Professional Documents
Culture Documents
(2003) - SGCA - 30 Roberto's Case
(2003) - SGCA - 30 Roberto's Case
[2003] SGCA 30
Companies — Receiver and manager — Scope of duties of receiver and manager owed
towards mortgagor company
Credit and Security — Remedies — Receivership — Amount of time lender must give
debtor before appointing receiver and manager
Credit and Security — Remedies — Receivership — Scope of lender’s duties to debtor
when appointing receiver and manager
Facts
Under a loan arrangement with the first respondent (“OCBC”), the first appellant
(“Roberto”) was granted credit facilities of up to $31m, on a term that the facilities
were repayable upon demand. Two forms of security were furnished. First,
Roberto mortgaged its property (“mortgaged property”) to OCBC. Second, the
second to fourth appellants, who were directors of Roberto, gave a joint and
several letter of guarantee to OCBC. Subsequently, Roberto granted a fixed and
floating charge over its remaining assets to OCBC.
On 3 April 2000, OCBC gave notice to the appellants to repay the total outstanding
sum within 14 days from the date of receipt of that notice. On 17 April 2000,
Roberto’s auditors informed OCBC that a UK company (“Chelsfield”) was a
potential buyer for the mortgaged property and that it would revert with an offer
on 20 April 2000. OCBC did not receive any indication of an offer by 22 April 2000
and proceeded to appoint the second respondent, Mr Ho, as receiver and manager,
with a view to realise the assets secured under the debenture.
Subsequently, Chelsfield made an offer to purchase the mortgaged property. The
second to fourth appellants failed to get OCBC to revoke Mr Ho’s appointment.
Several other proposals were also made by the appellants to induce OCBC to
revoke the appointment without success. The deals with potential buyers
eventually fell through and the mortgaged property remained unsold.
The appellants alleged that OCBC and Mr Ho had breached their duties as lender
and as receiver and manager respectively. The appellants also alleged that OCBC
did not give Roberto sufficient time to repay the debt before appointing a receiver
and manager and the appointment was therefore invalid.
218 SINGAPORE LAW REPORTS [2003] 3 SLR
Case(s) referred to
ANZ Banking Group (NZ) Ltd v Gibson [1981] 2 NZLR 513 (refd)
B Johnson & Co (Builders) Ltd, In re [1955] Ch 634 (refd)
Bank of Baroda v Panessar [1987] 2 WLR 208 (folld)
Bond v Hong Kong Bank of Australia Ltd (1991) 25 NSWLR 286 (refd)
Bunbury Foods Pty Ltd v National Bank of Australasia Ltd
(1984) 51 ALR 609 (refd)
Cripps (Pharmaceuticals) Ltd v Wickenden [1973] 1 WLR 944 (folld)
Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949 (refd)
Downsview Nominees Ltd v First City Corporation [1993] AC 295 (refd)
Lee Nyet Khiong v Lee Nyet Yun Janet [1997] 2 SLR 713 (folld)
Lloyds Bank plc v Jeffrey Lampert [1999] Lloyd’s Rep Bank 138 (refd)
Medforth v Blake [2000] Ch 86 (folld)
Mister Broadloom Corporation (1968) Ltd v Bank of Montreal
(1979) 25 OR (2d) 198 (not folld)
Palk v Mortgage Services Funding plc [1993] Ch 330 (refd)
Ronald Elwyn Lister Ltd v Dunlop Canada Ltd (HC)
(1978) 85 DLR (3d) 321 (not folld)
Ronald Elwyn Lister Ltd v Dunlop Canada Ltd (SC)
(1982) 135 DLR (3d) 1 (not folld)
Shamji v Johnson Matthey Bankers Ltd [1991] BCLC 36 (folld)
Roberto Building Material Pte Ltd v
[2003] 3 SLR Oversea-Chinese Bank Corp (No 2) 219
Sheppard & Cooper Ltd v TSB Bank plc [1996] BCC 653 (refd)
Toms v Wilson (1862) 4 B&S 442; (1862) 122 ER 524 (refd)
Waldron v Royal Bank of Canada [1991] 4 WWR 289 (refd)
Kenneth Tan SC, Foo Jien Huei (Kenneth Tan Partnership) for the appellants;
V K Rajah SC, Lee Eng Beng, Chio Yuen-Lyn and Lynette Koh (Rajah & Tann) for the
first respondent;
Michael Hwang SC, Edwin Tong and Loong Tse Chuan (Allen & Gledhill) for the
second respondent.
