Re Thresh: Recognition of Bermuda Winding-Up Order under UNCITRAL Model Law
The High Court of Singapore granted an application by Charles Thresh and Michael Morrison, joint provisional liquidators, to recognize proceedings before the Supreme Court of Bermuda concerning British Steamship Protection and Indemnity Association (Bermuda) Limited under the UNCITRAL Model Law on Cross-Border Insolvency. The court, presided over by Hri Kumar Nair J, found that the Bermuda proceedings met the requirements for recognition as a foreign proceeding, despite opposition from British Steamship Protection And Indemnity Association Limited and British Steamship Management Ltd. The judgment was delivered on 30 November 2023.
1. Case Overview
1.1 Court
General Division of the High Court1.2 Outcome
Application allowed.
1.3 Case Type
Insolvency
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court recognizes Bermuda winding-up order for British Steamship Protection, addressing cross-border insolvency and regulatory compliance.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| British Steamship Protection And Indemnity Association Limited | Non-party | Corporation | Objections Dismissed | Lost | |
| British Steamship Management Ltd | Non-party | Corporation | Objections Dismissed | Lost | |
| Charles Thresh | Applicant | Individual | Application allowed | Won | |
| Michael Morrison | Applicant | Individual | Application allowed | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Hri Kumar Nair | Judge of the High Court | Yes |
4. Counsels
4. Facts
- The Company was an insurer licensed in Bermuda.
- The Bermuda Monetary Authority (BMA) filed a petition to wind up the Company due to regulatory non-compliance.
- The Supreme Court of Bermuda issued a Winding-Up Order on 28 October 2022.
- The Applicants are the joint provisional liquidators appointed by the Supreme Court of Bermuda.
- The Non-Parties opposed the recognition of the Bermuda proceeding in Singapore.
- The Company failed to appoint an approved auditor and file statutory financial returns.
- The Company's business operations were conducted from offices in China, Ukraine and Russia.
5. Formal Citations
- Re Thresh, Charles and another (British Steamship Protection and Indemnity Association Ltd and another, non-parties), Originating Application 697 of 2023, [2023] SGHC 337
6. Timeline
| Date | Event |
|---|---|
| Petition filed by the Bermuda Monetary Authority to wind up the Company | |
| Winding-Up Order issued by the Supreme Court of Bermuda | |
| First Affidavit of Michael Morrison filed | |
| First Affidavit of Li Yu filed | |
| Affidavit of Charles Thresh filed | |
| Hearing date | |
| First Affidavit of Nicholas Patrick Howard filed | |
| Judgment reserved | |
| Judgment delivered |
7. Legal Issues
- Recognition of Foreign Proceeding
- Outcome: The court allowed the application for recognition of the foreign proceeding.
- Category: Substantive
- Definition of Foreign Proceeding
- Outcome: The court found that the Bermuda proceeding met the definition of a foreign proceeding under Article 2(h).
- Category: Substantive
- Public Policy Exception
- Outcome: The court held that recognition of the Bermuda proceeding was not contrary to Singapore's public policy.
- Category: Substantive
- Centre of Main Interests (COMI)
- Outcome: The court determined that Bermuda was the Company's COMI.
- Category: Jurisdictional
- Jurisdiction of Singapore Courts
- Outcome: The court found that it had jurisdiction to recognize the proceeding under Article 4(2)(b) of the SG Model Law.
