Superpark Oy v Super Park Asia: Provisional Liquidators & Voluntary Winding Up Dispute
Superpark Oy, the majority shareholder of Super Park Asia Group Pte Ltd (SPAG), appealed against a decision allowing provisional liquidators to dispose of SPAG's assets. The Court of Appeal of Singapore, comprising Andrew Phang Boon Leong JCA, Steven Chong JCA, and Quentin Loh JAD, delivered its judgment on February 11, 2021, allowing the appeal. The court held that a voluntary winding up requires a special resolution by the company's members and cannot be initiated solely by creditors. The court found that the liquidation process was improperly commenced and the provisional liquidators should not have been appointed.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
Appeal Allowed
1.3 Case Type
Insolvency
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Shareholder dispute over Super Park Asia's liquidation. Court of Appeal clarifies voluntary winding up requires special resolution.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Superpark Oy | Appellant, Applicant | Corporation | Appeal Allowed | Won | Chan Ming Onn David, Lee Ping (Li Ping), Swah Yeqin Shirin, Lin Ruizi |
| Super Park Asia Group Pte. Ltd. | Respondent | Corporation | Neutral | Neutral | |
| Luke Anthony Furler | Respondent | Individual | Lost | Lost | Ng Ka Luon Eddee, Kang Weisheng Geraint Edward, Seah Yan De Bryan, Thaddaeus Aaron Tan Yong Zhong, Joseph Lim Weisheng |
| Hubert Jen Wei Chang | Respondent | Individual | Lost | Lost | Ng Ka Luon Eddee, Kang Weisheng Geraint Edward, Seah Yan De Bryan, Thaddaeus Aaron Tan Yong Zhong, Joseph Lim Weisheng |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Andrew Phang Boon Leong | Justice of the Court of Appeal | Yes |
| Steven Chong | Justice of the Court of Appeal | No |
| Quentin Loh | Judge of the Appellate Division | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Chan Ming Onn David | Shook Lin & Bok LLP |
| Lee Ping (Li Ping) | Shook Lin & Bok LLP |
| Swah Yeqin Shirin | Shook Lin & Bok LLP |
| Lin Ruizi | Shook Lin & Bok LLP |
| Ng Ka Luon Eddee | Tan Kok Quan Partnership |
| Kang Weisheng Geraint Edward | Tan Kok Quan Partnership |
| Seah Yan De Bryan | Tan Kok Quan Partnership |
| Thaddaeus Aaron Tan Yong Zhong | Tan Kok Quan Partnership |
| Joseph Lim Weisheng | Tan Kok Quan Partnership |
4. Facts
- Superpark Oy is the majority shareholder of Super Park Asia Group Pte Ltd (SPAG).
- Kumarasinhe, a minority shareholder, initiated a board resolution to put SPAG in provisional liquidation without prior notice to Superpark Oy.
- Second and third respondents were appointed as provisional liquidators based on Kumarasinhe's resolution.
- Superpark Oy denied that a creditors’ voluntary winding up of SPAG had commenced.
- The appellant intended to vote against any resolution to wind up the company.
- The EGM to terminate the provisional liquidation of SPAG was called in an irregular manner.
- The special resolution to voluntarily wind-up the company failed.
5. Formal Citations
- Superpark Oy v Super Park Asia Group Pte Ltd and others, Civil Appeal No 160 of 2020, [2021] SGCA 8
6. Timeline
| Date | Event |
|---|---|
| Super Park Asia Group Pte Ltd incorporated in Singapore | |
| Kumarasinhe sent email to Juha expressing frustration about funding | |
| Wentzel sent email to Kumarasinhe expressing disappointment at lack of progress in complying with audit requirements | |
| Kumarasinhe tabled board resolution to put SPAG in provisional liquidation | |
| Second and third respondents appointed as joint and several provisional liquidators | |
| Appellant gave notice of EGM to terminate provisional liquidation of SPAG | |
| Second and third respondents indicated they were looking for urgent funding | |
| Second and third respondents issued Notice of a Meeting of Creditors of the Company | |
| Kumarasinhe submitted a Statement of Affairs for SPAG | |
| Second and third respondents commenced HC/OS 656/2020 | |
| Judge granted an order in terms of the injunction | |
| Appellant commenced HC/OS 671/2020 | |
| Hearing of SUM 2791 adjourned | |
| Extraordinary General Meeting held; resolutions to wind up company failed | |
| Creditors' Meeting commenced | |
| SUM 2791 heard alongside SUM 2859/2020 | |
| Hearing for SUM 2791 and SUM 2859/2020 | |
| Judge made order in resolution of both SUM 2791 and SUM 2859 | |
| Appellant commenced OS 761 for SPAG to be placed under judicial management | |
| Appellant filed SUM 3235/2020 for SPAG to be placed under interim judicial management | |
| Ang J granted order for IJM | |
| Leave to appeal entered by consent | |
| Appellant filed present appeal (CA 160/2020) | |
| Court hearing | |
| Judgment delivered |
7. Legal Issues
- Voluntary Winding Up
- Outcome: The court held that a voluntary winding up requires a special resolution by the company's members and cannot be initiated solely by creditors.