[Editorial note: The first instance decision by Lai Kew Chai J of this appeal is reported
at [2003] 2 SLR 237.]
Background
2 The first appellant, Roberto Building Material Pte Ltd (“Roberto”), was
a Singapore company previously engaged in the business of supplying
materials to the building industry. The second, third and fourth appellants
were the directors of Roberto and were also the guarantors of the debts owed
by Roberto to the first respondent, the Oversea-Chinese Banking Corporation
(“OCBC”), a local bank. The third and fourth appellants were the wife and
brother respectively of the second appellant. The second respondent, Mr Don
Ho, was the receiver and manager (hereinafter referred to as “the Receiver” or
“Mr Ho” as may be appropriate), appointed by OCBC pursuant to powers
under a deed of debenture.
3 Under a loan arrangement made with OCBC, Roberto was granted credit
facilities of up to $31m, in the form of overdraft, letters of credit and trust
receipts. It was a term of the arrangement that the facilities were repayable
upon demand. As agreed, two forms of security were furnished. First, Roberto
mortgaged its property at No 7 Tai Seng Drive to OCBC. Second, on
13 March 1996, the second to fourth appellants gave a joint and several letter
of guarantee to the bank.
220 SINGAPORE LAW REPORTS [2003] 3 SLR
4 The borrowing by Roberto escalated so much that by May 1998, the total
facilities overdrawn reached $33.1m, exceeding the agreed limit. At the bank’s
request, Roberto brought the amount owing down to the agreed level. Later,
still being concerned, OCBC wanted Roberto to reduce the outstanding
further to $28m, which Roberto agreed.
5 There were discussions between the parties to restructure the loan. In
December 1998, Price Waterhouse (“PW”) was appointed as Roberto’s
financial consultants. In their initial report made in March 1999, PW
remarked that the problem with the company was that there was an excessive
level of stocks and a lack of proper cash flow management. Another problem
was that it had used short term borrowing to fund long term assets, which was
not the appropriate thing to do. In its final report, PW recommended that a
fixed and floating charge over its remaining assets be granted in favour of
OCBC and that some measures be taken to address the ills of the company.
Accordingly, a fixed and floating charge was duly executed on 5 May 1999.
6 However, OCBC was only prepared to restructure the debts if the
measures recommended by PW to reduce the level of stocks and bad or
doubtful debts were carried out. OCBC duly informed Roberto that unless
stocks were reduced, the bank would not be able to continue to support the
company. But, as it turned out, not only did Roberto not reduce the stock
level, it increased stocks by new purchases, some even as late as on
29 June 1999. Moreover, while arithmetically the debts owing had come down,
the decrease was due to write-offs rather than actual collections. Thus, on
1 July 1999, OCBC suspended the credit line.
7 Thereafter, Roberto asked for a six-month period to obtain refinancing.
OCBC was, however, only prepared to give it up until end September 1999.
When this deadline was not met, it was eventually extended to
31 December 1999. Roberto still did not manage to obtain refinancing.
8 In the meantime in August 1999, Roberto issued its audited financial
statement for the year ended 31 March 1998 which showed that its current
liabilities exceeded its current assets by $13.2m. The company was already in
pretty bad shape. There were serious doubts that Roberto would be able to
continue as a going concern.
9 In early 2000, Roberto owed Jurong Town Corporation the sum of
$366,766.63 as arrears in rental in respect of the mortgaged property. OCBC,
to protect its interest, paid up the outstanding rent due to the landlord, Jurong
Town Corporation. There was also outstanding property tax due to the Inland
Revenue Authority of Singapore in the sum of $884,102.91 and Roberto was
warned that if $664,862.91 was not received by 21 January 2000, action would
be taken to sell the mortgaged property.
