accruing to creditors. |
| A Company (No 00359 of 1987), In re | N/A | Yes | A Company (No 00359 of 1987), In re [1988] 1 Ch 210 | England | Cited for the principle that the presence of assets is not an essential condition for the court to have jurisdiction to wind up a foreign company. |
| Compania Merabello San Nicholas SA, In re | N/A | Yes | [1973] 1 Ch 75 | N/A | Cited for the essential elements for the existence of jurisdiction to make a winding up order in respect of foreign companies. |
| Re Ah Yee Contractors (Pte) Ltd | N/A | Yes | [1987] SLR 383 | Singapore | Cited and distinguished regarding the requirement to show a surplus after payment to local creditors. |
| Official Receiver of Hongkong v Kao Wei Tseng & Ord | Court of Appeal | Yes | [1990] SLR 29 | Singapore | Cited for the principle that the powers of a foreign liquidator are not as extensive as those of a Singapore liquidator. |
| Mitchell & Anor v Buckingham International plc (in liq) and Ors | N/A | Yes | [1998] 2 BCLC 369 | N/A | Cited for the principle that the court must balance the interests of all parties concerned. |
| Transbilt Engineering Pte Ltd (in liquidation) v Firebuild Systems Pte Ltd | Court of Appeal | Yes | [2005] 3 SLR 550 | Singapore | Cited for the principle that an unsecured creditor of an insolvent company should not be allowed to retain the benefit of a garnishee order. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Companies Act (Cap 50, 2006 Rev Ed) s 253(1)(b) | Singapore |
| Companies Act (Cap 50, 2006 Rev Ed) s 377(3) | Singapore |
| Companies Act (Cap 50, 2006 Rev Ed) s 377(3)(c) | Singapore |
| Companies Act (Cap 50, 2006 Rev Ed) s 328 | Singapore |
| Companies Act s 368(1) | Singapore |
| Companies Act s 351(3) | Singapore |
| Companies Act s 377(2)(b) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Winding up
- Foreign company
- Jurisdiction
- Abuse of process
- Liquidator
- Assets in Singapore
- Nexus
- Creditor
- Statutory demand
- Provisional liquidators
15.2 Keywords
- Winding up
- Foreign company
- Singapore
- Jurisdiction
- Creditor
- Companies Act
- Insolvency
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Winding Up | 95 |
| Bankruptcy | 75 |
| Company Law | 60 |
| Commercial Disputes | 40 |
| Trade Finance | 35 |
| Asset Recovery | 30 |
| Statutory Demand | 25 |
| Arbitration | 20 |
16. Subjects
- Company Law
- Insolvency Law
- Winding Up of Companies