Hyflux Ltd v SM Investments Pte Ltd [2019] SGHC 236

Introduction

These grounds deal with two summonses heard together: one by the plaintiff to strike out the defendant’s counterclaim under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”); the other, the defendant’s application for determination of a question of law or construction under O 14 r 12 of the ROC.

Background

These applications stem out of an agreement between the parties relating to an investment by the defendant in the plaintiff (“the Restructuring Agreement”). The plaintiff was at the material times, and at the time of this judgment, in the midst of a restructuring effort. The plaintiff was covered by a moratorium under s 211B of the Companies Act (Cap 50, 2006 Rev Ed) (“CA”), which has been extended by this Court several times since 2018. The moratorium was imposed to allow the plaintiff to eventually propose a scheme of arrangement to its creditors.

In the course of 2018, the plaintiff and defendant entered into negotiations, which led to the conclusion of the Restructuring Agreement. Under the Restructuring Agreement, the defendant would invest in the plaintiff by, inter alia¸ subscribing for shares in the plaintiff. Various conditions precedent were specified in the Restructuring Agreement. One of these, cl 5.1(e)(i), stipulated that the consent of the Public Utilities Board (“PUB”) for the change in control of Tuaspring Pte Ltd (“Tuaspring”), a subsidiary of the plaintiff which ran a desalination plant, was to be obtained.

On 25 March 2019, the PUB informed Tuaspring by letter that it consented to the change in control of Tuaspring, but subject to the following provisos:

(a) the PUB had, by 26 April 2019, exercised its right to terminate the water purchase agreement (“WPA”) with Tuaspring and elected to purchase the desalination plant and other infrastructure; and

(b) ownership of the desalination plant and other infrastructure had vested in the PUB in accordance with the WPA.

Whether this consent by the PUB fulfilled the requirements of cl 5.1(e)(i) of the Restructuring Agreement was contested by the parties. The defendant asserted through correspondence that it had the right to terminate the Restructuring Agreement, because of what it claimed was non-fulfilment of the condition precedents, as well as developments relating to other desalination plants.

The plaintiff claims that the defendant committed a repudiatory breach of the Restructuring Agreement, which the defendant denies. The plaintiff seeks, inter alia, the release to it of the deposit of S$38,900,000 which was placed in escrow pursuant to cl 3.1(a) of the Restructuring Agreement (“the escrow sum”). The defendant in its counterclaim seeks the release to it of the escrow sum.

Summons No 2747 of 2019: application to strike out

The first application is by the plaintiff, seeking to strike out the defendant’s counterclaim under O 18 r 19 of the ROC as it would be in breach of the moratorium covering the plaintiff. The plaintiff’s primary argument is that the defendant failed to obtain leave of court to commence or continue its counterclaim against the plaintiff in breach of the moratorium. The plaintiff relies on all four grounds under O 18 r 19(1), ie, that the counterclaim discloses no reasonable cause of action; is scandalous, frivolous or vexatious; that it may prejudice, embarrass or delay the fair trial of the action; or would amount to an abuse of process.

The defendant contends that it is able to proceed without leave of court as its counterclaim does not fall within the moratorium covering the plaintiff. The requirements under O 18 r 19 of the ROC for striking out its counterclaim would thus not be met. In any event, the defendant applied for leave to pursue its counterclaim at the oral hearing on 20 August 2019.

The decision

The defendant is entitled to assert its counterclaim without leave in so far as it relates to its entitlement to the escrow sum. It cannot, however, pursue the claim for damages and other reliefs without leave, as these go beyond a purely defensive stance. In any event, leave should be granted for the counterclaim and the other reliefs to be pursued by the defendants, save that no execution or enforcement of reliefs obtained may be made without leave of court.

Analysis

The plaintiff’s application would fall away if the counterclaim does not require leave, or if leave is actually granted, as there would be no violation of the moratorium in that situation. The decision thus turned on the application of the law in respect of counterclaims while a moratorium or stay is in force, and on the discretion of the court to grant leave.

The Law

Under s 211B of the CA, an automatic moratorium is triggered when an application is made. Prior to the expiry of the automatic moratorium period, the applicant may apply for an extension, the granting of which is at the discretion of the court and grounded in the provisions of s 211B of the CA:

It is clear from the statutory provisions that the court’s discretion is wide enough to allow for the imposition of various conditions, and carve outs may be allowed for certain claims by creditors.