- Category: Substantive
- Sub-Issues:
- Commencement of voluntary winding up
- Termination of voluntary winding up
- Requirement of special resolution
- Provisional Liquidators
- Outcome: The court held that the appointment of provisional liquidators does not automatically trigger a voluntary winding up.
- Category: Procedural
- Sub-Issues:
- Appointment of provisional liquidators
- Powers of provisional liquidators
- Termination of provisional liquidators' appointment
8. Remedies Sought
- Declaration that the provisional liquidation and any voluntary winding up of SPAG be terminated
- Injunction restraining the second and third respondents from taking any further steps in the provisional liquidation
9. Cause of Actions
- Breach of Director's Duties
- Breach of Shareholder Rights
10. Practice Areas
- Insolvency
- Liquidation
- Corporate Restructuring
11. Industries
- Recreation
- Hospitality
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Sinfeng Marine Services Pte Ltd v Taylor, Joshua James and another and other appeals | Court of Appeal | Yes | [2020] 2 SLR 1332 | Singapore | Cited for the policy distinction between voluntary and compulsory liquidations. |
| Petroships Investment Pte Ltd v Wealthplus Pte Ltd (in members’ voluntary liquidation) (Koh Brothers Building & Civil Engineering Contractor (Pte) Ltd and another, interveners) and another matter | High Court | Yes | [2018] 3 SLR 687 | Singapore | Cited for the view that the distinction between voluntary and compulsory liquidation also has a bearing on the powers of the liquidators. |
| Re Phoenix Oil and Transport Co Ltd (No. 2) | English High Court | Yes | [1958] Ch 565 | England and Wales | Cited for the policy distinction between voluntary and compulsory liquidations. |
| Interocean Holdings Group (BVI) Ltd v Zi-Techasia (Singapore) Pte ltd (in liquidation) | High Court | No | [2014] 2 SLR 485 | Singapore | Cited for the principle that the only way a company being wound up can be put back into its former state is by way of a court order staying the winding-up proceedings. |
| Eversendai Engineering Pte Ltd v Synergy Construction Pte Ltd (Ministry of Education, Third Party) | High Court | No | [2004] SGHC 129 | Singapore | Cited for the principle that the voluntary winding-up commences once s 291(6)(a) of the CA is complied with and it does not require the resolution to be passed first. |
| Ross v P J Heeringa Limited | New Zealand High Court | No | [1970] NZLR 170 | New Zealand | Cited for the principle that a resolution for voluntary winding-up, properly passed, as an irrevocable step. |
| Ganda Setia Cemerlang Sdn Bhd & Anor v Maika Holdings Bhd (in liquidation) | Malaysian Court | No | [2017] 6 MLJ 661 | Malaysia | Cited for the principle that where the company is wound up voluntarily, s 263(2) carries a similar requirement on leave as that found in s 226(3). |
| Korea Asset Management Corp v Daewoo Singapore Pte Ltd (in liquidation) | High Court | No | [2004] 1 SLR(R) 671 | Singapore | Cited for governing situations involving concurrent applications. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Companies Act (Cap 50, 2006 Rev Ed) | Singapore |
| Section 290 of the Companies Act | Singapore |
| Section 291 of the Companies Act | Singapore |
| Section 291(6) of the Companies Act | Singapore |
| Insolvency, Restructuring and Dissolution Act (No 40 of 2018) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Voluntary winding up
- Provisional liquidators
- Special resolution
- Creditors' meeting
- Extraordinary general meeting
- Insolvency
- Liquidation process
- Judicial management
- Shareholder dispute
- Directors' resolution
15.2 Keywords
- Winding up
- Liquidation
- Insolvency
- Provisional liquidator
- Shareholder dispute
16. Subjects
- Insolvency Law
- Company Law
- Corporate Law
17. Areas of Law
- Insolvency Law
- Company Law
- Civil Procedure