Mercantile & Maritime Investments Pte Ltd v Iceberg Energy Pte Ltd: Winding Up Application & Arbitration Stay
In Mercantile & Maritime Investments Pte Ltd v Iceberg Energy Pte Ltd, the General Division of the High Court of Singapore initially ordered the winding up of Iceberg Energy due to insolvency. However, after hearing further arguments, the court recalled its earlier order and dismissed the winding-up application. The court found that there was a dispute over the amount repayable under a loan facility and a potential cross-claim by Iceberg Energy against Mercantile & Maritime Investments, warranting a stay for arbitration. The judge was Ang Cheng Hock J.
1. Case Overview
1.1 Court
General Division of the High Court1.2 Outcome
Winding-up application dismissed.
1.3 Case Type
Insolvency
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court recalls winding-up order against Iceberg Energy, citing a dispute over debt and a potential cross-claim, warranting arbitration.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Mercantile & Maritime Investments Pte Ltd | Plaintiff | Corporation | Application Dismissed | Lost | |
| Iceberg Energy Pte Ltd | Defendant | Corporation | Winding-up application dismissed | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Ang Cheng Hock | Judge of the High Court | Yes |
4. Counsels
4. Facts
- MMI filed Companies Winding Up No 81 of 2021 to wind up IEL.
- MMI extended loans to IEL between September 2019 and February 2020.
- MMI and Mr Ghai executed a Letter of Intent on 13 August 2020 regarding a Proposed Investment.
- MMI issued a letter of demand to IEL on 6 April 2021.
- MMI served a statutory demand on IEL on 14 April 2021.
- IEL argued that the Loan Facility was not repayable at the time when the SD was issued.
- IEL argued that it had a valid cross-claim of US$9,452,071.68 against MMI.
5. Formal Citations
- Mercantile & Maritime Investments Pte Ltd v Iceberg Energy Pte Ltd and another matter, Companies Winding Up No 81 of 2021 and Summons No 3994 of 2021, [2022] SGHC 64
6. Timeline
| Date | Event |
|---|---|
| Convertible loan agreement entered into between Mercantile & Maritime Trading Pte Ltd and Iceberg Energy Pte Ltd. | |
| Loan agreement entered into between Mercantile & Maritime Trading Pte Ltd and Iceberg Energy Pte Ltd. | |
| Loan Facility agreement entered into between Mercantile & Maritime Investments Pte Ltd and Iceberg Energy Pte Ltd. | |
| Repayment date stipulated in Loan Facility. | |
| Letter of Intent executed between Mercantile & Maritime Investments Pte Ltd and Mr Anshuman Ghai. | |
| Supplemental Letter executed extending the term of the Letter of Intent to 9 May 2021. | |
| Mercantile & Maritime Investments Pte Ltd issued a letter of demand to Iceberg Energy Pte Ltd. | |
| Iceberg Energy Pte Ltd replied to the Letter of Demand. | |
| Mercantile & Maritime Investments Pte Ltd served a statutory demand on Iceberg Energy Pte Ltd. | |
| Iceberg Energy Pte Ltd responded to the statutory demand. | |
| Mercantile & Maritime Investments Pte Ltd filed Companies Winding Up No 81 of 2021. | |
| Hearing of Companies Winding Up No 81 of 2021; order made for Iceberg Energy Pte Ltd to be wound up. | |
| Christopher Bridges Law Corporation requested further arguments for Companies Winding Up No 81 of 2021. | |
| Allen & Gledhill LLP submitted that Iceberg Energy Pte Ltd’s request for further arguments should be rejected. | |
| Iceberg Energy Pte Ltd filed an affidavit by Mr Ghai in support of its further arguments. | |
| Mercantile & Maritime Investments Pte Ltd filed its responsive affidavit. | |
| Hearing for further arguments. | |
| Summons No 3994 of 2021 and Iceberg Energy Pte Ltd’s further arguments were heard. | |
| Judgment delivered. |
7. Legal Issues
- Whether the Loan Facility was repayable at the date when the Statutory Demand was issued
- Outcome: The court found that there was a prima facie dispute over whether there was an implied term in the Letter of Intent that MMI would not call for repayment of the Loan Facility during the Exclusivity Period.
- Category: Substantive
- Sub-Issues:
- Implied agreement not to recall Loan Facility
- Implied term in Letter of Intent
- Whether IEL had a valid cross-claim against MMI exceeding the Outstanding Sum in respect of work done for the Wholesale Business
- Outcome: The court was satisfied that IEL had shown that it enjoyed a genuine and substantial cross-claim of US$9,452,071.68 against MMI for sums due from the parties’ collaboration on the Wholesale Business.
- Category: Substantive
- Abuse of Process
- Outcome: The court did not accept MMI’s submission that IEL had acted in abuse of process by attempting to make further arguments which were not the same as those that had been set out in the 19 Jul Letter.