The courts have allowed claims by creditors to proceed in some situations despite the existence of a moratorium. In some instances, the claims are allowed to proceed in so far as court proceedings are permitted to be commenced or continued, with stays being imposed on any execution. The primary consideration is to strike a balance between allowing the restructuring company space and time to pursue its reorganisation without the added distraction of fending off claims by creditors, and on the other hand, avoiding unnecessary delays in the satisfaction of creditor claims.

The plaintiff’s arguments

The plaintiff argues that the moratorium framework under s 211B of the CA is absolute and requires that leave be obtained even for counterclaims. The plaintiff relies on the absence of any express qualifications in favour of such counterclaims in either the statute or rules. Section 211B(12) of the CA specifies that a moratorium does not affect “the exercise of any legal right under any arrangement (including a set-off arrangement or a netting arrangement) that may be prescribed by regulations.” Regulation 3 of the Companies (Prescribed Arrangements) Regulations 2017 (S 246/2017) only specifies that legal rights under security interest arrangements are not affected.

The moratorium in the present case is wide in import, covering all proceedings. The objective of the moratorium regime, to treat all creditors evenly, should require leave for the counterclaim to be obtained. No Singapore authority supports the defendant’s assertions that the counterclaim falls outside the moratorium because it arises from the same dealings which are the basis of the claim made against it. The limited exceptions recognised in English cases such as Mortgage Debenture Ltd (in administration) v Chapman and others [2016] 1 WLR 3048 apply only to counterclaims in so far as they are defensive and are pleaded solely to raise a defence by way of set off. What the defendant seeks to do, it is said, goes beyond this. In any event, even if an exception were to be found, it should be narrowly construed, and should not extend to allowing damages and payment out of the funds from escrow. To allow these would permit the defendant to get ahead of the other creditors.

The defendant’s arguments

The defendant argues that the counterclaim could proceed without leave of court. The moratorium order does not give the plaintiff immunity to pursue claims on a contract without facing counterclaims for breach on that same contract.

The counterclaim as a defence

The rationale for allowing certain counterclaims to proceed even in the face of moratoria is clear. It would be inimical to allow a claim to proceed but not a counterclaim in respect of the same factual grounds: the defendant would be deprived of either a defence or a reduction of the claim based on the very same facts. Disregarding the counterclaim would tilt the balance too far in favour of the applicant company. This, I believe, is the basis of the various cases cited.

In Langley Constructions (Brixham) Ltd v Wells [1969] 1 WLR 503, the plaintiff company (which was in liquidation) brought proceedings against one of its directors for a sum of £5,000. The defendant attempted to bring a counterclaim against the plaintiff for £15,086 allegedly owing to him. Section 231 of the Companies Act 1948 (c 38) (UK), the applicable legislation at the time, provided:

The English Court of Appeal held that the defendant was entitled to proceed with its counterclaim without leave to the extent of the plaintiff’s claim (ie, for the sum of £5,000) (at 512). Leave would be required for the balance of the defendant’s counterclaim (at 513).

In CGU Insurance, the respondent company, which was undergoing liquidation, commenced proceedings against its insurers. The statutory provision in question was s 226(3) of the Companies Act (No 125 of 1965) (M’sia), which states:

The issue before the court was whether the insurers required leave to: (a) appeal a decision in favour of the company; and (b) bring an application for security for costs. The Federal Court of Malaysia held that they were not proceedings “commenced against the company” as they were defensive in nature.

In Thomas Evan Cook, the English Court of Appeal considered the scope of the statutory moratorium under paragraph 43(6) of schedule B1 to the Insolvency Act 1986 (c 45) (UK), which reads:

Citing Humber & Co v John Griffiths Cycle Co (1901) 85 LT 141, the English Court of Appeal held at [16]–[18] that the statutory moratorium did not apply to defensive steps:

What can be gleaned from these cases is that where a statutory moratorium is imposed in respect of the commencement of proceedings against a company, it would ordinarily not cover situations where the company itself commences proceedings and the defendant seeks, through a counterclaim, to reduce or extinguish any liability owed to the plaintiff.

While there does not appear to be any mention of an exception for counterclaims in any of the Parliamentary debates relating to the enactment of s 211B of the CA, I do not find that the intention was manifested to require leave to be obtained for counterclaims. Clearer language would have been expected to be used had that been the intention. The position at common law in relation to the interpretation of similar statutes would have been well understood: see [18]–[20] above. In the absence of express language to the contrary, the expectation is that Parliament intended to leave existing case law unaffected.

It follows that a counterclaim made in respect of a claim brought by a company undergoing s 211B restructuring would not require leave of court, but only in so far as it operates to extinguish or negate the claim, without affecting the position of the other creditors. Thus, any part of a counterclaim that goes beyond operating as a defence, such as a claim for damages or property, would require the leave of court.

