Then Feng v Contingent Creditors: Debtor's Bankruptcy Application and Statement of Affairs

In Bankruptcy No 868 of 2021, the Singapore High Court heard an application by Mr. Then Feng to declare himself bankrupt. Several contingent creditors intervened, opposing the application. The court, presided over by AR Reuben Ong, considered whether creditors have a right to be heard in a debtor's bankruptcy application, the test for dismissing an application for contravening the Insolvency, Restructuring and Dissolution Act 2018 (IRDA), and the test for dismissing or staying an application due to the debtor's failure to prove inability to pay debts. The court dismissed the bankruptcy application due to Mr. Then Feng's incomplete Statement of Affairs.

1. Case Overview

1.1 Court

General Division of the High Court

1.2 Outcome

Bankruptcy Application Dismissed

1.3 Case Type

Insolvency

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court dismissed Then Feng's bankruptcy application due to an incomplete Statement of Affairs, affecting creditors' rights.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Then FengApplicantIndividualApplication DismissedDismissedOommen Mathew, Brendan Yeo
Chew Funn Loong ColinRespondentIndividualSuccessful OppositionWonJaime Lye, Kenji Ong
Marcus Lim YiRespondentIndividualSuccessful OppositionWonJaime Lye, Kenji Ong
Providence Asset ManagementRespondentCorporationSuccessful OppositionWonDaniel Chia, Ker Yanguang
5 And 2 Pte LtdRespondentCorporationSuccessful OppositionWonDaniel Chia, Ker Yanguang
Michael Joseph MillsoppRespondentIndividualSuccessful OppositionWonKelyn Lee, Linus Lin
The Micro Tellers Network LimitedRespondentCorporationSuccessful OppositionWonAdrian Tan, Hari Veluri, Feng Chong We, Lingesh Kumar
Michael Lin DaojiRespondentIndividualSuccessful OppositionWonAdrian Tan, Hari Veluri, Feng Chong We, Lingesh Kumar
Rio Lim Yong CheeRespondentIndividualSuccessful OppositionWonAdrian Tan, Hari Veluri, Feng Chong We, Lingesh Kumar
Wong Zhi Kang ClementRespondentIndividualSuccessful OppositionWonAdrian Tan, Hari Veluri, Feng Chong We, Lingesh Kumar

3. Judges

Judge NameTitleDelivered Judgment
Reuben OngAssistant RegistrarYes

4. Counsels

Counsel NameOrganization
Oommen MathewOmni Law LLC
Brendan YeoOmni Law LLC
Jaime LyeFullerton Law Chambers LLC
Kenji OngFullerton Law Chambers LLC
Daniel ChiaMorgan Lewis Stamford LLC
Ker YanguangMorgan Lewis Stamford LLC
Kelyn LeeLee & Lee
Linus LinLee & Lee
Adrian TanTSMP Law Corporation
Hari VeluriTSMP Law Corporation
Feng Chong WeTSMP Law Corporation
Lingesh KumarTSMP Law Corporation
Daniel TanShook Lin & Bok LLP
Daryl ChengShook Lin & Bok LLP

4. Facts

  1. The Applicant filed a bankruptcy application with debts totaling S$431,781.45.
  2. The Applicant declared four contingent liabilities in the form of legal claims against him.
  3. The Applicant declared cash assets of S$3.53 and a sundry debt of S$16,329 owed to him.
  4. The Applicant declared substantial contingent assets, including debts owed by Frederic Willy Gaillard and Edward Young Han.
  5. The Suit 5 Plaintiffs submitted that the Applicant had failed to disclose sums totaling US$5,148,000 and S$973,000 deposited into the account of Walkers Professional Services Limited.
  6. The Applicant disclosed disposal of assets generating net sale proceeds of $1,257,186.29, but did not account for them in the SOA.
  7. The Applicant claimed Edward Young Han misappropriated monies and made unauthorized charges on his Amex card, but did not list Amex as a creditor.

