[1997] SGHC 335

In the High Court of the Republic of Singapore

[1997] SGHC 335

Suit 1510/1994

Between

D & C Property Pte Ltd

… Plaintiff

And

Lew Guan Seng (a bankrupt)

… Defendant

grounds of decision

Insolvency Law — Administration of insolvent estates

This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.

D & C Property Pte Ltd v Lew Guan Seng (a bankrupt) and Others

[1997] SGHC 335

Suit 1510/1994
Christopher Lau JC
09 December 1997

1 CHRISTOPHER LAU JC

3 (b). if so, whether the gift, which was within two years of the adjudication of the bankruptcy of the first defendant, should be set aside and in that event;

4 (c). whether the moneys representing the sale proceeds of the Nassim property should be paid to the Official Assignee of the estate of the first defendant after deduction of a sum representing an earlier judgment debt obtained against the first defendant by the plaintiffs in this action.

6 Official Assignee of the Property of Senator Ibrahim bin Haji Yaakob (a bankrupt) v Siti Ramlah bte Bajau [1991] 2 MLJ 479 at p 482D-F, as authority for this proposition. That case concerned the Malaysian equivalent of s 52 of the repealed Act.

21 I accept the second defendant`s evidence that it was the first defendant`s intention to give her a half share in the Nassim property. I therefore find that it was the specific intention of both the first and second defendants when they purchased the property in their joint names that they should each have an equal half share in the legal and beneficial ownership of the Nassim property

The plaintiffs also argue that if the court finds that the second defendant`s interest in the Nassim property arose by way of a gift from the first defendant, and I have so found in accepting the second defendant`s evidence in this regard

15 Siti Ramlah `s case was not authority for such a proposition and Yatim J did not so hold. All Yatim J did in the passage in his judgment that the second defendant referred to in support was to recite the facts of that case. The gift under s 52 was therefore void.

(1) Subject to this section and sections 100 and 102, where an individual is adjudged bankrupt and he has at the relevant time (as defined in section 100) entered into a transaction with any person at an undervalue, the Official Assignee may apply to the court for an order under this section. (2) The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that individual had not entered into that transaction. (3) For the purposes of this section and sections 100 and 102, an individual enters into a transaction with a person at an undervalue if -

(a) he makes a gift to that person or he otherwise enters into a transaction with that person on terms that provide for him to receive no consideration; (b) (c)

(1) Subject to this section, the time at which an individual enters into a transaction at an undervalue or gives an unfair preference shall be a relevant time if the transaction is entered into or the preference given -

(a) in the case of a transaction at an undervalue, within the period of 5 years ending with the day of the presentation of the bankruptcy petition on which the individual is adjudged bankrupt; (b) (c)

(2) Where an individual enters into a transaction at an undervalue or gives an unfair preference at a time mentioned in subsection (1) (a), (b) or (c), that time is not a relevant time for the purposes of sections 98 and 99 unless the individual -

(a) is insolvent at that time; or (b)

(3) Where a transaction is entered into at an undervalue by an individual with a person who is an associate of his (otherwise than by reason only of being his employee), the requirements under subsection (2) shall be presumed to be satisfied unless the contrary is shown. (4)

A person is an associate of an individual if that person is the individual`s spouse, or is a relative, or the spouse of a relative of the individual or his spouse.

21 (b). the gift was made within five years, and

22 (c). as the gift was made to an associate of the bankrupt, there was a presumption of insolvency.

Christopher Lau JC

Tan Liam Beng (Drew & Napier) for the plaintiffs
Siaw Kheng Boon (Siaw Kheng Boon & Co) for the second defendant
Gan Kam Yuin (Bih Li & Lee) for the Official Assignee