Denmark Skibstekniske v Ultrapolis: Winding Up Petition Based on Arbitration Award

The Singapore High Court heard an application by Denmark Skibstekniske Konsulenter A/S I Likvidation (DSK) to wind up Ultrapolis 3000 Investments Ltd (Ultrapolis) for failure to pay an undisputed debt arising from an arbitration award. Ultrapolis contested the application, citing a cross-claim against DSK. Justice Quentin Loh ordered Ultrapolis to be wound up, finding that Ultrapolis's cross-claim was not genuine and that Ultrapolis had failed to provide security as previously ordered by the court.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Ultrapolis be wound up by the court

1.3 Case Type

Insolvency

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court ordered Ultrapolis 3000 Investments to be wound up due to failure to pay an undisputed debt based on an arbitration award.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E Hansen A/S)ApplicantCorporationWinding up order grantedWon
Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis 3000 Theme Park Investments Ltd)RespondentCorporationWinding up orderLost

3. Judges

Judge NameTitleDelivered Judgment
Quentin LohJudgeYes

4. Counsels

Counsel NameOrganization
Loh Jen WeiRodyk & Davidson
Herman JeremiahRodyk & Davidson
Chopra Sarbjit SinghLim & Lim

4. Facts

  1. Ultrapolis owed DSK €686,693.30 plus interest pursuant to an arbitration award.
  2. DSK applied to register the arbitration award as a judgment, which was contested by Ultrapolis.
  3. DSK served a statutory demand on Ultrapolis for the undisputed judgment debt.
  4. Ultrapolis did not comply with the statutory demand.
  5. DSK applied to the court for Ultrapolis to be wound up.
  6. Ultrapolis claimed to have a cross-claim against DSK.
  7. Ultrapolis instituted a second arbitration proceeding against DSK after the statutory demand was served.

5. Formal Citations

  1. Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E Hansen A/S) v Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis 3000 Theme Park Investments Ltd), CWU No 196 of 2010, [2011] SGHC 207

6. Timeline

DateEvent
Sea Charter entered into a contract with Waymax International Limited to design and construct a 90 meter mega yacht
Ultrapolis entered into a written agreement with DSK for professional design services
Parties concluded a new agreement for design services for a 100 meter mega yacht
DSK referred the matter to arbitration before three members of the Danish Arbitration Institute
Interest started to accrue on the undisputed debt
Tribunal held that it had jurisdiction to hear the dispute
Ultrapolis issued a Writ of Summons in Singapore, in Suit No. S300/2008/H cross-claiming for DSK’s negligent work
Ultrapolis’ Danish lawyer informed the Tribunal by email that he no longer represented Ultrapolis
Tribunal in Denmark went on with the main oral hearing of the disputes
Tribunal published its First Award
Tribunal published a Corrected Award
DSK successfully applied before an Assistant Registrar to have Suit 300 set aside
DSK applied for leave to enforce the Corrected Award in Singapore in OS 807
Ultrapolis’ appeal against this decision was dismissed by Chan Seng Onn J in Registrar’s Appeal No. 239/2009/H
Ultrapolis issued a Writ of Summons in Suit No. S886/2009/L against DSK cross-claiming €1.5 million
Belinda Ang J held that Ultrapolis’s challenge to the enforcement of the Corrected Award was without merit
Court of Appeal dismissed Ultrapolis's appeal in CA 75/2010/A
DSK served a statutory demand on Ultrapolis demanding payment of the judgment debt
Suit 886 was discontinued
Ultrapolis instituted arbitration proceedings against the DSK in Denmark for a claim amounting to €927,850
DSK applied to the court for Ultrapolis to be wound up
Filing of the winding up application by DSK
Court hearing
Court hearing
Court hearing
Court hearing
Court hearing
Court gave orders to wind up Ultrapolis
Decision Date

7. Legal Issues

  1. Winding up petition based on undisputed debt
    • Outcome: The court held that Ultrapolis failed to prove the existence of a genuine and serious cross-claim and ordered Ultrapolis to be wound up.
    • Category: Substantive
    • Sub-Issues:
      • Genuine and serious cross-claim
      • Collateral purpose of winding up application
      • Irreparable harm to debtor's business
  2. Abuse of process
    • Outcome: The court found that Ultrapolis's cross-claim appeared to be a thinly veiled collateral attack on the Corrected Award and OS 807.
    • Category: Procedural
    • Sub-Issues:
      • Re-litigation of issues
      • Collateral attack on previous decision

