nTan Corporate Advisory Pte Ltd v TT International L td [2018] SGCA 69

Introduction

This appeal concerns the assessment of the professional fees of the appellant, the independent financial advisor cum scheme manager of the respondent company. We wish to state at the outset that this is a case that is very much limited to its own facts. Nothing in this case or in these remarks sets out any principle governing the remuneration of insolvency practitioners in Singapore. This case concerns only the valuation of the appellant’s work in the particular circumstances that have been presented to us.

The respondent, TT International Limited, faced financial difficulties following the global financial crisis in 2008. It thus engaged the appellant, nTan Corporate Advisory Pte Ltd, as its independent financial advisor to help in its financial restructuring. The letters of engagement provided for the remuneration of the appellant, including in particular a value-added fee (“VAF”), which in broad terms was a percentage of the amount of the debt of the respondent that would be waived, written off or extinguished pursuant to the eventual terms of the scheme of arrangement that the respondent hoped to be placed under through the advice and assistance of the appellant. Three of the appellant’s personnel were subsequently appointed as scheme managers and the scheme was in due course approved by the court.

However, it later turned out that at the time the scheme was voted on and agreed to by the creditors, those creditors had not been made aware of the contractually-agreed remuneration of the appellant, including, in particular, the VAF. The creditors’ committee then sought relief from the court and this culminated in the decision of this court in The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd and another appeal [2012] 4 SLR 1182 (“the VAF Decision”). In that decision, this court held that there had been material non-disclosure of the contractually-agreed remuneration of the appellant to the creditors of the respondent company. The court considered the non-disclosure so critical that in its view, it would typically have required that the entire scheme be set aside. However, because the scheme had been implemented for more than two years at the time of the decision, the court concluded that it was “not practical to set it aside without causing more harm to the [respondent] and the creditors” (at [33]). It therefore ordered that the parties were to endeavour to agree on what would be the proper amount of professional fees to be awarded to the appellant for its efforts in reviving the respondent company, failing which the fees would be assessed by a High Court judge. It is helpful to set out the material part of the VAF Decision in full (at [34]–[35]):

Civil Appeal No 218 of 2017 is the appellant’s appeal against the Judge’s decision.

Our decision

At the outset, we reiterate that the VAF Decision is a self-contained decision and it simply does not arise for argument whether we, or any of the parties, think it may have been correctly or wrongly decided. This court in 2015 has held that the VAF Decision, whether right or wrong, is final and binding. In these circumstances, we cannot go behind what was said in the VAF Decision and it becomes purely a question of valuation in accordance with the principles set out in Re Econ Corp Ltd [2004] 2 SLR(R) 264 (“Re Econ”) that were summarised in the VAF Decision.

We also take this opportunity to observe that it is irrelevant today whether those principles are to be confined to assessing the remuneration in the case of a liquidation, as the appellant contended, nor whether that guidance correctly extends to scheme managers. Those are general questions which do not arise before us because this court in the VAF Decision has held that the principles set out in Re Econ will apply in this case.

In that context, the Judge noted as follows (at [32]):

The Judge observed that he had considered the VAF formula but then decided that it was neither fair nor reasonable to apply it to this case. It is not entirely clear to us why he thought it necessary to examine the VAF formula at all, because in our judgment, the effect of the VAF Decision was to exclude the terms of the contract between the parties, including the VAF formula, as relevant factors in assessing the appellant’s remuneration. In any event, as the Judge considered that it was ultimately irrelevant, the fact that he considered it did not affect his decision.

The rest of the Judge’s analysis was then taken with assessing the value that the appellant had contributed to the respondent company. The appellant’s arguments in this regard were advanced on various bases, all of which were rejected by the Judge. Having considered the matter, we see no basis for departing from the Judge’s broad analysis.

While we accept that the appellant has added some value to the respondent company, in the present circumstances, for the reasons we have outlined, the original contractual arrangement could not be relied on and there was, in the final analysis, simply no other acceptable means for assessing the particular value that could be specifically attributed to the appellant. We therefore dismiss the appeal despite Mr Peh’s careful submissions.

Conclusion

For these reasons, we dismiss the appeal.