Gunvor SA v Atlantis Commodities Trading: Winding Up Application Dispute

Gunvor SA filed a winding up application against Atlantis Commodities Trading Pte Ltd in the General Division of the High Court of Singapore, Companies Winding Up No 87 of 2024, based on an unpaid statutory demand of US$1,030,575.76. Atlantis Commodities Trading opposed the application, arguing improper service of the statutory demand and cause papers, disputing the outstanding debt, and asserting a cross-claim of US$8,253,053.00. Justice Hri Kumar Nair dismissed the winding up application, finding that Gunvor SA failed to prove proper service of the statutory demand and that Atlantis Commodities Trading had raised triable issues regarding the disputed debt.

1. Case Overview

1.1 Court

General Division of the High Court

1.2 Outcome

Winding up application dismissed.

1.3 Case Type

Insolvency

1.4 Judgment Type

Ex Tempore judgment

1.5 Jurisdiction

Singapore

1.6 Description

Winding up application based on unpaid debt. Court dismissed the application due to improper service and disputed debt.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Gunvor SAClaimantCorporationApplication DismissedLost
Atlantis Commodities Trading Pte LtdDefendantCorporationWinding up application dismissedWon

3. Judges

Judge NameTitleDelivered Judgment
Hri Kumar NairJudge of the High CourtYes

4. Counsels

Counsel NameOrganization
Karnan s/o ThirupathyLegal Solutions LLC
Charlene Sim YanLegal Solutions LLC
Chan Ji Kin ThaddaeusLegal Solutions LLC
Tan Poh Ling WendyMorgan Lewis Stamford LLC
Kelley Wong Kar EeMorgan Lewis Stamford LLC
Xu Hongli TerryMorgan Lewis Stamford LLC

4. Facts

  1. The claimant issued a statutory demand seeking payment of US$1,030,575.76 from the defendant.
  2. The statutory demand was purportedly served on the defendant at its registered address.
  3. The claimant filed an application to wind up the defendant based on the unpaid statutory demand.
  4. The defendant opposed the winding up application on several grounds, including improper service and disputed debt.
  5. The defendant's registered office is located at a co-working space operated by "The Executive Centre".
  6. The claimant's service agent left the statutory demand at the reception of "The Executive Centre".
  7. The defendant claims the cause papers were found in the "mailbox for The Executive Office (sic)" in the basement.
  8. The defendant alleges that it did not enter the S&P Contract, the Settlement Agreement or the Payment Deferral Agreement.
  9. The defendant claims that Mr Newman’s signatures on the Settlement Agreement and the Payment Deferral Agreement were forged.
  10. The defendant claims that payments made to the claimant were not made pursuant to the Alleged Contracts, but to various pre-payment invoices issued by the claimant for gasoline to be delivered by the claimant to the defendant.

5. Formal Citations

  1. Gunvor SA v Atlantis Commodities Trading Pte Ltd, Companies Winding Up No 87 of 2024, [2024] SGHC 192

6. Timeline

DateEvent
Compliance Registration Form signed
Settlement Agreement signed
Price Trigger option declarable by defendant
Pricing period begins
Pricing period ends
Claimant notified defendant of total sum payable under Settlement Agreement
Payment Deferral Agreement signed
Last instalment under the Settlement Agreement was to be paid
Statutory Demand issued
Supporting affidavit of Thierry Jacot dated
Cause Papers provided to defendant’s solicitors by way of e-mail
Defendant formally demanded repayment
Judgment delivered

7. Legal Issues

  1. Whether company unable to pay its debts
    • Outcome: The court found that the defendant had raised triable issues with respect to the outstanding debt, and therefore the claimant could not rely on the statutory presumption that the defendant was unable to pay its debts.
    • Category: Substantive
    • Sub-Issues:
      • Disputed debt
      • Cross-claim
  2. Whether statutory demand served at registered office of company
    • Outcome: The court found that the claimant had not proved that the statutory demand and the cause papers had been left at the defendant’s registered office address as statutorily required.
    • Category: Procedural

