Suntech Power Investment v Power Solar System: Striking Out Appeal for Mareva Injunction Breach

The Court of Appeal struck out Suntech Power Investment Pte Ltd's appeal (CA 109/2018) against Power Solar System Co Ltd (in liquidation) due to Suntech's contumelious breach of a Mareva injunction. The court found that Suntech had disposed of key assets, including shares in Shanghai Suntech, and failed to adequately disclose its assets as required by the injunction. The court initially issued an unless order, requiring Suntech to pay US$55.56 million into court by August 7, 2019, to avoid the appeal being struck out. Suntech failed to comply, resulting in the appeal being struck out as an abuse of process.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Appeal struck out as an abuse of the court's process.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal struck out due to Suntech Power Investment's contumelious breach of a Mareva injunction by dissipating assets and failing to disclose information.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Suntech Power Investment Pte LtdRespondent, AppellantCorporationAppeal struck out as an abuse of the court's processLost
Power Solar System Co Ltd (in liquidation)Applicant, RespondentCorporationAppeal struck outWon

3. Judges

Judge NameTitleDelivered Judgment
Sundaresh MenonChief JusticeNo
Andrew Phang Boon LeongJudge of AppealYes
Chao Hick TinSenior JudgeNo

4. Counsels

Counsel NameOrganization
Yam Wern-JhienRajah & Tann Singapore LLP
Danny Ong Tun WeiRajah & Tann Singapore LLP
Danitza Hon Cai XiaRajah & Tann Singapore LLP
Balakrishnan Ashok KumarBlackOak LLC
Leong Ji Mun GregoryBlackOak LLC

4. Facts

  1. A Mareva injunction was granted against the appellant on 4 September 2014.
  2. The appellant disposed of its shares in Shanghai Suntech for RMB2 in September 2018.
  3. The appellant failed to file its disclosure of assets affidavit until 21 June 2019.
  4. The appellant was found to be in contempt of court for breaching the Mareva injunction.
  5. The appellant did not restore the value of its shares in Shanghai Suntech to its asset pool.
  6. The appellant failed to pay the requisite sum into court by the stipulated deadline of 7 August 2019.

5. Formal Citations

  1. Suntech Power Investment Pte Ltd v Power Solar System Co Ltd (in liquidation), , [2019] SGCA 52
  2. , Civil Appeal No 109 of 2018, Civil Appeal No 109 of 2018
  3. , Suit No 59 of 2014, Suit No 59 of 2014

6. Timeline

DateEvent
Respondent held 100% shareholding in the Appellant.
Share transfer agreement between the Appellant and the Respondent.
Respondent transferred its shares in the Appellant to Wuxi Suntech.
SPH was placed into provisional liquidation.
Respondent was placed into liquidation.
Respondent commenced Suit No 59 of 2014 against the Appellant.
Wuxi Suntech entered into an agreement with Fast Fame for the transfer of its shares in the Appellant to the latter.
Respondent discovered that the Appellant had sold its shares in four of its subsidiaries.
Worldwide Mareva injunction granted against the Appellant.
Suntech R&D Australia Pty Ltd began its voluntary winding-up process.
SPH was placed into official liquidation.
Suntech R&D Australia Pty Ltd was de-registered.
Rietech Investments Ltd was struck off the register of companies in Hong Kong and dissolved.
Trial for Suit No 59 of 2014 held.
Trial for Suit No 59 of 2014 held.
Judgment given for the Respondent in Suit No 59 of 2014.
Appellant filed its notice of appeal for CA 109/2018.
Respondent applied to convert the Mareva injunction into a post-judgment Mareva injunction.
Parties entered into a by-consent order to extend the Mareva injunction.
Appellant disposed of its shares in Shanghai Suntech.
Conversion application and payment out of court application were heard.
Respondent sought leave to commence committal proceedings against the Appellant.
Leave was granted to commence committal proceedings.
Bai Yun filed his 17th affidavit to explain the Appellant’s breaches of the Mareva injunction.
Committal application was heard and the Judge found the Appellant to be in contempt of court.
Respondent filed SUM 58.
SUM 58 was heard.
SUM 58 was heard.
Appellant affirmed an affidavit of all of its assets.
Respondent filed Summons No 74 of 2019.
Bai Yun filed an affidavit in SUM 74.
Appellant replied to YKJ’s Affidavit.
Hearing of SUM 58 resumed along with SUM 74. Court ordered that unless the appellant paid into court the value of its shares in Shanghai Suntech, which the court took to be US$55.56m, by 7 August 2019, CA 109/2018 would be struck out as an abuse of the court’s process.
Appellant failed to pay the requisite sum into court by the stipulated deadline. CA 109/2018 was automatically struck out as an abuse of the process of the court.
Grounds of decision issued.

