Sarawak Timber v Asia Pulp: Enforcement of Malaysian Judgment on Unpaid Share Capital
The Singapore High Court heard an appeal by Sarawak Timber Industry Development Corp (STIDC) and State Financial Secretary Incorporated (SFS) against Asia Pulp & Paper Co Ltd (APP), regarding the enforcement of a Malaysian court order. The Malaysian court had granted a liquidator leave to make a call on APP for unpaid share capital in Borneo Pulp & Paper Sdn Bhd (BPP). The High Court allowed the appeal, reinstating the registration of the Malaysian court order, finding that it was an order for a sum of money and that the delay in registration was justified.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Appeal Allowed
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore High Court allows enforcement of a Malaysian court order for unpaid share capital against Asia Pulp & Paper, addressing registration delays.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Sarawak Timber Industry Development Corp | Appellant | Statutory Board | Appeal Allowed | Won | |
| State Financial Secretary Incorporated | Appellant | Government Agency | Appeal Allowed | Won | |
| Asia Pulp & Paper Co Ltd | Respondent | Corporation | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Judith Prakash | Judge | Yes |
4. Counsels
4. Facts
- Sarawak HC made a winding up order in respect of BPP.
- APP, STDIC, and SFS were shareholders of BPP.
- Liquidator applied for leave to make a call on APP for unpaid share capital.
- Liquidator issued a report stating all creditors of BPP had been paid.
- Liquidator sought to set off the sum payable to APP from the sum to be called from APP.
- Sarawak HC granted the Liquidator leave to make a call on APP.
- Liquidator served a call on APP for the sum of RM117m.
- APP did not make any payment to STDIC and SFS.
- APP appealed against the Sarawak HC’s decisions, but the appeal was dismissed.
- STIDC and SFS commenced Originating Summons in Singapore to enforce their right to payment.
5. Formal Citations
- Sarawak Timber Industry Development Corp and another v Asia Pulp & Paper Co Ltd, Originating Summons No 1075 of 2012 (Registrar's Appeal No 109 of 2013), [2013] SGHC 243
6. Timeline
| Date | Event |
|---|---|
| Sarawak High Court made a winding up order in respect of Borneo Pulp & Paper Sdn Bhd. | |
| Liquidator applied for leave from the Sarawak High Court to make a call on APP. | |
| Liquidator issued a report on the status of the liquidation of BPP. | |
| Liquidator filed a Notice of Motion seeking orders from the Sarawak High Court. | |
| Sarawak High Court heard the SIC application and the NOM together. | |
| Liquidator served a call on APP for the sum of RM117m. | |
| Malaysian Court of Appeal dismissed APP's appeal. | |
| STIDC and SFS commenced Originating Summons No 1075 of 2012 in Singapore. | |
| Assistant Registrar granted orders in terms of OS 1075. | |
| APP applied to set aside the AR’s decision. | |
| Decision Date |
7. Legal Issues
- Enforceability of Foreign Judgment
- Outcome: The court held that the Relevant Order was a judgment for a sum of money and allowed the late registration of the order.
- Category: Substantive
- Sub-Issues:
- Whether the Relevant Order is for a sum of money
- Whether it was too late to apply to register the Relevant Order
- Related Cases:
- [2009] 2 SLR(R) 166
- Delay in Registration of Foreign Judgment
- Outcome: The court found that the delay was not inordinate and that the judgment debtor had not demonstrated prejudice.
- Category: Procedural
- Sub-Issues:
- Reasonable explanation for delay
- Prejudice to the judgment debtor
- Related Cases:
- [2009] 2 SLR(R) 166
8. Remedies Sought
- Registration of Foreign Judgment
- Enforcement of Payment
9. Cause of Actions
- Enforcement of Foreign Judgment
- Debt Recovery
10. Practice Areas
- Enforcement of Foreign Judgments
- Commercial Litigation
- Insolvency Law
11. Industries
- Timber
- Pulp and Paper
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Westacre Investments Inc v The State-Owned Company Yugoimport SDPR (also known as Jugoimport-SDPR) | Court of Appeal | Yes | [2009] 2 SLR(R) 166 | Singapore | Cited for the approach to take when faced with a late application to register a foreign judgment under the Reciprocal Enforcement of Commonwealth Judgments Act. |
| In re Peter Lalor Home Building Co-operative Society Limited (in liquidation; Tuckman v Dunlop | Supreme Court of Victoria | Yes | [1958] VR 165 | Australia | Cited regarding the creation of a new cause of action when a call of unpaid capital is made by a liquidator in winding up proceedings. |
| Duer v Frazer | England and Wales Court of Appeal (Civil Division) | Yes | [2001] 1 WLR 919 | England and Wales | Cited as an example of a situation in which a judgment debtor may rely on prejudice to resist late registration of a judgment. |
| Deutsche Bank AG and another v Asia Pulp & Paper Co Ltd | Court of Appeal | Yes | [2003] 2 SLR(R) 320 | Singapore | Cited regarding APP's insolvency and lack of significant tangible assets or operations in Singapore. |
| Deutsche Bank AG and another v Asia Pulp & Paper Co Ltd | High Court | Yes | [2002] SGHC 257 | Singapore | Cited regarding APP's insolvency and lack of significant tangible assets or operations in Singapore. |
13. Applicable Rules
| Rule Name |
|---|
| Malaysian Companies (Winding Up) Rules 1972 |
| Singapore Companies (Winding Up) Rules (Cap 50, R 1, 2006 Rev Ed) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) | Singapore |
| Malaysian Companies Act 1965 | Malaysia |
| Singapore Companies Act (Cap 50, 2006 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Winding up order
- Liquidator
- Call on unpaid share capital
- Contributories
- Rights of enforcement
- Balance Payment
- Reciprocal Enforcement of Commonwealth Judgments Act
- Sarawak High Court
- Malaysian Court of Appeal
15.2 Keywords
- Foreign Judgment
- Enforcement
- Winding Up
- Share Capital
- Singapore
- Malaysia
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Recognition of Foreign Judgments | 90 |
| Winding Up | 70 |
| Liquidation | 70 |
| Foreign Law | 50 |
| Company Law | 50 |
16. Subjects
- Enforcement of Foreign Judgments
- Company Law
- Insolvency Law