Re Asia Petan Organisation: Power to Restore Company Struck Off the Register
In Re Asia Petan Organisation Pte Ltd, the High Court of Singapore addressed an application by Song Seok Won to restore Asia Petan Organisation Pte Ltd to the register after it was struck off following an application by Tan Chung Hoe, the other director. The court, presided over by Audrey Lim JC, considered whether it had the power to restore a company struck off on its own application and the factors to consider in such a determination. The court granted Song's application, finding it just to restore the company, primarily to allow Song to pursue a derivative action against Tan for alleged breaches of his fiduciary duties as a director.
1. Case Overview
1.1 Court
High Court of the Republic of Singapore1.2 Outcome
Application Granted
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
The High Court considered the power to restore a company struck off the register and the factors in determining restoration. The court granted the application.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Song Seok Won | Applicant | Individual | Application Granted | Won | |
| Asia Petan Organisation Pte Ltd | Other | Corporation | |||
| Tan Chung Hoe | Other | Individual |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Audrey Lim | Judicial Commissioner | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Hariz Lee | Tito Isaac & Co LLP |
| Shah Bahvini Jayakant | Bahvini S Law Practice |
4. Facts
- Asia Petan Organisation Pte Ltd was struck off the register following an application by director Tan Chung Hoe.
- Song Seok Won, the other director, applied to restore the Company to the register.
- Song claimed Tan breached his fiduciary duties by drawing unauthorized salaries and making unauthorized withdrawals.
- Song wished to commence an action in the Company’s name against Tan pursuant to s 216A of the Act.
- Tan opposed the restoration, arguing s 344A(7)(a) of the Act preserved the liability of every officer and member.
- Song contributed the Company’s entire paid-up capital of $50,000 and at least another $80,000 to the Company.
- There was a dispute between Song and Tan regarding the Company’s accounts, revenue and expenses.
5. Formal Citations
- Re Asia Petan Organisation Pte Ltd, Originating Summons No 1289 of 2016, [2017] SGHC 204
6. Timeline
| Date | Event |
|---|---|
| Company incorporated | |
| Application for striking off lodged | |
| Song became aware company was struck off | |
| Section 344A of the Companies Act came into force | |
| Application to restore taken out | |
| Hearing Date | |
| Judgment Date |
7. Legal Issues
- Power to Restore Company Struck Off the Register
- Outcome: The court held that it has the power under Section 344(5) of the Companies Act to restore a company struck off on its own application, whether pursuant to Section 344 or the new Section 344A.
- Category: Substantive
- Factors in Determining Restoration of Company
- Outcome: The court outlined the factors to consider when determining whether to restore a company, including the purpose of restoring the company, whether there would be any practicable benefit arising from the restoration, and whether there would be prejudice to any persons.
