Zhu Su v THREE ARROWS CAPITAL LTD & 2 Ors
8 cases cited
(6 SG, 2 foreign)
Catchwords
Practice Areas
Judges (2)
Counsel (13)
Advocatus Law LLP Firm WongPartnership LLP Firm Christopher Anand s/o Daniel Counsel Applicant Harjean Kaur Counsel Applicant Kwong Kai Sheng Counsel Respondent Leo Zhen Wei Lionel Counsel Respondent Lim Yi Zheng Counsel Applicant Liu Zhao Xiang Counsel Respondent Manoj Pillay Sandrasegara Counsel Respondent Muhammed Ismail Bin k.o. Noordin Counsel Respondent Saadhvika Jayanth Counsel Applicant T Abirami Counsel Respondent Yeo Yi Ling Eileen Counsel Applicant
Parties (5)
Three Arrows Capital Ltd Respondent Christopher Farmer (solely in his capacity as a duly appointed joint liquidator of Three Arrows Capital Ltd) Respondent Kyle Livingston Davies Applicant Russell Crumpler (solely in his capacity as a duly appointed joint liquidator of Three Arrows Capital Ltd) Respondent Zhu Su Applicant
Case Significance
Zhu Su v Three Arrows Capital Ltd and others and another matter [2024] SGCA 14 was decided by the Singapore Court of Appeal on 10 May 2024, with grounds of decision delivered by Kannan Ramesh JAD on behalf of a coram of Sundaresh Menon CJ and Kannan Ramesh JAD, following a hearing on 22 January 2024. The matter comprised Originating Applications Nos 37 and 38 of 2023, brought respectively by Zhu Su and Kyle Livingston Davies, which were applications for permission to appeal a decision by a Judge of the General Division of the High Court refusing to set aside certain orders made against the applicants, including an order under s 244 of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed). The central question was whether an order under s 244 of the IRDA, and a decision refusing to set aside that order, were interlocutory orders for the purpose of para 3(l) of the Fifth Schedule to the Supreme Court of Judicature Act 1969 (2020 Rev Ed). The respondents were Three Arrows Capital Ltd and its joint liquidators, Christopher Farmer and Russell Crumpler.
Summary
SUPREME COURT OF SINGAPORE
[10 May 2024]
Case summary
Zhu Su v Three Arrows Capital Ltd and others and another matter [2024] SGCA 14
Originating Applications Nos 37 and 38 of 2023
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Decision of the Court of Appeal (delivered by Justice Kannan Ramesh):
Outcome: The court dismissed the applications for permission to appeal against certain orders made against the applicants, including an order under s 244 of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) (the “IRDA”), on the basis that permission to appeal was not required.
Pertinent and significant points of the judgment
• The court disagreed with its previous decisions in Jumabhoy Asad v Aw Cheok Huat Mick and others [2003] 3 SLR(R) 99 (“Jumabhoy”) and PricewaterhouseCoopers LLP and others v Celestial Nutrifoods Ltd (in compulsory liquidation) [2015] 3 SLR 665 (“Celestial Nutrifoods”) which held that an order under s 285 of the Companies Act (Cap 50, 2006 Rev Ed) (the “Companies Act”) (the predecessor provision to s 244 of the IRDA) is an interlocutory, and not final, order: at [2] and [30]–[36].
• An order under s 244 of the IRDA is a final, and not interlocutory, order: at [2] and [30]–[36].
Background
1 The applicants in OA 37 and OA 38 were respectively Mr Zhu Su and Mr Kyle Livingston Davies (the “Applicants”), directors of Three Arrows Capital Pte Ltd (“TA-SG”), a Singapore entity. TA-SG owned 100% of the shares in the first respondent, Three Arrows Capital Ltd (“TA-BVI”), a British Virgin Islands (the “BVI”) entity. The liquidators of TA-BVI, Mr Christopher Farmer and Mr Russel Crumpler, were respectively the second and third respondents. The respondents shall collectively be referred to hereinafter as the “Respondents”.
2 On 30 November 2022, the Applicants were ordered by a Judge of the General Division of the High Court (the “Judge”) to each submit an affidavit detailing their dealings with TA-BVI as well as the dealings between TA-SG and TA-BVI (the “Disclosure Order”).