Leave to proceed

In any event, oral application for leave was made at the hearing. The plaintiff, correctly it must be said, does not take issue with the granting of leave, subject to conditions.

I am of the view that leave should be granted.

The principles governing the granting of leave are clear. In re Atlantic Computer Systems Plc [1992] 2 WLR 367 has been the primary case cited in applications thus far. That case concerned the granting of leave in relation to the enforcement of security, but its considerations are applicable generally. In particular, it was noted that the granting of leave requires a balancing exercise between the secured creditor in that case, and those of the other creditors (at 395A–C). Here, the balancing exercise would need to consider the interests of the defendant as against those of the plaintiff’s other creditors.

In the present case, a number of factors would have to be weighed, including:

(a) the impact on the other creditors;

(b) the possible distraction from restructuring; and

(c) the prejudice or effect of either refusing or allowing the application on the parties.

Bearing these in mind, I find it appropriate to grant leave in the present case. Safeguards may be put in place to minimise the impact on the other creditors. Leave can be restricted to allowing the counterclaim and associated claims to be pursued only to determination of liability (if any), with enforcement or execution of any award or order being stayed.

As for the possible distraction of the company from focussing its resources on the restructuring, that would be a valid objection but for the fact that here part of the defendant’s counterclaim can proceed even without leave of court (see [23] above). Any additional burden, it seems, is unlikely to be that substantial.

Finally, allowing the counterclaim to proceed would not appear to have any significant adverse impact on the plaintiff, while disallowing it would expose the defendant to a claim that it could otherwise possibly extinguish or attenuate.

For the reasons above, leave is restricted to the same extent as the portion of the counterclaim which does not require leave. Other matters such as the defendant’s claim for damages may proceed to trial, but not execution. This will ensure that the defendant does not gain an advantage over the plaintiff’s other creditors through its counterclaim.

Summons No 3287 of 2019: Determination under O 14 r 12

The other summons before me was one for determination of a question of law or construction under O 14 r 12 of the ROC, relating to the fulfilment of a condition precedent specified in the restructuring agreement between the parties. The controversy between the parties is whether a letter issued by the PUB satisfied clause 5.1(e)(i) of the Restructuring Agreement. The defendant says that it did not. The plaintiff’s position is that it did, but that in any event the case should proceed to trial as it would not be determinative of the matter.

The Decision

I am not satisfied that this issue is suitable for determination under O 14 r 12 of the ROC. There are significant disputes of fact as to the interpretation of cl 5.1(e)(i) of the Restructuring Agreement that cannot be resolved without the benefit of a full trial. However, the plaintiff’s pleadings are deficient and ought to be amended. It also does not appear to be the case that a determination of the issue would fully resolve the dispute between the parties.

Principles

Order 14 r 12(1) of the ROC reads as follows:

There are thus two conjunctive requirements: first, the question of law or construction must be suitable for determination without a full trial; and second, such determination must fully determine the entire cause or matter or any issue or claim. This is illustrated in the following passage from Barang Barang Pte Ltd v Boey Ng San [2002] 1 SLR(R) 949 at [5]:

This passage was cited approvingly by the Court of Appeal in Olivine Capital Pte Ltd and another v Chia Chin Yan and another matter [2014] 2 SLR 1371 at [50] (“Olivine Capital”).

In the present case, the clause in question is only one of several grounds invoked by the plaintiff as the bases for its claim in repudiatory breach. That fact does not, however, disqualify the application. It is not necessary that the determination dispose of the entire matter as the language of O 14 r 12 of the ROC permits its use even if the issue in play is only part of the overall claim: see Payna Chettiar v Maimoon bte Ismail and others [1997] 1 SLR(R) 738 at [34]–[36].

The question posed

The question posed by the defendant as one of law or construction, asks the court to determine whether a letter dated 25 March 2019 from the PUB satisfied cl 5.1(e)(i) of the Restructuring Agreement between the plaintiff and the defendant.

Saving of time and cost

Clause 3.2 of the Restructuring Agreement governs the entitlement of the parties to the escrow sum:

The determination of the question in favour of the defendant would not put to rest all of the plaintiff’s claims. The plaintiff would still be entitled to the escrow sum if the Restructuring Agreement was validly terminated prior to 16 April 2019 following a breach of its terms by the defendant. So, a determination in favour of the defendant would not be conclusive of its entitlement to the escrow sum. Nonetheless, this would appear to be a substantial point, and there would be to my mind sufficient savings if this were resolved early. However, the question that remains is whether it is suitable for determination without trial.