Roberto Building Material Pte Ltd v
[2003] 3 SLR Oversea-Chinese Bank Corp (No 2) 221
29 Here we would like to cite the following instructive passage of Sir Richard
Scott VC in the case of Medforth v Blake [2000] Ch 86 at 103:
I do not think that the concept of good faith should be diluted by treating
it as capable of being breached by conduct that is not dishonest or
otherwise tainted by bad faith. It is sometimes said that recklessness is
equivalent to intent. Shutting one’s eyes deliberately to the consequences
of what one is doing may make it impossible to deny an intention to
bring about those consequences. Thereapart, however, the concepts of
negligence on the one hand and fraud or bad faith on the other ought, in
my view, to be kept strictly apart. … In my judgment, the breach of a duty
of good faith should, in this area as in all others, require some dishonesty
or improper motive, some element of bad faith, to be established.
30 Although the appointment of a receiver would depress the market, that
should, however, have been a consequence within the contemplation of the
parties when they entered into a deed of debenture providing for the
appointment of a receiver. Having lost faith in the management of Roberto,
OCBC acted reasonably in preferring an independent person to conduct the
prospective sale. In any event, the evidence showed that Chelsfield’s eventual
decision not to proceed with the purchase of the mortgaged property had
nothing to do with the appointment of the Receiver. Chelsfield decided to buy
a neighbouring property instead because it was newer and more suitable for
their business. More will be said later about Mr Ho’s effort(s) in this regard.
31 Accordingly, we held that there were no merits in the complaints under
this head.
see Cripps (Pharmaceuticals) Ltd v Wickenden [1973] 1 WLR 944 per Goff J at
955. Under this test, a debtor was only permitted to have such time as was
necessary to enable him to implement the mechanics of payment. He was not
entitled to any time to raise the funds, either from other banks or from other
sources. A couple of later first instance cases in England also adopted this test:
see The Law of Receivers and Administrators of Companies by Lightman & Moss
(3rd Ed, 2000) at p 106.
35 The appellants urged this court not to adopt the approach taken in the
English first instance cases but to follow the Canadian approach which held
that the debtor should be given a reasonable time to meet the demand. In
Ronald Elwyn Lister Ltd v Dunlop Canada Ltd (HC)(1978) 85 DLR (3d) 321,
Rutherford J rejected the test propounded by Goff J in Cripps and held that a
reasonable time must be given to the debtor to meet the demand. The case
eventually came before the Canadian Supreme Court (see Ronald Elwyn Lister
Ltd v Dunlop Canada Ltd (1982) 135 DLR (3d) 1) which affirmed the principle
that reasonable time should be given to the debtor to pay up. While the
Canadian Supreme Court did not attempt to define what was a “reasonable
time”, it approved the factors enumerated by Linden J in Mister Broadloom
Corporation (1968) Ltd v Bank of Montreal (1979) 25 OR (2d) 198 at 208:
[I]n assessing what length of time is reasonable in a particular fact
situation various factors must be analyzed: (1) the amount of the loan;
(2) the risk to the creditor of losing his money or the security; (3) the
length of the relationship between the debtor and the creditor; (4) the
character and reputation of the debtor; (5) the potential ability to raise the
money required in a short period; (6) the circumstances surrounding the
demand for payment; and (7) any other relevant factors.
36 It is of interest to note that in the later English case of Bank of Baroda v
Panessar [1987] 2 WLR 208, Walton J, after an extensive review of the cases,
including the Canadian and Australian cases, declined to follow Ronald Elwyn
Lister. He said (at 218):
[I]t appears to me that a time limited to the implementation of the
mechanics of payment, a short but adequate period, is to be preferred to
the test of a “reasonable time depending on all the circumstances of the
case,” as this would appear to be wholly imprecise, and the danger of
underestimating the period from the creditor’s point of view would be
considerable. Moreover, it would appear to be wholly unfair to the creditor
that the period should depend on all the circumstances of the case, since
he may very well not know, and have no means of knowing, all such
circumstances. If this test does prove to be the one ultimately adopted, it
must surely depend on all such circumstances as are known to the creditor.