5. Formal Citations

  1. Re Then Feng, Bankruptcy No 868 of 2021, [2022] SGHCR 1

6. Timeline

DateEvent
Bankruptcy application filed
Judgment granted against the Applicant in HC/S 326/2019
First hearing of the bankruptcy application
Suit 8 Plaintiffs filed Summons No 2538 of 2021
Hearing of SUM 2538
Suit 326 Judgment Creditors filed Summons No 2841 of 2021
Suit 5 Plaintiffs filed Summons No 3256 of 2021
Court found the Applicant’s Statement of Affairs incomplete and adjourned the hearing
Bankruptcy application dismissed

7. Legal Issues

  1. Completeness and Accuracy of Statement of Affairs
    • Outcome: The court found that the Applicant failed to file a complete and accurate Statement of Affairs, contravening s 308(2)(a) of the IRDA.
    • Category: Substantive
    • Sub-Issues:
      • Failure to disclose assets
      • Failure to disclose disposal of assets
  2. Right of Creditors to be Heard in Debtor's Bankruptcy Application
    • Outcome: The court held that r 14(2) and 14(3) of the PIR apply to debtor's bankruptcy applications, entitling creditors who may be affected to be heard.
    • Category: Procedural
  3. Test for Dismissing Debtor's Bankruptcy Application
    • Outcome: The court held that it may dismiss a bankruptcy application under s 315(2) of the IRDA where the applicant has contravened the IRDA or PIR, especially if the contravention affects the court's ability to fairly decide the application.
    • Category: Procedural
  4. Debtor's Inability to Pay Debts
    • Outcome: The court stated that it must be satisfied that the debtor is unable to pay his debts before making a bankruptcy order, applying the cash flow test.
    • Category: Substantive

8. Remedies Sought

  1. Bankruptcy Order

9. Cause of Actions

  • Bankruptcy

10. Practice Areas

  • Insolvency
  • Bankruptcy Law
  • Litigation

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Sun Electric Power Pte Ltd v RCMA Asia Pte Ltd (formerly known as Tong Teik Pte Ltd)Court of AppealYes[2021] 2 SLR 478SingaporeApplied the cash flow test for determining insolvency in the context of a company to the bankruptcy of an individual.
Mohd Zain bin Abdullah v Chimbusco International Petroleum (Singapore) Pte Ltd and another appealN/AYes[2014] 2 SLR 446SingaporeEstablished the 'triable issue' threshold for a debtor seeking a stay or dismissal of bankruptcy proceedings.
F v F (Divorce: Insolvency: Annulment of Bankruptcy Order)High Court of England and WalesYes[1994] 1 FLR 359England and WalesCited for the principle that dishonesty and lack of candor can amount to an abuse of process warranting the annulment of a bankruptcy order.
Paulin v PaulinEnglish Court of AppealYes[2010] 1 WLR 1057England and WalesCited for the principle that a debtor who makes a substantially dishonest statement of affairs will find it difficult to resist annulment of the bankruptcy order.

13. Applicable Rules

Rule Name
r 14(2) of the Insolvency, Restructuring and Dissolution (Personal Insolvency) Rules 2020
r 14(3) of the Insolvency, Restructuring and Dissolution (Personal Insolvency) Rules 2020
r 3(a) of the Insolvency, Restructuring and Dissolution (Personal Insolvency) Rules 2020
rr 104 and 105 of the Insolvency, Restructuring and Dissolution (Personal Insolvency) Rules 2020
r 102 of the PIR

14. Applicable Statutes

Statute NameJurisdiction
Insolvency, Restructuring and Dissolution ActSingapore
s 315(2) of the Insolvency, Restructuring and Dissolution Act 2018Singapore
s 308(2)(a) of the Insolvency, Restructuring and Dissolution ActSingapore
s 316(3)(c) of the Insolvency, Restructuring and Dissolution ActSingapore
s 318(1) of the Insolvency, Restructuring and Dissolution ActSingapore
s 254(2)(c) of the Companies ActSingapore
s 327(1)(c) of the IRDASingapore
s 104 of the Evidence Act (Cap 97, 1997 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Statement of Affairs
  • Bankruptcy Application
  • Contingent Creditors
  • Insolvency
  • Cash Flow Test
  • Debtor
  • Creditor
  • WPS Sums
  • Net Sale Proceeds
  • Amex Debts

15.2 Keywords

  • Bankruptcy
  • Insolvency
  • Statement of Affairs
  • Creditors' Rights
  • Singapore
  • High Court
  • Debtor
  • Contingent Creditors

16. Subjects

  • Bankruptcy Law
  • Insolvency Law
  • Civil Procedure

17. Areas of Law

  • Insolvency Law
  • Bankruptcy
  • Civil Procedure