Excalibur Group v Goh Boon Kok: Application for Leave to Sue Liquidator for Breach of Contract and Fraud

Excalibur Group Pte Ltd applied to the High Court of Singapore for a declaration on whether leave of court was required to commence an action against Goh Boon Kok, the liquidator of Kaki Bukit Industrial Park Pte Ltd, for breach of contract and fraud. The plaintiff had already commenced Suit 162 of 2011 against the defendant. The High Court, presided over by Quentin Loh J, held that a common law requirement exists for obtaining leave before suing a liquidator and granted the plaintiff retrospective leave to continue its action.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

The court granted the plaintiff retrospective leave to commence Suit 162 of 2011 against the defendant.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

The High Court considered whether leave was required to sue a liquidator for breach of contract and fraud, granting retrospective leave.

1.7 Decision Date

4 April 2012

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Excalibur Group Pte Ltd	Plaintiff	Corporation	Application Granted	Won	S Palaniappan of Straits Law Practice LLC Ramesh Bharani Nagaratnam of Straits Law Practice LLC
Goh Boon Kok	Defendant	Individual	Application for Leave Granted	Lost	Lawrence Tan of Eldan Law LLP Adrian Tan of Eldan Law LLP

3. Judges

Judge Name	Title	Delivered Judgment
Quentin Loh	Judge	Yes

4. Counsels

Counsel Name	Organization
S Palaniappan	Straits Law Practice LLC
Ramesh Bharani Nagaratnam	Straits Law Practice LLC
Lawrence Tan	Eldan Law LLP
Adrian Tan	Eldan Law LLP

4. Facts

Excalibur Group tendered for the purchase of property from Kaki Bukit Industrial Park Pte Ltd, which was in liquidation.
Goh Boon Kok was the liquidator of Kaki Bukit Industrial Park Pte Ltd.
Excalibur Group's tender was rejected.
Wellsprings Properties Pte Ltd was awarded the tender.
Wellsprings allegedly paid secret commissions to Goh Boon Kok.
Excalibur Group commenced an action against Goh Boon Kok, alleging breach of contract and fraud.
Goh Boon Kok applied to strike out Excalibur Group's statement of claim.

5. Formal Citations

Excalibur Group Pte Ltd v Goh Boon Kok, Originating Summons No 636 of 2011, [2012] SGHC 71

6. Timeline

Date	Event
2001-12-01	Loh Lin Kett applied to wind up Kaki Bukit Industrial Park Pte Ltd.
2002-01-11	Winding-up application granted by Woo Bih Li JC.
2002-01-11	Goh Boon Kok appointed as liquidator.
2002-11-08	Goh Boon Kok invited parties to tender for the purchase of Lot 5643M.
2003-01-07	Excalibur Group Pte Ltd submitted two tenders.
2003-01-08	Excalibur Group Pte Ltd informed that tenders were rejected.
2004-03-10	Goh Boon Kok acknowledged receipt of $30,000 from K S Resource.
2004-09-28	Goh Boon Kok acknowledged receipt of $120,000 from K S Resource.
2009-10-01	Loh Lin Kett discovered Wellsprings paid secret commissions to Goh Boon Kok in 2004.
2011-01-01	Excalibur Group Pte Ltd commenced Suit No 162 of 2011 against Goh Boon Kok.
2011-04-25	Goh Boon Kok filed an application to strike out the plaintiff’s statement of claim in S162/2011.
2011-05-30	Excalibur Group Pte Ltd took out a similar application in Summons No 600093 of 2011 for leave of court.
2011-07-26	Excalibur Group Pte Ltd sought and obtained leave to withdraw that application.
2012-04-05	High Court granted the plaintiff retrospective leave to commence S162/2011.

7. Legal Issues

Requirement for Leave to Sue a Liquidator
- Outcome: The court held that a common law requirement exists for obtaining leave before suing a liquidator and granted retrospective leave.
- Category: Procedural
- Sub-Issues:
  - Retrospective Leave
  - Prima Facie Case
- Related Cases:
  - [2011] VSC 419
  - [2005] TASC 64
  - [2001] NSWSC 26
  - [1996] 144 ALR 159
  - [1991] 25 NSWLR 25
  - [1909] 2 Ch 283
  - [2002] EWCA Civ 1785
  - [2006] EWCA Civ 1165
  - [2010] 1 MLJ 547
  - [2007] 3 MLJ 571
  - [2003] 3 MLJ 57
  - [1995] 3 MLJ 204
  - [2004] 1 SLR(R) 671
  - [2001] QSC 405
  - [2003] 2 SLR(R) 422