- Category: Procedural
8. Remedies Sought
- Order that Iceberg Energy Pte Ltd be wound up
9. Cause of Actions
- Winding up
10. Practice Areas
- Winding Up
- Commercial Litigation
- Arbitration
11. Industries
- Oil and Gas
- Shipping
- Logistics
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Re Sanpete Builders (S) Pte Ltd | High Court | Yes | [1989] 1 SLR(R) 5 | Singapore | Cited for the principle that refusal to pay any sum at all would still trigger the operation of the presumption of insolvency in s 125(2)(a) of the IRDA. |
| JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others | Court of Appeal | Yes | [2018] 2 SLR 159 | Singapore | Cited for the definition of abuse of process. |
| ARW v Comptroller of Income Tax and another and another appeal | Court of Appeal | Yes | [2019] 1 SLR 499 | Singapore | Cited for the principle that the process of hearing further arguments is meant to give the court an opportunity to review its decision whenever it is open to the possibility of changing its mind and that further evidence may be allowed in support of new arguments, but should not be allowed where the evidence is sought to support or strengthen previously raised arguments. |
| Aberdeen Asset Management Asia Ltd and another v Fraser & Neave Ltd and others | High Court | Yes | [2001] 3 SLR(R) 355 | Singapore | Cited for the principle that the process of hearing further arguments is meant to give the court an opportunity to review its decision whenever it is open to the possibility of changing its mind. |
| AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) | Court of Appeal | Yes | [2020] 1 SLR 1158 | Singapore | Cited for the principles regarding the standard of review for stay or dismissal of a winding-up application, the distinction between the triable issue standard and the prima facie standard of review, and the threshold for abusive conduct. |
| Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal | Court of Appeal | Yes | [2008] 2 SLR(R) 491 | Singapore | Cited for the principles regarding the standard of review for stay or dismissal of a winding-up application. |
| LKM Investment Holdings Pte Ltd v Cathay Theatres Pte Ltd | High Court | Yes | [2000] 1 SLR(R) 135 | Singapore | Cited for the definition of a substantial and bona fide dispute. |
| Tjong Very Sumito and others v Antig Investments Pte Ltd | High Court | Yes | [2009] 4 SLR(R) 732 | Singapore | Cited for the principle that where there is an arbitration agreement between the parties, it suffices for the debtor to show a prima facie dispute or cross-claim which falls within the scope of that agreement and for the key distinction between the triable issue standard and the prima facie standard of review. |
| Sembcorp Marine Ltd v PPL Holdings Pte Ltd and another and another appeal | Court of Appeal | Yes | [2013] 4 SLR 193 | Singapore | Cited for the basis for the implication of terms. |
| Thio Keng Poon v Thio Syn Pyn and others and another appeal | Court of Appeal | Yes | [2010] 3 SLR 143 | Singapore | Cited for the principles regarding procedural irregularities. |
| Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd | Supreme Court of New South Wales | Yes | [2005] NSWSC 1005 | Australia | Cited for the distinction between procedural and substantive irregularities. |
| Dalian Hualiang Enterprise Group Co Ltd and another v Louis Dreyfus Asia Pte Ltd | High Court | Yes | [2005] 4 SLR(R) 646 | Singapore | Cited for the principle that an arbitration clause would not cover a dispute that is unrelated to the transaction covered by the contract in which the arbitration clause is found. |
| Re Dayang Construction and Engineering Pte Ltd | High Court | Yes | [2002] 2 SLR(R) 197 | Singapore | Cited for the principle that a statutory demand must comply with the procedural requirements in s 125(2)(a) of the IRDA as to form or wording. |
| BNP Paribas v Jurong Shipyard Pte Ltd | High Court | Yes | [2009] 2 SLR(R) 949 | Singapore | Cited for the principle that a statutory demand must comply with the procedural requirements in s 125(2)(a) of the IRDA as to form or wording. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Insolvency, Restructuring and Dissolution Act 2018 | Singapore |
| s 125(1)(e) of the Insolvency, Restructuring and Dissolution Act 2018 | Singapore |
| s 125(2)(a) of the Insolvency, Restructuring and Dissolution Act 2018 | Singapore |
| s 29B(2) of the Supreme Court of Judicature Act | Singapore |
| s 264 of the Insolvency, Restructuring and Dissolution Act 2018 | Singapore |
| Companies Act 1967 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Winding up
- Loan Facility
- Letter of Intent
- Statutory Demand
- Cross-claim
- Exclusivity Period
- Wholesale Business
- Retail Project
- Proposed Investment
15.2 Keywords
- Winding up
- Arbitration
- Insolvency
- Loan
- Cross-claim
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Winding Up | 95 |
| Arbitration | 60 |
| Civil Procedure | 40 |
| Company Law | 30 |
16. Subjects
- Insolvency
- Arbitration
- Civil Procedure
- Company Law