In re oCap Management Pte Ltd (in Liquidation)

Facts

oCap Management Pte Ltd was wound up by the court on 15 March 2021. German prosecutors brought criminal proceedings concerning Wirecard AG and its group, in which the company is implicated; loans of €210m from Wirecard entities to the company were allegedly used to disguise the group's finances, and the German authorities seek confiscation of that amount. At Germany's request, the Attorney-General obtained a restraint order in Originating Application No 390 of 2023 under the Mutual Assistance in Criminal Matters Act 2000 (MACMA) over the company's moneys in two Citibank accounts. The court had earlier carved out past fees of the liquidators but refused to release estimated future fees for want of evidence that they were necessary.

In Summons No 3747 of 2025 the liquidators asked to vary the order again. They sought release of S$178,560.25 in fees already incurred (the Incurred Fees), including work on examining a former officer and preparing possible claims, and about S$2,997,500 in fees for pursuing two claims against third parties (the Future Fees): a dividends claim against former and alleged shadow or de facto directors, and a claim against Ontario Inc. Several litigation funders had declined to fund the claims; Athos agreed to fund only this application. The Incurred Fees were approved at a creditors' meeting. The Attorney-General took no position on the Incurred Fees but opposed the Future Fees.

Issues

1. Whether the Incurred Fees were properly incurred under paragraph 14(2)(b) of the Third Schedule to the MACMA.
2. Whether pursuing the anticipated claims was necessary so that the Future Fees should be released under paragraph 14(2)(b).
3. Whether refusing the Future Fees would inhibit the liquidators from exercising their functions under paragraph 14(2)(a).

Holding

Aidan Xu J allowed the application in part. The restraint order was varied to let the liquidators use S$178,560.25 from the accounts to pay the Incurred Fees, and the application for release of the Future Fees of S$2,997,500 was dismissed. Costs directions were to be given separately.

Reasoning

On the Incurred Fees, the judge held that creditor approval under the insolvency statute does not settle the matter; the court must itself be satisfied that the sum fairly reflects the value of the work. He was concerned that the liquidators had done work towards the claims without first seeking the court's authorisation, despite the restraint order, and warned that such expenses risk going unpaid. But the work was mainly preparatory, the sum was not excessive given the time, complexity and rates, and the Attorney-General did not object, so no reduction was made.

On the Future Fees under paragraph 14(2)(b), the judge treated necessity as the overarching test. Where a restraint order protects possible proceeds of crime, the insolvency process generally gives way, and the liquidators' dominant concern should be preserving assets for victims and creditors, avoiding risky recovery actions unless they carry little risk and clear upside. The evidence pointed the other way: around five funders declined the claims, Athos's terms were limited and onerous, and the Wirecard creditors holding over 97% of the debt refused further funding. The spend was almost 30% of remaining net assets, the liquidators' best-case net return was only about 3% of the unsecured debt, enforcement costs were not budgeted, and the defendants' means were not shown.

On paragraph 14(2)(a), the same necessity requirement shapes what functions are protected. Authorities describing claims as part of a liquidator's ordinary duties did not assist where virtually all assets were restrained; the provision focuses on distribution, not further recovery.

From the judgment