- Category: Jurisdictional
8. Remedies Sought
- Recognition of Foreign Proceeding
- Orders to facilitate the liquidation process in Singapore
9. Cause of Actions
- Winding-up Petition
- Recognition of Foreign Proceeding
10. Practice Areas
- Cross-Border Insolvency
- Recognition of Foreign Proceedings
11. Industries
- Insurance
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Ascentra Holdings, Inc (in official liquidation) and others v SPGK Pte Ltd | Court of Appeal | Yes | [2023] SGCA 32 | Singapore | Dealt with the interpretation and application of provisions of the SG Model Law relevant to this application, and which is binding on me. |
| United Securities Sdn Bhd (in receivership and liquidation) and another v United Overseas Bank Ltd | N/A | Yes | [2021] 2 SLR 950 | Singapore | Cited for the principle that the term “collective” includes proceedings involving an insolvency representative being able to control the realisation of assets for the purpose of pro rata distribution among all creditors. |
| In re Global Cord Blood Corporation | N/A | No | 2022 WL 17478530 | SD NY | Distinguished; cited for the proposition that in order for a proceeding to be “collective”, all creditors must receive notice of the same, but found not to support that broad submission. |
| Innovative Corp Pte Ltd v Ow Chun Ming and another | N/A | Yes | [2023] 3 SLR 1488 | Singapore | Cited for the court's discretion under s 47(4) of the Evidence Act 1893 (2020 Rev Ed) to vary the weight accorded to expert evidence because of an expert’s lack of independence. |
| Re Zetta Jet Pte Ltd and others | High Court | Yes | [2018] 4 SLR 801 | Singapore | Observed that under the Model Law, the court can only deny recognition on this ground if recognition is “manifestly contrary” to public policy, but the SG Model Law omits the word “manifestly”. The court surmised that that the omission was deliberate, and this meant that the standard of exclusion on public policy grounds in Singapore is lower than in other jurisdictions |
| UKM v Attorney-General | N/A | Yes | [2019] 3 SLR 874 | Singapore | Held that the alleged public policy relied on by a party must be shown to be attributable to a constitutionally authoritative source (such as legislation, statements made by Cabinet ministers, and judicial decisions) which clearly expresses the policy. |
| Paulus Tannos v Heince Tombak Simanjuntak and others and another appeal | N/A | No | [2020] 2 SLR 1061 | Singapore | Distinguished; cited regarding the recognition of bankruptcy orders made in Indonesia against the individual appellants. |
| Re Tantleff, Alan | N/A | Yes | [2023] 3 SLR 250 | Singapore | Cited regarding the centre of gravity of the Company’s commercial activity when it was carrying on business. |
| Tan Cheng Bock v Attorney-General | N/A | Yes | [2017] 2 SLR 850 | Singapore | Cited regarding statutory interpretation in Singapore following the purposive approach. |
| American Energy Group Ltd v Hycarbex Asia Ltd | N/A | Yes | [2014] EWHC 1091 (Ch) | England and Wales | The court there noted that Art 4(2) was not meant to impose a jurisdictional requirement for the courts to perform the functions relating to recognition of foreign proceedings. Rather, the provision was only meant to allocate jurisdiction as between the courts of England and Wales and the courts of Scotland |
| Lau Yu v Patrick Cowley & Anor | N/A | No | [2020] EWHC 2429 (Ch) | England and Wales | The court observed that Art 4(2) may impose a jurisdictional requirement which must be satisfied together with the requirements under Art 17(1) |
13. Applicable Rules
| Rule Name |
|---|
| Companies (Winding-Up) Rules 1982 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Insolvency, Restructuring and Dissolution Act 2018 | Singapore |
| Section 252 of the Insolvency, Restructuring and Dissolution Act 2018 | Singapore |
| Companies Act 1981 | Bermuda |
| Bermuda Insurance Act 1978 | Bermuda |
| Section 16 of the Bermuda Insurance Act | Bermuda |
| Section 18 of the Bermuda Insurance Act | Bermuda |
| Section 8 of the Bermuda Insurance Act | Bermuda |
| Section 62 of the Companies Act 1981 | Bermuda |
| Section 130 of the Companies Act 1981 | Bermuda |
| Section 175 of the CA 1981 | Bermuda |
| Interpretation Act 1965 | Singapore |
| Companies Act 1967 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- UNCITRAL Model Law
- Cross-Border Insolvency
- Foreign Proceeding
- Winding-Up Order
- Bermuda Monetary Authority
- Centre of Main Interests
- Public Policy
- Provisional Liquidators
15.2 Keywords
- Insolvency
- Cross-border
- Recognition
- Bermuda
- Singapore
- Liquidation
- Companies Act
- Insurance Act
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Winding Up | 95 |
| Cross-Border Insolvency | 90 |
| Restructuring and Dissolution | 75 |
| Bankruptcy | 70 |
| Company Law | 65 |
| International Law | 60 |
16. Subjects
- Insolvency
- Cross-Border Insolvency
- Company Law