FEDERAL COURT OF AUSTRALIA

Christie (Trustee), in the matter of Kian (Bankrupt) v Kian [2019] FCA 1141

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding in the High Court of the Republic of Singapore styled “In the matter of Tan Boon Kian”, with High Court of Singapore case number HC/B 533/2018 (the Foreign Proceeding), in relation to Tan Boon Kian be recognised as a foreign proceeding in relation to Tan Boon Kian as bankrupt pursuant to Art 17(1) of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (the Model Law) and s 6 of the Cross-Border Insolvency Act 2008 (Cth).

2.    The Foreign Proceeding be recognised as a foreign main proceeding pursuant to Art 17(2) of the Model Law.

3.    The administration, realisation and distribution of the respondent’s assets located in Australia be entrusted to the applicant pursuant to Art 21(1)(e) of the Model Law.

4.    All powers normally available to a trustee in bankruptcy appointed under the provisions of the Bankruptcy Act 1966 (Cth) be made available to the applicant pursuant to Art 21(1)(g) of the Model Law.

5.    The respondent’s title to the properties described in Schedule A to this Application be vested in the applicant as registered owner of an estate in fee simple pursuant to Art 21(1) of the Model Law.

6.    Any party affected by these orders is at liberty to apply upon 5 business days’ notice.

7.    The applicant’s costs of and incidental to this proceeding be costs in the bankruptcy of the respondent.

Schedule A

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1    This is an application by the applicant in his capacity as trustee of the bankrupt estate of Tan Boon Kian to recognise Singaporean personal bankruptcy proceedings in relation to Mr Tan as a foreign main proceeding under the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (the Model Law) and s 6 of the Cross-Border Insolvency Act 2008 (Cth), as well as consequential relief under the Model Law to give effect to the recognition of the Singaporean personal bankruptcy proceedings.

2    The evidence establishes that Mr Tan is a citizen and habitual resident of the Republic of Singapore. Further, on 19 April 2018 Mr Tan was made bankrupt by orders made in the High Court of the Republic of Singapore and from that time until 18 December 2018 his estate was administered by the Official Assignee and on the making of the bankruptcy order under the relevant Bankruptcy Act 1995 (SG), Mr Tan’s property vested in the Official Assignee. On 18 December 2018 the applicant, Mr Christie, was appointed as a private trustee of Mr Tan’s estate which is a permissible appointment under the relevant Bankruptcy Act 1995 (SG) and in that capacity Mr Christie has all of the functions and duties and may exercise all of the powers of the Official Assignee.

3    The evidence also establishes that Mr Tan is, together with his former wife, the registered proprietor of four parcels of real property in Victoria which are encumbered by a registered mortgage to the United Overseas Bank Limited.

4    In order to obtain the orders that he seeks, Mr Christie must satisfy the criteria set out in the Cross-Border Insolvency Act, the Model Law, and in the Federal Court (Bankruptcy) Rules 2016 (Cth) (the Bankruptcy Rules).

5    In Official Assignee in Bankruptcy of the Property of McCormick v McCormick [2018] FCA 410, Rangiah J summarised the criteria as follows:

[8] The status-based criteria are:

(a)    the relevant proceeding must be a “foreign proceeding” within the meaning of Art 17(1) and Art 2(a) of the Model Law;

(b)    the applicant must be a “foreign representative” within the meaning of Art 17(1) and Art 2(d); and

(c)    pursuant to Art 17(1)(d), the application must be submitted to a Court to which Art 4 of the Model Law, through s 10 of the Act, refers.

[9] The procedural criteria are:

(a)    the application must satisfy Art 17(1)(c) of the Model Law, which requires compliance with the requirements of Art 15(2);

(b)    there must be compliance with s 13 of the Act; and

(c)    there must be compliance with r 14.03 of the Bankruptcy Rules.

[10] If these criteria are satisfied, the following further issues arise:

(a)    whether the foreign proceeding is a “foreign main proceeding” within Art 17(2)(a) of the Model Law, or a “non-main proceeding” within Art 17(2)(b);

(b)    whether there is any reason to refuse recognition of the foreign judgment under Art 6 on the basis that recognition would be manifestly contrary to the public policy of Australia;

(c)    what orders should be made under Art 21; and

(d)    whether, for the purposes of Art 21(2), the interests of the creditors in the State, and for Art 22(1), the interests of the creditors and other interested persons, including the debtor, are adequately protected.