3 The Applicants failed to comply with the Disclosure Order. On 26 May 2023, the Respondents sought permission to apply for orders of committal against them. Permission was granted by the Judge on 30 June 2023 (the “Leave Orders”).
4 The Respondents thereafter filed applications for orders of committal against Mr Davis and Mr Zhu respectively. The applications were granted by the Judge on 25 September 2023 (the “Committal Orders”), and both the Applicants were each sentenced to four months’ imprisonment for contempt of court. Mr Zhu was arrested and committed to prison on 29 September 2023, while Mr Davies remained out of jurisdiction.
5 The Applicants did not appeal the Disclosure Order or the Committal Orders. Instead, well after the time for appeal had passed, on 1 November and 3 November 2023, each of the Applicants applied to set aside both orders as well as the Leave Orders (the “Setting Aside Applications”). The Setting Aside Applications were dismissed by the Judge on 27 November 2023.
6 The Applicants thereafter brought the present applications for permission to appeal against the dismissal of the Setting Aside Application (the “Applications”).
The Court of Appeal’s decision
7 An order under s 244 of the IRDA might be analogised to orders for pre-action reliefs, such as pre-action discovery and interrogatories; permission to appeal an order giving or refusing pre-action reliefs was not needed. Such an order was final as it would have disposed of everything in the proceeding: at [25]–[27].
8 Insofar as the Court of Appeal in Celestial Nutrifoods was of the view that an application under s 285 of the Companies Act might serve a wider purpose than applications for pre-action interrogatories, this did not reveal the consequences of an order under s 285 of the Companies Act on the rights of the parties. Further, while an application for an order under s 285 of the Companies Act was made in the course of inter alia winding-up proceedings, this was inconclusive of the nature of the order: at [28].
9 An order under s 244 of the IRDA finally determined the rights of the parties, namely whether the respondent might be compelled to submit an affidavit or produce relevant documents The rights were completely determined when a court grants or refuses the relevant order(s) under s 244. Upon the application being allowed or refused, that disposed of the matter as between the parties, leaving nothing further for the court to determine or deal with: at [30].
10 The Committal Orders were evidently final orders for which no permission to appeal was needed because they had the effect of finally determining the substantive rights of the Applicants. By the Committal Orders, the Applicants were each sentenced to prison for four months for contempt of court for breaching the Disclosure Order: at [32].
11 The dismissal of the Setting Aside Applications was a final order as it was dispositive of the issue of whether there were any grounds for setting aside the Disclosure Order and the Committal Orders: at [34].
12 The Leave Orders were interlocutory orders as they did not dispose of any substantive rights of the parties and ordinarily, permission would have been required to appeal them. However, as the Leave Orders had resulted in the Committal Orders being made, and the latter was appealable as of right, the question of permission to appeal the former was academic: at [35].
This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.
What was Zhu Su v Three Arrows Capital Ltd [2024] SGCA 14 about?
Decided by the Court of Appeal on 10 May 2024, [2024] SGCA 14 concerned applications by Zhu Su and Kyle Livingston Davies for permission to appeal a decision refusing to set aside orders against them, including an order under s 244 of the Insolvency, Restructuring and Dissolution Act 2018.
What was the central question in Zhu Su v Three Arrows Capital Ltd [2024] SGCA 14?
The central question was whether an order under s 244 of the IRDA, and a decision refusing to set it aside, were interlocutory orders for the purpose of para 3(l) of the Fifth Schedule to the Supreme Court of Judicature Act 1969 (2020 Rev Ed).
Statutes Cited
Insolvency, Restructuring and Dissolution Act
Cases on this Act →
Restructuring and Dissolution Act
Cases on this Act →
Cases Cited (8)
SLR (6)
[2003] 3 SLR(R) 99 [2006] 2 SLR(R) 525 [2013] 2 SLR 880 [2013] 3 SLR 354 [2015] 3 SLR 665 [2019] 1 SLR 131
UK (2)
[1891] 1 QB 734 [1903] 1 KB 547
Referenced in
Statutes interpreted in this judgment
Legal concepts & references
Judgment
Read the full judgment on the official Singapore Courts portal.
Read on eLitigationSource: eLitigation ([2024] SGCA 14)