37 Notwithstanding Walton J’s refusal to follow the Canadian approach, the
appellants pointed out that the “reasonable time” test had been applied in
Australia, New Zealand and Malaysia. The appellants further relied on the fact
228 SINGAPORE LAW REPORTS [2003] 3 SLR
that the English Court of Appeal in Sheppard & Cooper Ltd v TSB Bank plc
[1996] BCC 653 declined to express a view on this issue stating that “it would
be wholly inappropriate for this court to express a view on an issue which is
both complex and of general importance when it cannot, by the very necessity
of time limits, have had full opportunity for consideration”.
38 Counsel for the appellants submitted that the “mechanics of payment”
test ignored the practical and commercial reality that the purpose of
borrowing was, in the first place, to fund an opportunity which the debtor
could not otherwise fund out of cash holdings. All the more so in a situation
when there was demand for repayment of a substantial sum, like the present
case, reasonable time must be accorded to the debtor to convert resources
available to him into cash.
39 Counsel also referred to Waldron v Royal Bank of Canada [1991] 4 WWR
289 where the Court of Appeal of British Columbia observed that the duty to
give reasonable time to the debtor was (to paraphrase the court at 296) “not
merely a presumptive rule of construction of the security instrument, but
[was] founded on the twin concepts of public policy and unconscionability”.
40 We will now turn to consider the Australian High Court case of Bunbury
Foods Pty Ltd v National Bank of Australasia Ltd (1984) 51 ALR 609. The main
issue there was whether a demand made was invalid because it did not specify
the amount payable by the debtor. The court ruled it was not invalid. It then
proceeded to consider the question of whether sufficient time was given to the
debtor to make payment. The court apparently applied the “reasonable time”
test. The pertinent passage, in an unanimous judgment, was the following
(at 618 to 619):
It will be noticed that the proposition advanced by Cleasby B was
expressed to relate to the case where the demand was to pay the debt
instanter, no time being allowed to the debtor to comply before the
security was enforced against him. The proposition is designed to afford
some protection to a debtor against the oppressive operation of a provision
entitling a creditor to enforce a security on the debtor’s failure to make
payment immediately once demand is made for a debt expressed to be
payable on demand. However, it is now a well established principle of law
that a debtor required to pay a debt payable on demand must be allowed
a reasonable time to meet the demand. Even in a case where a deed
provided that the debt was payable “immediately upon demand thereof in
writing” it was held that the provision must be given a reasonable
construction so that the debtor had a reasonable time to get the money
from some convenient place (Toms v Wilson (1862) 4 B&S 442 at 453–5;
122 ER 524 at 529). This does not mean that the notice calling up the debt
is invalid unless it requires payment “within a reasonable time”. It means
Roberto Building Material Pte Ltd v
[2003] 3 SLR Oversea-Chinese Bank Corp (No 2) 229
45 The argument was made that unless “reasonable time” in the wider sense
was given, there would be no protection for the borrower who would be at the
mercy of the lender. This was hardly correct. It was not a power which could
be invoked at the whim and fancy of the lender. The cause for the invocation
of the enforcement rights of the lender would always be contingent on the
commission of a default which the parties had agreed to and as defined in the
debenture. The vast majority of the events of default as defined in the present
debenture would arise from an act or omission of the debtor.
46 In the light of our views above, we rejected the allegation that insufficient
notice was given to Roberto to pay up the outstanding debt. The appointment
of Mr Ho was in no way premature and was valid.
47 However, notwithstanding the foregoing, even if we were to apply the
wider sense of “reasonable time”, we were of the opinion that in all the
circumstances of the present case, such a time had, in fact, been accorded.
Besides the 14 days specified in the letter of demand, ample warning was given
by OCBC to Roberto that, unless corrective steps were taken, the loan would
be recalled. Furthermore, OCBC did not act immediately upon the expiry of
14 days. It acted only after some 18 days. It must be noted that the Canadian
cases involved notices of very much shorter duration. In Lloyds Bank plc v
Jeffrey Lampert [1999] Lloyd’s Rep Bank 138, while the English Court of
Appeal on the facts did not think it was necessary to determine which was the
correct test to adopt, Kennedy LJ, in commenting on the Canadian cases, said
at 142:
[T]he liberality of the Commonwealth approach must not be overstated.