8. Remedies Sought

  1. Winding up order

9. Cause of Actions

  • Failure to pay judgment debt
  • Breach of contract

10. Practice Areas

  • Winding Up
  • Commercial Litigation
  • Arbitration

11. Industries

  • Shipping

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E Hansen A/S) v Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis 3000 Theme Park InvestmentsHigh CourtYes[2010] 3 SLR 661SingaporeThe court relied on this case to determine that the New Agreement had incorporated a valid arbitration clause.
Bayoil SA, In reEnglish Court of AppealYes[1999] 1 WLR 147EnglandCited for the principle that a winding-up petition should be dismissed or stayed where there is a genuine and serious cross-claim.
Metalform Asia Pte Ltd v Holland Leedon Pte LtdCourt of AppealYes[2007] 2 SLR(R) 268SingaporeCited for the standard of proof required for a debtor company to resist a winding-up petition based on a cross-claim.
Pacific Recreation Pte Ltd v S Y Technology Inc and anorCourt of AppealYes[2008] 2 SLR(R) 491SingaporeCited for the standard of proof required for a debtor company to resist a winding-up petition based on a disputed debt.
De Montfort University v Stanford Training Systems Pte LtdHigh CourtYes[2006] 1 SLR(R) 218SingaporeCited regarding the standard for determining the existence of a substantial and bona fide dispute.
Ashworth v Newnote LtdEnglish Court of AppealYes[2007] EWCA Civ 793EnglandCited for the principle that there is no practical difference between a 'genuine triable issue' and a 'real prospect' of success.
Montgomery v Wanda Modes LtdHigh CourtYes[2002] 1 BCLC 289EnglandCited to disagree with the proposition that a debtor company is precluded from relying on a cross-claim simply because it could reasonably have litigated the cross-claim before the petition was presented.
LHF Wools Ltd, ReCourt of AppealYes[1970] Ch 27EnglandCited to show the origins of the idea that a debtor must not have been able to litigate his cross-claim.
Dennis Rye Ltd v Bolsover District CouncilEnglish Court of AppealYes[2009] EWCA Civ 372EnglandCited for the principle that a company is not prevented from raising a cross-claim in winding-up proceedings simply because it could have raised or litigated the claim before the presentation of the petition.
The Accessory People Ltd v RouassEnglish Court of AppealYes[2010] EWCA Civ 302EnglandCited to support the idea that the fact that there has been a failure to litigate a claim is simply a matter to be taken into account in deciding whether or not the cross-claim is a genuine one.
Bradford & Bingley Building Society v SeddonCourt of AppealYes[1999] 1 WLR 1482EnglandCited for the distinction between res judicata and abuse of process.
Goh Nellie v Goh Lian Teck and anorHigh CourtYes[2007] 1 SLR(R) 453SingaporeCited for the balancing approach to determine whether there is an abuse of process.
Henderson v HendersonNot AvailableYes(1843) 3 Hare 100EnglandCited for the well known rule regarding abuse of process.
Pacific King Shipping Pte Ltd and anor v Glory Wealth Shipping Pte LtdHigh CourtYes[2010] 4 SLR 413SingaporeCited to suggest that the fact that a cross-claim could have been raised in previous arbitration proceedings is relevant in determining whether the debtor has a genuine cross-claim.
Sallal v Bank MellatNot AvailableYes[1986] 1 QB 441EnglandCited for the principle that it would be an abuse of process to commence judicial proceedings on an issue that had previously been raised or should with reasonable diligence have been raised in a court or tribunal of competent jurisdiction.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
International Arbitration Act (Cap 143A, 2002 Rev Ed)Singapore
Companies Act (Cap 50, 1994 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Winding up petition
  • Arbitration award
  • Statutory demand
  • Cross-claim
  • Liquidation
  • Abuse of process
  • Insolvency

15.2 Keywords

  • winding up
  • arbitration
  • insolvency
  • Singapore
  • cross-claim

17. Areas of Law

Area NameRelevance Score
Winding Up90
Arbitration75
Business Litigation60
Company Law50
Contract Law30

16. Subjects

  • Insolvency
  • Arbitration
  • Company Law