8. Remedies Sought

Declaration
Leave to Commence Action

9. Cause of Actions

Breach of Contract
Fraud

10. Practice Areas

Liquidation
Commercial Litigation

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Armitage v Gainsborough Properties Pty Ltd	Supreme Court of Victoria	Yes	[2011] VSC 419	Australia	Cited for the principle that leave of court is required to commence proceedings against a liquidator.
Baxter v Hamilton	Supreme Court of Tasmania	Yes	[2005] TASC 64	Australia	Cited for the principle that leave of court is required to commence proceedings against a liquidator.
Mamone and another v Pantzer	Supreme Court of New South Wales	Yes	[2001] NSWSC 26	Australia	Cited for the rationale behind requiring leave to commence proceedings against a liquidator.
Sydlow Pty Ltd (in liq) v TG Kotselas Pty Ltd	Federal Court of Australia	Yes	[1996] 144 ALR 159	Australia	Cited for the rationale behind requiring leave to commence proceedings against a liquidator.
Re Siromath Pty Ltd (No 3)	Supreme Court of New South Wales	Yes	[1991] 25 NSWLR 25	Australia	Cited for the principle that courts have an interest in protecting their officers from vexatious litigation.
Re Maidstone Palace of Varieties	England and Wales High Court (Chancery Division)	Yes	[1909] 2 Ch 283	England and Wales	Cited for the requirement of leave to sue a receiver.
McGowan v Chadwick and another	England and Wales Court of Appeal (Civil Division)	Yes	[2002] EWCA Civ 1785	England and Wales	Cited for the requirement of leave to sue a receiver.
Weston v Dayman	England and Wales Court of Appeal (Civil Division)	Yes	[2006] EWCA Civ 1165	England and Wales	Cited for the requirement of leave to sue a receiver.
See Teow Guan & Ors v Kian Joo Holdings Sdn Bhd & Ors	High Court of Malaya	Yes	[2010] 1 MLJ 547	Malaysia	Cited for the principle that leave is required to bring proceedings against a liquidator.
Abric Project Management Sdn Bhd v Palmshine Plaza Sdn Bhd and another	High Court of Malaya	Yes	[2007] 3 MLJ 571	Malaysia	Cited for the principle that leave is required to bring proceedings against a liquidator.
Chin Cheen Foh v Ong Tee Chew	High Court of Malaya	Yes	[2003] 3 MLJ 57	Malaysia	Cited for the principle that a court-appointed liquidator is an officer of the court.
Chi Liung Holdings Sdn Bhd v Ng Pyak Yeow	Court of Appeal	Yes	[1995] 3 MLJ 204	Malaysia	Cited for the principle that a court-appointed liquidator is an officer of the court and leave is required to bring proceedings against them.
Korea Asset Management Corp v Daewoo Singapore Pte Ltd (in liquidation)	High Court	Yes	[2004] 1 SLR(R) 671	Singapore	Cited for the rationale of preventing unnecessary litigation against a company in liquidation.
McDonald v Dare	Supreme Court of Queensland	Yes	[2001] QSC 405	Australia	Cited for the suggestion that leave can be sought retrospectively or nunc pro tunc.
Jumabhoy Rafiq v Scotts Investment (Singapore) Pte Ltd (in compulsory liquidation)	High Court	Yes	[2003] 2 SLR(R) 422	Singapore	Cited for the principle that leave can be granted nunc pro tunc in the context of a claim against a company in liquidation.
Trustee of Estate of Ong Thiam Huat v Chan Hock Seng	High Court	Yes	[2004] SGHC 232	Singapore	Cited as an example of an action against a private liquidator in Singapore.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Companies Act (Cap 50, 2006 Rev Ed)	Singapore
Legal Profession Act (Cap 161, Rev Ed 2009)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Liquidator
Leave of Court
Winding-Up
Secret Commissions
Prima Facie Case
Retrospective Leave

15.2 Keywords

liquidator
leave to sue
winding up
breach of contract
fraud

17. Areas of Law

Area Name	Relevance Score
Winding Up	95
Leave of Court	70
Company Law	60
Liquidator's Duties	40
Commercial Disputes	30
Fraud and Deceit	25
Fiduciary Duties	20
Civil Procedure	15

16. Subjects

Insolvency
Company Law
Civil Procedure