Re Kirkham International: Retrospective Solicitor Appointment Under IRDA
Mr. Medora Xerxes Jamshid, the liquidator of Kirkham International Pte Ltd, applied to the General Division of the High Court of Singapore on 8 November 2022 for authorization to appoint solicitors from Selvam LLC, with retrospective effect from 28 April 2021. The application arose because the liquidator had previously appointed solicitors without court authorization, as required by s 144(1)(f) of the Insolvency, Restructuring and Dissolution Act. Goh Yihan JC refused the retrospective authorization but allowed the legal costs incurred since April 2021 to be paid from the company's assets. The court authorized the appointment of solicitors from the date of the resulting order.
1. Case Overview
1.1 Court
General Division of the High Court of the Republic of Singapore1.2 Outcome
Applicant authorized to appoint solicitors from the date of the order, with legal costs to be paid from the assets of the company.
1.3 Case Type
Insolvency
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Liquidator seeks retrospective approval to appoint solicitors. Court considers IRDA s 144(1) and refuses retrospective authorization, but allows payment from company assets.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Medora Xerxes Jamshid | Applicant | Individual | Application Granted in Part | Partial | |
| Kirkham International Pte Ltd (in compulsory liquidation) | Other | Corporation |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Goh Yihan | Judicial Commissioner | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Cumara Kamalacumar | Selvam LLC |
| Soo Ziyang Daniel | Selvam LLC |
4. Facts
- The Applicant was appointed as the liquidator of Kirkham International Pte Ltd on 22 November 2020.
- The company was wound up because it was just and equitable to do so.
- The Applicant engaged KPMG to conduct forensics investigations on 6 September 2021.
- The Applicant appointed solicitors from Selvam LLC on or around 28 April 2021 without prior authorization.
- DB International Trust (Singapore) Limited commenced an originating application in HC/OA 707/2022 seeking the removal of the Applicant as liquidator.
- The Applicant filed the present application on 8 November 2022 to appoint solicitors from Selvam LLC.
5. Formal Citations
- Re Kirkham International Pte Ltd (in compulsory liquidation), Companies Winding Up No 192 of 2020 (Summons No 4037 of 2022), [2023] SGHC 19
6. Timeline
| Date | Event |
|---|---|
| Mr. Medora Xerxes Jamshid appointed as liquidator of Kirkham International Pte Ltd. | |
| Applicant appointed solicitors from Selvam LLC. | |
| Originating Summons No 430 of 2021 dismissed by the High Court. | |
| Applicant engaged KPMG Service Pte Ltd to conduct forensics investigations. | |
| DB International Trust (Singapore) Limited commenced originating application HC/OA 707/2022. | |
| Applicant filed application to appoint solicitors from Selvam LLC. | |
| Applicant formally appointed solicitors from Selvam LLC to act for him with effect from 20 October 2022, subject to the court’s authorisation. | |
| Hearing of the application. | |
| Judgment reserved. |
7. Legal Issues
- Retrospective Authorization of Solicitor Appointment
- Outcome: The court held that it does not have the power to retrospectively authorize the appointment of a solicitor under s 144(1)(f) of the Insolvency, Restructuring and Dissolution Act.
- Category: Substantive
- Liquidator's Power to Appoint Solicitors
- Outcome: The court held that a liquidator must obtain authorization from the court or the committee of inspection before appointing a solicitor.
- Category: Substantive
8. Remedies Sought
- Authorization to appoint solicitors
- Retrospective authorization of solicitor appointment
9. Cause of Actions
- No cause of actions
10. Practice Areas
- Winding Up
- Liquidation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Subterranean Natural Mineral Water Sdn Bhd v Kho Boon Kwang | Malaysian High Court | Yes | [2002] 2 MLJ 439 | Malaysia | Interpreted sections of the Malaysian Companies Act 1965, substantively similar to sections of the Singapore Companies Act, regarding the liquidator's power to appoint a solicitor. |
| Re Moulin Global Eyecare Trading Ltd | Hong Kong Court of First Instance | Yes | [2019] 4 HKLRD 643 | Hong Kong | Discussed the court's power to grant retrospective sanction to a liquidator's appointment of solicitors. |
| Re Curruthers Limited | Court of First Instance | Yes | Re Curruthers Limited (23 February 2005, Court of First Instance) (Hong Kong) | Hong Kong | Cited as a decision that took the position that the court has power to grant retrospective sanction to a liquidator’s appointment of solicitors to assist him in the performance of his duties. |
| Re Newsweb International Limited | Court of First Instance | Yes | Re Newsweb International Limited (20 April 2007, Court of First Instance) (Hong Kong) | Hong Kong | Explained that the Hong Kong courts’ power to grant retrospective sanction was grounded in s 200(3) of the Ordinance and held that this section “permits the court to authorise whether prospectively or retrospectively a variety of payments…” |
| In re Associated Travel Leisure and Services Ltd (in liquidation) | English High Court | Yes | [1978] 1 WLR 547 | England and Wales | Justified the court’s power to grant retrospective sanction in relation to the appointment of a solicitor by reference to s 246(3) of the Companies Act 1948 (UK) and the inherent power of the court. |
| Kang Wah Construction Sdn Bhd v Chan Ai Min Property Sdn Bhd | Malaysian High Court | Yes | [1999] 4 MLJ 262 | Malaysia | Held that a liquidator could still appoint a solicitor without the authorization of the court or the COI and the absence of such authority does not render the action incompetent nor deny the solicitor of standing. |
| Re The English and Scottish Marine Insurance Company (Limited) | English Court of Appeal | Yes | (1870) 23 LT (NS) 685 | England and Wales | Held that a compromise entered into by a liquidator was binding even without prior court consent. |
| Cyclemakers’ Co-operative Supply Company v Sims | English High Court | Yes | [1903] 1 KB 477 | England and Wales | Held that a compromise between a creditor and a liquidator cannot be objected to merely because the liquidator did not obtain court sanction. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Insolvency, Restructuring and Dissolution Act (Act 40 of 2018) | Singapore |
| s 125(1)(i) of the Insolvency, Restructuring and Dissolution Act | Singapore |
| s 144(1)(f) of the Insolvency, Restructuring and Dissolution Act | Singapore |
| ss 144(1)(e) and 144(1)(f) of the Insolvency, Restructuring and Dissolution Act | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Liquidator
- Winding up
- Retrospective authorization
- Committee of inspection
- Insolvency, Restructuring and Dissolution Act
- Solicitor appointment
15.2 Keywords
- Insolvency
- Winding up
- Liquidator
- Solicitor
- Appointment
- Retrospective
- Authorization
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Insolvency Law | 95 |
| Winding Up | 95 |
| Company Law | 60 |
| Civil Procedure | 30 |
| Costs | 20 |
16. Subjects
- Insolvency
- Company Law
- Civil Procedure