Singapore legislation
Clause 365
Clause 365
Orders under sections 361 and 362
(1)
Without limiting sections 361(2) and 362(2), an order under either of those sections with respect to a transaction or preference entered into or given by an individual who is subsequently adjudged bankrupt may, subject to this section —
require any property transferred as part of the transaction, or in connection with the giving of the preference, to be vested in the Official Assignee;
require any property to be so vested if it represents in any person’s hands the application of the proceeds of sale of property so transferred or of money so transferred;
release or discharge (in whole or in part) any security given by the individual;
require any person to pay, in respect of benefits received by the person from the individual, such sums to the Official Assignee as the Court may direct;
provide for any surety or guarantor whose obligations to any person were released or discharged (in whole or in part) under the transaction or by the giving of the preference to be under such new or revived obligations to that person as the Court thinks appropriate;
provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for the security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction or by the giving of the unfair preference; and
provide for the extent to which any person whose property is vested by the order in the Official Assignee, or on whom obligations are imposed by the order, is to be able to prove in the bankruptcy for debts or other liabilities which arose from, or were released or discharged (in whole or in part) under or by, the transaction or the giving of the unfair preference.
(2)
An order under section 361 or 362 may affect the property of, or impose any obligation on, any person whether or not that person is the person with whom the individual in question entered into the transaction or (as the case may be) the person to whom the unfair preference was given.
(3)
An order under section 361 or 362 does not —
prejudice any interest in property which was acquired from a person other than that individual and was acquired in good faith and for value, or prejudice any interest deriving from such an interest; or
require a person who received a benefit from the transaction or unfair preference in good faith and for value to pay a sum to the Official Assignee, except where the person was a party to the transaction or the payment is to be in respect of an unfair preference given to that person at a time when that person was a creditor of that individual.
(4)
For the purposes of subsection (3)(a) and (b), a person (called in this section the relevant person) who has acquired an interest in property from a person other than the individual in question, or who has received a benefit from the transaction or unfair preference, is presumed (unless the contrary is shown) to have acquired the interest or received the benefit (as the case may be) otherwise than in good faith if, at the time of the acquisition or receipt —
the relevant person had notice of the relevant surrounding circumstances and of the relevant proceedings; or
the relevant person was an associate of, or was connected with —
the individual in question; or
the person with whom the individual in question entered into the transaction, or to whom the individual gave the unfair preference, as the case may be.
(5)
Any sums required to be paid to the Official Assignee in accordance with an order under section 361 or 362 are to be comprised in the bankrupt’s estate.
(6)
For the purposes of subsection (4)(a), the relevant surrounding circumstances are —
the fact that the individual in question entered into the transaction at an undervalue; or
the circumstances which amounted to the giving of the unfair preference by the individual in question.
(7)
For the purposes of subsection (4)(a), the relevant person has notice of the relevant proceedings if the relevant person has notice of —
the making of the bankruptcy application on which the individual in question is adjudged bankrupt; or
the fact that the individual in question has been adjudged bankrupt.
(8)
Despite section 364(1), for the purposes of subsection (4)(b)(ii), a company is regarded as an associate of another company if —
the same person controls both companies;
a person controls one company and either an associate of that person controls, or that person and the associate control, the other company; or
each company is controlled by a group of 2 or more persons, and the groups —
consist of the same persons; or
can be regarded as consisting of the same persons if (in one or more cases) a member of either group is replaced by an associate of that member.
(9)
For the purposes of subsection (4)(b), the relevant person is connected with a company if the relevant person —
is a director of the company; or
is an associate of —
the company; or
a director of the company.
(10)
In subsection (9), “director” has the meaning given by section 4(1) of the Companies Act.