Suitability for determination without trial

Clause 5.1(e)(i) of the Restructuring Agreement, which the defendant seeks a determination of, reads:

The defendant argues that the letter received from the PUB did not amount to consent under cl 5.1(e)(i) of the Restructuring Agreement. The defendant was thus entitled to terminate Restructuring Agreement. This interpretation is consistent with the commercial purpose of the Restructuring Agreement. The interpretation advocated for by the plaintiff is absurd as the PUB’s consent was conditional on the latter exercising its right to acquire the desalination plant and infrastructure owned by Tuaspring; this would defeat the defendant’s objective of acquiring control over the same assets. There are no factual disputes that would affect the construction of cl 5.1(e)(i) of the Restructuring Agreement, which can be determined based on affidavits. Clause 17.2 of the Restructuring Agreement stipulates that the agreement constitutes the entire agreement and understanding between the parties. The plaintiff has not pleaded or deposed in its affidavits with sufficient specificity any of the relevant extrinsic facts it intends to rely on to support its construction of the Restructuring Agreement as required by case law; this disentitles the plaintiff from raising the alleged context in the O 14 r 12 application. In any event, the evidence of pre-contractual negotiations is unlikely to relate to a clear and obvious context as required in Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029 (“Zurich Insurance”).

The plaintiff submits that the PUB letter satisfied the requirements of cl 5.1(e)(i) of the Restructuring Agreement based on the natural and ordinary meaning of the words used. In the alternative, the question was not suitable for determination under O 14 r 12 of the ROC. Both parties have put forward plausible interpretations of cl 5.1(e)(i) of the Restructuring Agreement. A full trial will allow the court to come to a proper determination of cl 5.1(e)(i) of the Restructuring Agreement as key witnesses can be cross-examined and all relevant evidence, including that of pre-contractual negotiations, adduced.

Evidence of the negotiations

The law

The law on contractual interpretation and construction in Singapore was laid down in a number of cases, including Zurich Insurance; Sembcorp Marine Ltd v PPL Holdings Pte Ltd and another and another appeal [2013] 4 SLR 193 (“Sembcorp”); Y.E.S F&B Group Pte Ltd v Soup Restaurant Pte Ltd (formerly known as Soup Restaurant (Causeway Point) Pte Ltd [2015] 5 SLR 1187 (“Y.E.S F&B”); and Xia Zhengyan v Geng Changqing [2015] 3 SLR 732 (“Xia Zhengyan”).

The use of pre-contractual negotiations was considered in Xia Zhengyan, where the Court of Appeal noted:

What can be taken from the Court of Appeal’s guidance is that the door has not been entirely closed against the use of evidence of pre-contractual negotiations in determining the context of words used in the Restructuring Agreement. The use of such evidence would be subject to the fulfilment of the Zurich Insurance criteria of relevance, availability to all contracting parties, and relation to a clear and obvious context.

The current position of the law was usefully surveyed by Professor Goh Yihan in Chapter 6 of The Interpretation of Contracts in Singapore (Sweet & Maxwell, 2018). In brief, he posits a greater hesitation about the relevance of pre-contractual negotiations in more recent cases as compared to Zurich Insurance. I am not certain that there is a difference in the degree of caution expressed by the courts. But in any event, the position remains undecided. One may perhaps think that a bright line rule against the admissibility of pre-contractual negotiations is entirely justified when the contract in question has been vetted and fussed over by squads, if not battalions, of lawyers; there may indeed be some merit in the English and traditional position against the relevance of pre-contractual negotiations. But that is not what I understand to be the law in Singapore.

The defendant’s arguments on the negotiations

The defendant contends that the Court of Appeal in Xia Zhengyan cautioned against the use of draft agreements, as these would not without more give a clear and obvious context (Xia Zhengyan at [65]). The defendant also relies on Zurich Insurance, in which it was emphasised that the focus should be on ascertaining the objective intention of parties (Zurich Insurance at [127]). Trawling through evidence of the pre-contractual negotiations should be avoided as the plaintiff is attempting to use them to favour its own subjective interpretation of the Restructuring Agreement.