8. Remedies Sought

  1. Winding up order

9. Cause of Actions

  • Winding up application based on failure to pay debt

10. Practice Areas

  • Commercial Litigation
  • Insolvency Law
  • Winding up

11. Industries

  • Commodities Trading

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co)N/AYes[2020] 1 SLR 1158SingaporeCited for the principle that a debtor-company need only raise triable issues to obtain a stay or dismissal of the winding up application.
Pacific Recreation Pte Ltd v S Y Technology Inc and another appealN/AYes[2008] 2 SLR(R) 491SingaporeCited for the principle that a debtor-company need only raise triable issues to obtain a stay or dismissal of the winding up application and that this standard of “triable issues” is no more than the standard for resisting a summary judgment application.
Founder Group (Hong Kong) Ltd (in liquidation) v Singapore JHC Co Pte LtdN/AYes[2023] 2 SLR 554SingaporeCited for the principle that where the debtor-company has raised a triable issue, the court will typically dismiss or exceptionally stay the winding up application.
Strategic Construction Pte Ltd v JH Projects Pte LtdN/AYes[2018] 4 SLR 1192SingaporeCited for the requirements to be satisfied where winding up proceedings are sought to be stayed on the basis of a cross-claim.
Jurong Shipyard Pte Ltd v BNP ParibasN/AYes[2008] 4 SLR(R) 33SingaporeCited for the principle that it is an abuse of process for a creditor to try to use the winding up process to recover a disputed debt.
Founder Group (Hong Kong) Ltd (in liquidation) v Singapore JHC Co Pte LtdHigh CourtYes[2023] SGHC 159SingaporeCited for the principle that the claimant has presented this winding up application without securing a binding adjudication that the defendant owes a debt to the claimant.
Re A Company (No. 0012209 of 1991)N/AYes[1992] 1 WLR 351N/ACited for the principle that if a claimant fails to establish that it is a creditor of the defendant, not only will the winding up application be dismissed with costs, it is also at risk that it will be ordered to pay those costs on the indemnity basis.
B2C2 Ltd v Quoine Pte LtdN/AYes[2018] 4 SLR 1SingaporeCited for the principle that there must be some cogent evidence supporting the defendant’s position to prove a triable issue.
Re Bentimi Pte Ltd; In the Matter of Part X of the Companies Act, Chapter 50 (1994 Revised Edition) v In the Matter of Bentimi Pte LtdHigh CourtYes[2003] SGHC 92SingaporeCited for the principle that the defendant’s liability (if any) ought, in the interests of justice, to be determined by way of a writ action where there will be discovery, material witnesses can be cross-examined and expert evidence adduced with respect to the alleged forgeries.

13. Applicable Rules

Rule Name
Rule 68(1) Insolvency, Restructuring and Dissolution (Corporate Insolvency and Restructuring) Rules 2020

14. Applicable Statutes

Statute NameJurisdiction
Section 125(1)(e) Insolvency, Restructuring and Dissolution Act 2018Singapore
Section 125(2)(a) Insolvency, Restructuring and Dissolution Act 2018Singapore
Section 124(1)(c) Insolvency, Restructuring and Dissolution Act 2018Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Statutory demand
  • Winding up
  • Registered office
  • Service of process
  • Disputed debt
  • Cross-claim
  • Insolvency
  • Cause Papers
  • Settlement Agreement
  • Payment Deferral Agreement
  • Pre-Payment Invoices

15.2 Keywords

  • Winding up
  • Insolvency
  • Statutory Demand
  • Service
  • Disputed Debt
  • Cross-claim
  • Singapore

17. Areas of Law

Area NameRelevance Score
Insolvency Law95
Winding Up95
Commercial Disputes60
Contractual terms40
Evidence Law30
Costs20

16. Subjects

  • Insolvency Law
  • Winding up
  • Service of Statutory Demand
  • Disputed Debt
  • Cross-claim