Kiri Industries Limited v Senda International Capital Limited and another

Kiri Industries Ltd, a minority shareholder in DyStar Global Holdings (Singapore) Pte Ltd, began oppression proceedings against the majority shareholder, Senda International Capital Ltd, on 26 June 2015. In its main judgment of 3 July 2018 the Singapore International Commercial Court (SICC) found oppression and ordered Senda to buy Kiri's shares at their value as at that date. Kiri's shares were later valued at US$603.8m, a figure fixed on 3 March 2023.

Senda did not complete the buy-out; according to Senda, it could not raise the funds. On Kiri's application, the SICC substituted an en bloc sale of both parties' shares in DyStar, conducted by court-appointed receivers without a reserve price. It ordered that Kiri receive US$603.8m from the net proceeds in priority, with Senda taking the balance. It declined to add anything to account for interest on the purchase price.

Senda appealed against the priority order in Civil Appeal No 5 of 2024, arguing it was unfair and went beyond the primary finding of oppression. Kiri appealed in Civil Appeal No 4 of 2024 against the refusal to account for interest, seeking an enhancement at commercial borrowing rates. DyStar took no position.

1. Whether the SICC erred in ordering that Kiri be paid US$603.8m from the en bloc sale proceeds in priority to Senda.
2. Whether the court has power to award post-judgment interest on the price fixed under a buy-out order in an oppression action.
3. Whether Kiri should receive a discretionary enhancement to reflect delay in realising the value of its shares, and at what rate.

Section 216(2) of the Companies Act 1967 lets the court make such order as it thinks fit to end or remedy oppression, with commercial fairness as the touchstone. The US$603.8m figure had been fixed by applying that fairness standard, and the buy-out order requiring Senda to pay it was not open to attack as unfair. When the buy-out was not performed and did not appear capable of performance, the SICC simply substituted a new remedy within its s 216(2) powers rather than revisiting its primary decision. The priority order preserved Kiri's entitlement as against Senda, and there was nothing unfair in holding Senda to the financial obligation already imposed on it.

On interest, a buy-out claim is not a claim for debt or damages under the Supreme Court of Judicature Act 1969 or s 12(1) of the Civil Law Act 1909, and Kiri did not argue the price was a judgment debt, so no power to award post-judgment interest arose. However, the fairness principle in s 216(2) allows the court to enhance the sum paid to an oppressed shareholder to reflect delay in realisation. Given the procedural history, Kiri was not precluded from seeking this. The court rejected the higher commercial borrowing rates in India or the United States because fairness ran both ways, the enhancement need not be fully compensatory, and external factors had affected the timetable. It therefore chose the lowest rate debated, 5.33%, running from six months after the valuation.

The Court of Appeal (Robert French IJ delivering the judgment, with Judith Prakash SJ and Bernard Rix IJ) dismissed Senda's appeal and allowed Kiri's appeal in part, granting a lower rate and later start date than Kiri sought. Kiri was granted a discretionary enhancement at 5.33% per annum on US$603.8m from 3 September 2023 until payment, also payable in priority out of the net sale proceeds. Senda was ordered to pay costs of S$90,000.00 and S$60,000.00 on the two appeals, plus disbursements.