In Whonnock Industries v National Bank (1987) 42 DLR (4th) 1 the British
Columbia Court of Appeal reviewed the authorities, and concluded that
where the amount owing is very large Canadian law now requires that
lenders should give “at least a few days” in which to meet the demand.
Reasonable notice, it was said, may range from a few days to no time at all.
In that case seven days had been allowed by the lender, and the judge at
first instance held that to be insufficient. On appeal his decision was
reversed, the court saying at p 11:
The Canadian law demonstrated in the decisions does not
contemplate more than a few days and cannot encompass anything
approaching 30 days. In the decisions noted nothing approaching the
seven days permitted here has been classed as unreasonable. The
cases in which the requirement for reasonable notice evolved deals
with notices of an hour or less. None of them holds that a notice of
more than one day was inadequate and none refers to the need for a
notice of more than a few days.
48 Viewing all the circumstances of the present case, it could not be said that
OCBC had acted abruptly or did not give Roberto sufficient time to take
corrective measures or make payment.
Roberto Building Material Pte Ltd v
[2003] 3 SLR Oversea-Chinese Bank Corp (No 2) 231
56 We would hasten to add that due diligence does not oblige the receiver
to continue to carry on a business of the mortgagor or debtor, but if the
receiver should choose to carry on the business, then he must exercise due care
to run it properly and profitably.
57 Here, Mr Ho was seeking to sell the mortgaged property. He was not
seeking to run any business of Roberto. But eventually he did not manage to
sell the property. So there could be no question of him having sold the
property at an undervalue.
58 In any case, the facts did not demonstrate that the sale to Chelsfield fell
through because of the fault or neglect, if any, of Mr Ho. It was clear that the
meeting of 16 June 2000 did not conclude successfully because of the price. All
other matters were resolved. Chelsfield stuck to its offer of $31m, a forced sale
value, while Mr Ho was trying to persuade Chelsfield to keep to their original
offer of $36.5m. The meeting ended with both Mr Ho and Chelsfield’s Chief
Executive Officer agreeing to conduct separate valuations of the property to
determine a fair price. On 19 June 2000 Chelsfield notified Mr Ho that they
would maintain their offer at $31m. The fact of the matter was that the second
appellant, Mr Tan, had objected to a sale at $31m and so Mr Ho was trying to
get something better.
59 Soon after the meeting of 16 June 2000, there was another potential
buyer, Bandury, who offered $33m. This being a higher offer than Chelsfield,
it was understandable that Mr Ho concentrated more on this. Things were
moving quite nicely. In late July 2000, Bandury wanted the sale to be a
mortgagee sale. Thereafter, Bandury dealt directly with OCBC and the two
parties negotiated on the contract of sale. Mr Ho was no longer involved. On
or about 5 September 2000, Mr Ho was informed that Bandury had decided
not to proceed with the purchase.
60 It seemed to us clear that much of the contentions of the appellants were
based on hindsight wisdom, eg, why did Mr Ho not sell the property to
Chelsfield at $31m? Why did Mr Ho not put Chelsfield and Bandury in
competition with each other? The question of putting the two potential buyers
in competition was never put to Mr Ho in cross-examination. Further, such
a strategy could backfire. At no time did Mr Tan insist that Mr Ho sell the
property to Chelsfield at $31m. In fact, he opposed it. If Mr Tan had felt so
strongly about selling at $31m, why was there not a single written
communication? It seemed to us that this was a typical case of fault-finding
after the event. It was really an ex post facto rationalisation to say that “all
parties were aware that the property market then was a fast declining one”.
Then, why did Mr Tan object to the sale at $31m in the first place?
61 Accordingly, we also held that this head of complaint had no merit.
234 SINGAPORE LAW REPORTS [2003] 3 SLR
The following comment from Lightman and Moss on The Law of Receivers and
Administrators of Companies by Lightman and Moss (3rd Ed, 2000) at p 155
is also illuminating:
“Likewise the duty may be broken if the receiver or mortgagee selects an
inappropriate method of sale by private treaty rather than some form of
public auction or following a public tender process.”
This again suggests that public auction is preferable.
