Singapore legislation

Section 394

of Insolvency, Restructuring and Dissolution Act 2018

Section 394

Discharge by Court

(1)

The Official Assignee, the bankrupt or any other person having an interest in the matter may, at any time after the making of a bankruptcy order, apply to the Court for an order of discharge.

(2)

Every such application must be served on each creditor who has filed a proof of debt and on the Official Assignee if the Official Assignee is not the applicant, and the Court must hear the Official Assignee and any creditor before making an order of discharge.

(3)

Subject to subsection (4), on an application under this section, the Court may —

(a)

refuse to discharge the bankrupt from bankruptcy;

(b)

make an order discharging the bankrupt absolutely; or

(c)

make an order discharging the bankrupt subject to such conditions as the Court thinks fit to impose, including conditions with respect to —

(i)

any income which may be subsequently due to the bankrupt; or

(ii)

any property devolving upon the bankrupt, or acquired by the bankrupt, after the bankrupt’s discharge,as may be specified in the order.

(4)

Where the bankrupt has committed an offence under Parts 13 to 21 of this Act or under section 421, 422, 423 or 424 of the Penal Code 1871 or upon proof of any of the facts mentioned in subsection (5), the Court must —

(a)

refuse to discharge the bankrupt from bankruptcy;

(b)

make an order discharging the bankrupt subject to —

(i)

one or more of the following conditions as may be specified in the order:

(A)

the bankrupt paying a dividend to the bankrupt’s creditors of not less than 25%;

(B)

the payment of any income which may be subsequently due to the bankrupt, or with respect to property devolving upon or acquired by the bankrupt, after the bankrupt’s discharge; and

(ii)

such other conditions as the Court thinks fit to impose; or

(c)

if the Court is satisfied that the bankrupt is unable to fulfil any condition specified in paragraph (b) and if the Court thinks fit, make an order discharging the bankrupt subject to such conditions as the Court thinks fit to impose.

(5)

The facts mentioned in subsection (4) are the following:

(a)

that the bankrupt has omitted to keep such books of accounts as would sufficiently disclose his or her business transactions and financial position within the 3 years immediately preceding his or her bankruptcy, or within such shorter period immediately preceding that event as the Court may consider reasonable in the circumstances;

(b)

that the bankrupt has continued to trade after knowing or having reason to believe himself or herself to be insolvent;

(c)

that the bankrupt has contracted any debt provable in the bankruptcy without having at the time of contracting it any reasonable ground of expectation (which is for the bankrupt to prove) of being able to pay it;

(d)

that the bankrupt has brought on or contributed to his or her bankruptcy by rash speculations or extravagance in living, or by recklessness, or want of reasonable care and attention to his or her business and affairs;

(e)

that the bankrupt has delayed or put any of his or her creditors to unnecessary expense by a frivolous or vexatious defence to any action or other legal proceedings properly brought or instituted against him or her;

(f)

that the bankrupt has, within 3 months immediately before the date of the bankruptcy order, when unable to pay his or her debts as they became due, given an undue preference to any of his or her creditors;

(g)

that the bankrupt has, in Singapore or elsewhere on any previous occasion, been adjudged bankrupt or made a composition or an arrangement with his or her creditors;

(h)

that the bankrupt has been guilty of any fraud or fraudulent breach of trust;

(i)

that the bankrupt has, within 3 months immediately before the date of the bankruptcy order, sent goods out of Singapore under circumstances which afford reasonable grounds for believing that the transaction was not a bona fide commercial transaction;

(j)

that the bankrupt’s assets are not of a value equal to 20% of the amount of the bankrupt’s unsecured liabilities, unless the bankrupt satisfies the Court that the fact that the assets are not of a value equal to 20% of the bankrupt’s unsecured liabilities has arisen from circumstances for or in respect of which the bankrupt cannot be blamed;

(k)

that the bankrupt has entered into a transaction with any person at an undervalue within the meaning of section 361;

(l)

that the bankrupt has given an unfair preference to any person within the meaning of section 362.

(6)

The Court may, at any time before an order of discharge takes effect, rescind or vary the order.