The defendant invokes the commercial purpose of the agreement, and contends that the plaintiff’s advocated construction is absurd. An interpretation that is absurd is to be avoided: see Y.E.S F&B at [45], Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 at [21]. Clause 5.1(e)(i) of the Restructuring Agreement was aimed at avoiding a default under the WPA and a loss of the desalination plant and other infrastructure; the consent provided by PUB, being conditional on the termination of the WPA and the purchase by PUB of the desalination plant and other infrastructure, could not therefore satisfy clause 5.1(e)(i) without leading to an absurd result. A consent that is subject to significant or onerous conditions would not satisfy the requirements of the Restructuring Agreement: see Tay Theng Khoon and another v Lee Kim Tah (Pte) Ltd [1992] 1 SLR(R) 509 at [16]; Ideal City Development Sdn Bhd v Dynamic Mould Sdn Bhd [2003] 3 MLJ 152.

The plaintiff’s arguments on the negotiations

The plaintiff argues that evidence was required in the interpretation and construction of cl 5.1(e)(i) of the Restructuring Agreement. There was no common intention between the parties that the defendant’s commercial interests were to be protected. The Restructuring Agreement specifically allocates all post-completion commercial risks, including risks associated with the condition precedent in cl 5.1(e)(i), to the defendant. This is evidenced by the pre-contractual negotiations and various drafts of the Restructuring Agreement that were circulated. Any common intention is also further contradicted by the representations and warranties made by the plaintiff in respect of Tuaspring pursuant to para 1.2 of schedule 3 to the Restructuring Agreement.

As regards the defendant’s advocated construction of the Restructuring Agreement (see [49] above), the assertions made by its Chief Executive Officer Mr Arief Sidarto were disputed by the plaintiff and ought to be tested in cross-examination at trial.

The Determination of the Court

Here, I am satisfied that the evidence of pre-contractual negotiations could be material, and might play a role in the determination of the interpretation and construction of cl 5.1(e)(i) of the Restructuring Agreement. The evidence would also seem to be available to all parties, and would possibly point to a clear and obvious context: the Zurich Insurance criteria could be fulfilled here. At any rate, it is important to note that the evidence of pre-contractual negotiations may not ultimately be determinative or conclusive. What matters at this point, when the court is considering the invocation of O 14 r 12 of the ROC, is whether there are factual disputes that could determine the outcome of the suits. The pre-contractual negotiations may shed light on the proper interpretation of cl 5.1(e)(i) of the Restructuring Agreement, and therefore, should be left for trial rather than be determined one way or another right now.

The appropriate standard at this stage is guided by the requirement under O 14 r 12 (1) (a) of the ROC, that ‘such question is suitable for determination without a full trial of the action’. The door has been left open for evidence of pre-contractual negotiations to influence the interpretation and construction of cl 5.1(e)(i) of the Restructuring Agreement. That is enough to show that disposal of the question under O 14 r 12 of the ROC is not suitable.

While there may be some tentativeness about the consideration of pre-contractual negotiations, the entire agreement clause does not itself bar such evidence: cl 17.2 of the Restructuring Agreement prescribes the terms of the contract, but does not control how those terms are to be interpreted, which is the exercise for which the pre-contractual negotiations might be relevant.

As for the question of absurdity, what amounts to absurdity would have to be taken against the objective intention of the parties together: there would be no absurdity if it was indeed agreed that the risk of the loss of the desalination plant and infrastructure was to be left with the defendant alone. It is thus necessary to examine what the actual agreement was, which in these circumstances calls for a trial.

(1) Specificity of pleadings

The defendants correctly submitted that the pleadings should be specific. In Sembcorp, the Court of Appeal noted:

Here, what was in the pleadings seemed to fall shy of the above requirements. The plaintiff only pleaded repudiatory conduct by the defendants, and did not go into the negotiations between the parties, as well as the interpretation or construction that should be made of cl 5.1(e)(i). It could perhaps be read in that the plaintiff had a different interpretation of the requirements, but that is not enough to fulfil the Sembcorp requirements.

(2) The plain and ordinary meaning

Costs

Conclusion

For the above reasons, the counterclaim may be raised. Such a counterclaim does not need leave of the Court, in so far as it does not operate as more than a defence. Since the defendants have sought leave, and wish to pursue remedies going beyond a pure defence, leave is granted for them to assert and pursue the counterclaim, save that no execution of any judgment, including the release of funds or payment, is to occur without leave so long as the moratorium is in place.

As for the determination under O 14 r 12 of the ROC, I find that that it would not be appropriate to answer the question posed at this time, as there are factual issues to be determined which require a full trial. However, the plaintiff has not yet sufficiently pleaded its case specifically on the factual assertions and must amend its pleadings accordingly (see [56]–[58] above). Directions will be given for amendments to be made to sufficiently address the concerns raised in this judgment, failing which the defendants may revive its application under O 14 r 12 of the ROC. No order is made on the O 14 r 12 application at this time.