7. Legal Issues

  1. Breach of Mareva Injunction
    • Outcome: The court found that the appellant was in contumelious breach of the Mareva injunction.
    • Category: Substantive
    • Sub-Issues:
      • Dissipation of assets
      • Failure to disclose assets
      • Failure to restore value of dissipated assets
    • Related Cases:
      • [2016] 3 SLR 1
  2. Abuse of Process
    • Outcome: The court found that the appellant's filing of the notice of appeal was an abuse of the court's process.
    • Category: Procedural
    • Related Cases:
      • [2005] 2 SLR(R) 188
      • [1997] 3 SLR(R) 649
      • [1993] 1 WLR 1489
      • [2018] 2 SLR 159

8. Remedies Sought

  1. Dismissal of Appeal
  2. Striking Out of Appeal

9. Cause of Actions

  • Breach of Mareva Injunction
  • Contempt of Court

10. Practice Areas

  • Commercial Litigation
  • Insolvency

11. Industries

  • Energy

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Mok Kah Hong v Zheng Zhuan YaoCourt of AppealYes[2016] 3 SLR 1SingaporeCited regarding the standard of proof required to find a party in breach of court orders and in contempt of court.
Riduan bin Yusof v Khng Thian Huat and anotherCourt of AppealYes[2005] 2 SLR(R) 188SingaporeCited for the principle that the Court of Appeal has the inherent jurisdiction to strike out a notice of appeal where the appeal is plainly not competent, or where the appeal is frivolous, vexatious or an abuse of the process of the court.
Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and othersCourt of AppealYes[1997] 3 SLR(R) 649SingaporeCited for the definition of 'abuse of process' and the court's power to prevent the improper use of its machinery.
Lonrho plc v Flayed (No 5)N/AYes[1993] 1 WLR 1489N/ACited for the principle that an action brought for an ulterior or collateral purpose, rather than to obtain relief, may be struck out as an abuse of process.
Jtrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and othersN/AYes[2018] 2 SLR 159N/ACited for the principle that the court must consider whether the plaintiff applying for Mareva relief truly has no genuine interest in obtaining a legal remedy through the underlying action.
Power Solar System Co Ltd (in liquidation) v Suntech Power Investment Pte LtdHigh CourtYes[2018] SGHC 233SingaporeThe judgment in the Suit which was appealed against in CA 109/2018.

13. Applicable Rules

Rule Name
Rules of Court (Cap 322, R 5, 2014 Rev Ed)
O 18 r 19 of the Rules of Court
O 18 r 19(1)(d) of the Rules of Court 1996

14. Applicable Statutes

Statute NameJurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

  • Mareva injunction
  • Contumelious breach
  • Abuse of process
  • Disclosure of assets
  • Shanghai Suntech
  • Unless order
  • Contempt Order

15.2 Keywords

  • Mareva injunction
  • contempt of court
  • abuse of process
  • appeal
  • Suntech
  • Power Solar

17. Areas of Law

Area NameRelevance Score
Mareva Injunction95
Abuse of Process85
Injunctions75
Contempt of Court70
Civil Appeals60
Company Law30
Contract Law20
Bankruptcy15
Estoppel10

16. Subjects

  • Civil Procedure
  • Appeals
  • Injunctions
  • Abuse of Process
  • Contempt of Court