- Category: Substantive
- Related Cases:
- [1997] BCC 207
- [1970] 2 WLR 959
8. Remedies Sought
- Restoration of Company to Register
9. Cause of Actions
- No cause of actions
10. Practice Areas
- Commercial Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Re Priceland Ltd | N/A | Yes | [1997] BCC 207 | England | Cited for the principle that exercising discretion against restoration should be the exception, not the rule, and for considering all circumstances of the case. |
| In Re Boxco Ltd | N/A | Yes | [1970] 2 WLR 959 | N/A | Cited in support of Song's argument regarding factors a court should consider when determining whether to grant an application. |
| City of Westminster Assurance Co Ltd v Registrar of Companies | N/A | Yes | [1997] BCC 960 | England | Cited for the principle that the intention of the section is to provide a remedy for a person who has a claim which can be enforced only if the company is restored to the register. |
| Re Blenheim Leisure (Restaurants) Ltd (No. 2) | N/A | Yes | [2000] BCC 821 | N/A | Cited for the principle that a member seeking restoration of a company need not establish that the company will be solvent if restored. |
| Re Forte’s (Manufacturing) Ltd Stanhope Pension Trust Ltd v Registrar of Companies | N/A | Yes | [1994] BCC 84 | N/A | Cited for the principle that the interest of an applicant in having the company revived does not have to be firmly established or highly likely to prevail. |
| Witherdale Ltd v Registrar of Companies | N/A | Yes | [2006] BCC 412 | N/A | Cited with approval of Neuberger J’s summary in Re Blenheim. |
| Australian Competition and Consumer Commission v Australian Securities and Investments Commission | Supreme Court of New South Wales (Equity Division) | Yes | 34 ACSR 232 | Australia | Cited for the principle that the court has a wide discretion in determining whether it is just that the company’s registration be reinstated. |
| Arnold World Trading Pty Ltd v ACN 133 427 335 Pty Limited | Supreme Court of New South Wales (Equity Division) | Yes | [2010] NSWSC 1369 | Australia | Cited for the principle that whether an applicant is a “person aggrieved” is considered by reference to legal rights and legal interests. |
| In re Wood & Martin (Bricklaying Contractors) Ltd | N/A | Yes | [1971] 1 WLR 293 | England | Cited in support of its statement that the applicant was expected to have “an interest of a proprietary or pecuniary nature in resuscitating the company”. |
| CTQ Pty Ltd & Ors v Yamamori (Hong Kong) Pty Ltd | Court of Appeal of the Northern Territory | Yes | (1992) 10 ACSR 534 | Australia | Approved in Sweeney, the court ordered the removal of the first defendant as a party to the proceedings on the basis that the first defendant was “a litigant with no standing” to pursue orders. |
| Sweeney & Vandeleur Pty Ltd v BNY Australia Ltd | Equity Division of the Supreme Court of New South Wales | Yes | (1993) 11 ACSR 356 | Australia | Approved CTQ, the court held that from the date of dissolution pursuant to s 574(1) until the date on which the registration of a company may be reinstated, a company does not exist and has no power to commence proceedings. |
| Banque Internationale de Commerce de Petrograd v Goukassow | N/A | Yes | [1923] 2 KB 682 | N/A | Cited with approval the holding of Scrutton LJ that: "A non-existent person cannot sue," |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Companies Act (Cap 50) | Singapore |
| Section 344 of the Companies Act (Cap 50, 2006 Rev Ed) | Singapore |
| Section 344(5) of the Companies Act | Singapore |
| Section 344A of the Companies Act | Singapore |
| Section 344A(7)(a) of the Companies Act | Singapore |
| Section 216A of the Companies Act | Singapore |
| United Kingdom Companies Act 2006 (c 46) | United Kingdom |
| Section 1003(6) of the United Kingdom Companies Act 2006 (c 46) | United Kingdom |
| Companies Act 1985 (c 6) | United Kingdom |
| Section 652A(6)–(7) of the Companies Act 1985 (c 6) | United Kingdom |
| Australian Corporations Act 2001 (Cth) | Australia |
| Section 601AD(1) of the Australian Corporations Act 2001 (Cth) | Australia |
| Australian Corporations Act 1989 (Cth) | Australia |
| Section 574(1) of the Australian Corporations Act 1989 (Cth) | Australia |
15. Key Terms and Keywords
15.1 Key Terms
- Striking off
- Restoration
- Fiduciary duty
- Derivative action
- Companies Act
- Aggrieved person
- Prejudice
- Proprietary interest
- Pecuniary interest
15.2 Keywords
- Company Restoration
- Striking Off
- Singapore Law
- Companies Act
- Fiduciary Duty
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Restoration of Company Name | 90 |
| Restoration of Company | 85 |
| Company Law | 80 |
| Companies Act | 75 |
| Director's Duties | 70 |
| Fiduciary Duties | 65 |
| Winding Up | 50 |
| Insolvency Law | 40 |
16. Subjects
- Company Law
- Civil Procedure