66 In effecting the sale, Mr Ho took care to appoint two different
professional firms, one to value the stocks and the other to conduct the
auction. There was also evidence showing that most of the stocks were, in fact,
sold by the second or third appellants by private treaty. For the remaining
stocks, Mr Ho consulted Mr Robert Chan from M/s Jones Lang La Salle as to
the best method for their disposal. Having considered, inter alia, the quantity
and quality of the stocks and the market condition, Mr Chan recommended
sale by auction. Four auctions, which stretched over a period of 15 months,
from December 2000 to March 2002, and which were duly advertised, were
carried out. Reserve prices were set for the first two auctions. However, no
reserve price was set for the last two on the advice of M/s Jones Lang La Salle
and the valuers (Victor Morris). Mr Ho and Mr Chan also made concurrent
attempts to sell the remaining stocks by private treaty.
67 It was true that in one of the advertisements placed by M/s Jones Lang La
Salle on 4 December 2000, it was erroneously stated that Roberto was in
liquidation rather than in receivership. But in the next advertisement, the
error was put right; it did not mention anything about liquidation or
receivership. In any case, the erroneous advertisement was made in relation
to the first auction where reserve prices were set. All the stocks sold at that
auction were above the reserve prices. The error was of no consequence.
68 In our judgment, Mr Ho had taken all reasonable steps to effect the sale
of the stocks and had obtained the best price possible. He had also, following
expert advice, exposed the stocks to as wide a market as possible.
75 However, the evidence of Mr Ho was that he did not know of the alleged
contracts with Top Treasures until copies of the same were exhibited in
Mr Tan’s affidavit of 9 January 2002 filed in relation to Mr Ho’s application
for security for costs. He denied that Mr Tan handed to him the two contracts
with Top Treasures. While admitting receiving the LC on 2 May 2000, he did
not know it related to the alleged two contracts. The finding of the trial judge
at [29] was:
The two contracts were not disclosed by Mr Tan and Mr Don Ho did not
know anything about them at the material time. I am of the view that
Mr Tan must bear responsibility if the contracts were valid and
enforceable.
76 There would be no basis for this court to say that this finding was wrong,
far less clearly wrong, which is the test upon which a finding of fact of the trial
court could be upset. This would suffice to dispose of this complaint.
77 In any case, to draw on the LC, certain documents had to be produced:
signed invoices, delivery order (“DO”) and certificate of Italian origin issued
by the manufacturers. None of these was in the possession of Mr Ho. It was
also necessary as a pre-condition of drawing upon the LC that the goods be
delivered to a warehouse designated by the applicant of the LC. In fact, Mr Ho
wrote to Telesonic to obtain the particulars but received no response. Even
Mr Tan did not know to which warehouse the goods should be delivered.
Therefore, no goods of Roberto were delivered to any address. Furthermore,
the LC required that the DO be countersigned by two authorised signatories
of the applicant, and again no one knew who the two authorised signatories
were. Mr Ho was chasing Mr Tan on these documents without success. Here
the comments of the trial judge at [29] were germane:
As for the letter of credit, the credit would only be available if the company
had delivered the tiles to the warehouse nominated by the accountee of the
letter of credit. No such delivery by the company had been effected for the
simple reason that the alleged buyers did not nominate the warehouse to
which delivery of the tiles could be made. As this pre-condition was not
satisfied, there was no question of Mr Don Ho having failed to negotiate
the letter of credit. Nor could Mr Don Ho be criticised for not taking any
legal action. Mr Tan’s reliability as an ally in any such litigation was in
doubt and it was reasonable to have entertained such doubts. To say the
least, Mr Tan was in a state of denial so far as the parlous financial affairs
of the company were concerned.
There was no way in which Mr Ho could have carried out the two contracts
and converted the LC into cash.
238 SINGAPORE LAW REPORTS [2003] 3 SLR
Judgment
78 In the premises, we did not think that the complaints of the appellants
against OCBC and Mr Ho had any merits in law. We thus affirmed the
decision of the court below. We also ordered that the appellants bear the costs
of the respondents. The security for costs, together with any accrued interest,
was ordered to be released to the respondents to account of their costs.
Appeal dismissed.