Re: ALSEN CHANCE HOLDINGS LIMITED (IN LIQUIDATION)

Facts

Four companies in liquidation in the British Virgin Islands, Alsen Chance Holdings Ltd, Brightstone Jewellery Ltd, Brazen Sky Ltd and Blackstone Asia Real Estate Partners Ltd, applied in Companies Winding Up Nos 453, 454, 456 and 457 of 2025 to be wound up in Singapore. In Re Blackstone Asia Real Estate Partners Ltd [2025] SGHC 191, the same judge, Aidan Xu J, had held that Art 23(9) of the Model Law on Cross-Border Insolvency barred their foreign representatives from bringing avoidance claims over transactions made before the Model Law took effect in Singapore. A Singapore winding up would let Singapore liquidators bring those claims under ss 238 and 239 of the Insolvency, Restructuring and Dissolution Act 2018 (IRDA). It was not disputed that this was the purpose of the applications.

The intended targets of those claims were Standard Chartered Bank (Singapore) Ltd (SCB), BSI Bank Ltd (BSI) and a BSI employee, Mr Hans Peter Brunner. They asked to take part in the winding-up hearings, and the companies objected. The court therefore decided, as a preliminary point, whether these non-parties had standing.

Issues

1. Whether the possibility of adverse costs orders in pending litigation made the non-parties contingent creditors of the companies
2. Whether a contractual indemnity given by Brazen Sky made BSI a contingent creditor with standing
3. Whether the non-parties fell within the exception in PricewaterhouseCoopers v Saad Investments Co Ltd

Holding

The court ruled that none of the non-parties had standing to participate in the winding-up applications and declined to grant the directions they sought.

Reasoning

Only the company, a creditor, a contributory, the Official Receiver or the proposed liquidator ordinarily has a right to be heard on a winding-up application. A contingent creditor is one to whom the company owes an existing obligation that may become payable on a future event. The court preferred the analysis in Lim Siew Soo v Sembawang Engineers and Constructors Pte Ltd and Glenister v Rowe to that in In re Nortel GmbH. On that analysis, starting litigation creates only a risk of liability for costs, and the liability arises only when the court actually orders costs. Nortel concerned proof of debt after a winding up, and applying it here would make every litigant a contingent creditor of its opponent, which could not be right. The costs later awarded to SCB and BSI on the appeal from the earlier decision did not change this.

Brazen Sky's indemnity was, in principle, a contingent liability. However, for standing to present or oppose a winding up, there must be a real prospect that the contingency will occur. Here it depended on Brazen Sky first succeeding against BSI in pending litigation and on BSI then being entitled to rely on the indemnity. That was too remote. In any case, the indemnity could at most offset BSI's liability, not leave Brazen Sky owing BSI a net sum.

Saad Investments allowed the sole direct targets of a winding up to be heard because of unusual features, mainly a clear lack of jurisdiction that would otherwise have gone unexamined. Being the target is not enough by itself. The non-parties' rights were not affected by any winding-up order, and they could defend the avoidance claims on the merits later. Following the reasoning in Reignwood International Investment (Group) Co Ltd v Opus Tiger 1 Pte Ltd and Shanghai Shipyard Co Ltd v Opus Tiger 1 Pte Ltd, the court held that the issues on a winding up, including whether the companies had a substantial connection with Singapore, did not need input from intended defendants. The court also held that the rules allowing an affected person to apply to set aside a winding-up order could not create standing.

From the judgment