6    As the applicant has submitted, if the status-based and procedural criteria are established, then the foreign proceeding must be recognised, unless recognition would be manifestly contrary to the public policy of Australia. It is sufficient to observe that no such public policy consideration arises in the present case.

7    The applicant’s submissions identify the circumstances which satisfy the status-based criteria in the present case. In short, the proceeding in the High Court of the Republic of Singapore is a “foreign proceeding” and Mr Christie is a “foreign representative” within the meaning of those terms as specified in Art 2 of the Model Law. Further, the Federal Court of Australia is taken to be specified in Art 4 of the Model Law as a court competent to perform the functions referred to in the Model Law. I therefore accept that the status-based criteria are satisfied.

8    The evidence also establishes, as set out in the written submissions for the applicant, that the procedural criteria are satisfied. Article 17(1)(c) of the Model Law provides that a foreign proceeding will be recognised if, amongst other things, the application meets the requirements of Art 15(2). Article 15(2) requires that an application for recognition be accompanied by a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative, a certificate from the foreign court affirming the existence of the foreign proceeding and of the appointment of the foreign representative, or any other evidence acceptable to the court of the existence of the foreign proceeding and of the appointment of a foreign representative. As has been pointed out in the written submissions for the applicant, the application in this case is accompanied by certified copies of the orders made in the High Court of the Republic of Singapore which commenced the foreign proceeding and appointed Mr Christie. Mr Christie’s affidavit also constitutes further evidence of the existence of the Singaporean proceeding and of Mr Christie’s appointment. I therefore accept that Art 15(2) is satisfied in the present case.

9    Section 13 of the Cross-Border Insolvency Act provides for additional requirements that the application for recognition be accompanied by a statement identifying all foreign proceedings in respect of a debtor that are known to the foreign representative and that the application must be accompanied by a statement identifying, relevantly, all proceedings under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) in respect of the debtor. Mr Christie’s evidence is that with the exception of the proceeding in the Singaporean High Court, he is not aware of any other proceeding, any other foreign proceedings or any proceedings under the Bankruptcy Act in respect of Mr Tan.

10    Rule 14.03 of the Bankruptcy Rules requires Mr Christie as the foreign representative of the bankrupt estate to file an interim application seeking directions and to serve a copy of the application and any other document on the respondent and any other person that the court directs service be effected upon at least five days before the hearing. Justice Perry made orders on 26 March 2019 concerning the publication of notice of the making of this application and for the service on Mr Tan and creditors of the estate. The evidence establishes that the notice of the application was published in The Straits Times in Singapore where Mr Tan has his habitual residence in the prescribed form and that Mr Tan as the registered the mortgagee, United Overseas Bank Limited, Ms Poh, and all other creditors of Mr Tan have been served. Accordingly, I accept that rule 14.03 of the Bankruptcy Rules and, accordingly, all of the procedural criteria are satisfied.

11    I also accept the submissions for the applicant that the evidence establishes that Mr Tan’s habitual residence is Singapore and that, accordingly, Singapore is presumed to be the centre of the debtor’s main interests. It follows that, according and consistently with the submissions that have been made, the proceeding in the High Court of the Republic of Singapore is a foreign main proceeding and must be recognised as such.

12    The interim application seeks additional relief under Art 21 of the Model Law, being consequential relief which should be made having regard to the evidence. In short, that consequential relief entrusts to Mr Christie under Art 21(1)(e) of the Model Law, the administration, realisation and distribution of Mr Tan’s assets located in Australia and provides him with the powers normally available to the trustee in bankruptcy appointed under the provisions of the Bankruptcy Act as provided for in Art 21(1)(g) of the Model Law and that Mr Tan’s title to the properties in Victoria, which have been referred to above, be vested in Mr Christie as registered owner of an estate, pursuant to Art 21(1) of the Model Law. I accept the applicant’s submissions that the seeking of the consequential relief on the interim application is appropriate and that the granting of that relief is also appropriate consistently with the reasoning of Justice Rangiah in McCormick at [37].

13    Accordingly, for these reasons I am satisfied that orders should be made as sought by the applicant.

Associate:

Dated:    25 July 2019