Re Chow Cho Poon (Private) Limited [2011] NSWSC 300

Supreme Court of NSW|2011-04-04|Before: Barrett J

7 CLR 207 Hur v Samsun Logix Corporation [2009] FCA 372 ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859; (2007) 69 NSWLR 577 Re AFG Insurances Ltd [2002] NSWSC 844; (2002) 43 ACSR 60 Re Bear Stearns High-Grade Structured Credit Strategies Master Fund Ltd 389 BR 325 (2008) Re Betcorp Ltd 400 BR 266 (2009) Re Cavell Insurance Co (2006) 2169 DLR (4th) 679. Re Founding Partners Global Fund Ltd [2009] SC (Bda) 36 Com Re HIH Casualty and General Insurance Ltd; McGrath v Riddell [2008] UKHL 21; [2008] 1 WLR 852 Re Independent Insurance Co Ltd [2005] NSWSC 587; (2005) 193 FLR 43 Re Kingate Global Fund Ltd [2011] SC (Bda) 2 Com Re Ran; Lavie v Ran 607 F 3d 1017 (2010) Re Stanford International Bank Ltd [2009] EWHC 1441 (Ch) Rubin v Eurofinance SA [2009] EWHC 2129 (Ch); [2010] 1 All ER (Comm) 81 Rubin v Eurofinance SA [2010] EWCA Civ 895; [2011] 2 WLR 121 United States v J A Jones Construction Group LLC 333 BR 637 (2005) Williams v Simpson [2010] NZHC 1631 Williams v Simpson (No 5) [2010] NZHC 1786 Category: Principal judgment Parties: Chow Cho Poon (Private) Limited - First Plaintiff Tam Chee Chong as liquidator of Chow Cho Poon (Private) Limited - Second Plaintiff Representation: Counsel: Ms C O Gleeson - Plaintiffs Solicitors: Corrs Chambers Westgarth - Plaintiffs File Number(s): 2011/54718

Background 1Chow Cho Poon (Private) Limited (" CCP ") is a company incorporated under the Companies Act (Cap 50) of the Republic of Singapore ("the Singapore Companies Act "). 2On 22 November 2007, the High Court of the Republic of Singapore ("Singapore court") ordered that CCP be wound up pursuant to s 254(1)(i) of the Singapore Companies Act and that Mr Tam Chee Chong be appointed liquidator of CCP. Section 254(1)(i) empowers the Singapore court to order winding up where that court "is of opinion that it is just and equitable that the company be wound up". 3The winding up is, in terms of s 247 of the Singapore Companies Act , a winding up "by the Court" and is thus distinguished from a voluntary winding up. 4On 28 February 2008, the Singapore court made a further order. That order was made on an application by the committee of inspection in the winding up and was in the following terms: "Pursuant to Rule 153(1) of the Companies (Winding Up) Rules (Cap. 50), the liquidator of Chow Cho Poon (Private) Limited (in liquidation) (the 'Company'), Mr Tam Chee Chong of Deloitte and Touche, be authorised to open, close, redesignate and/or operate special accounts with The Hong Kong Shanghai Banking Corporation, Oversea-Chinese Banking Corporation Ltd, Westpac Bank and/or such other bank(s) as may be selected by the Committee of Inspection.

The present application 5By originating process filed in this court on 18 February 2011 and heard by me on 4 April 2011, the liquidator and CCP itself, as plaintiffs, seek declaratory relief as follows: "1. A declaration that this Court recognises the appointment of the second plaintiff as the liquidator for the time being of Chow Cho Poon (Private) Limited (In Compulsory Liquidation) ( Company ), pursuant to orders of the High Court of the Republic of Singapore made on 22 November 2007 in case number CWU57/2007/A pursuant to Part X, Division 2 of the Companies Act (Cap. 50). 2. A declaration that this Court recognises the orders of the High Court of the Republic of Singapore made on 28 February 2008 in case number CSU57/2007/A. 3. A declaration that the second plaintiff, in his capacity as liquidator of the Company, is authorised to open, close, redesignate and operate (such operation to include, without limitation, withdrawal and deposit of funds) the Company's bank accounts in Australia, being account numbers 032003-XXXXXX and 032102-YYYYYY with Westpac Banking Corporation ( the Bank Accounts ). 4. A declaration that the second plaintiff is authorised to do anything in connection with the Bank Accounts which he is entitled to do under the law of Singapore in his capacity as liquidator of the Company." 6As the originating process makes clear, the liquidator and CCP rely on s 581(2)(a) of the Corporations Act 2001 (Cth)

The evidence 7The application is made in circumstances set out in the liquidator's affidavit. In the course of his administration, the liquidator became aware that CCP had funds on deposit with Westpac Banking Corporation ("Westpac") in Sydney. There are two accounts : a trading account and a fixed deposit account . The liquidator wrote to Westpac in Sydney making a number of inquiries and requests concerning these accounts , at the same time giving Westpac particulars of his appointment by the Singapore court. 8The liquidator later sent to Westpac a copy of the Singapore court's order of 28 February 2008 and asked that Westpac "render the accounts operative" by the joint signatures of any of two of several persons whose names and specimen signatures were set out in the liquidator's covering letter. Westpac said in response: "Westpac is not in a position to render the accounts operational as your appointment as liquidator is required to be recognised by the courts within Australia." 9The liquidator then pointed out the provisions of s 580 and s 581 of the Corporations Act 2001 (Cth) and regulation 5.6.74 of the Corporations Regulations 2001 (Cth) and invited Westpac's confirmation that these were "sufficient evidence to render the accounts operational". Westpac replied: "We confirm that we are familiar with Sections 580 & 581 of the Corporations Act 2001 (Cth) and in terms of these provisions, we assume that you will be making an application to the court of appropriate jurisdiction to have your appointment as the Liquidator of Chow Cho Poon (Private) Limited recognised here in Australia. For its part, the bank can say that if it were on notice of an order from a court of appropriate jurisdiction recognising your appointment as the said Company's liquidator here in Australia, it would then be able to act in accordance with your instructions." 10It is with a view to satisfying Westpac's requirements thus stated that the liquidator and CCP have approached this court.

Section 581(2)(a) of the Corporations Act 11As I have said, the liquidator and CCP rely on s 581(2)(a) of the Corporations Act in making the present application. It is appropriate to quote s 581 in full: "(1) All courts having jurisdiction in matters arising under this Act, the Judges of those courts and the officers of, or under the control of, those courts must severally act in aid of, and be auxiliary to, each other in all external administration matters. (2) In all external administration matters, the Court: (a) must act in aid of, and be auxiliary to, the courts of: (i) external Territories; and (ii) States that are not in this jurisdiction; and (iii) prescribed countries; that have jurisdiction in external administration matters; and (b) may act in aid of, and be auxiliary to, the courts of other countries that have jurisdiction in external administration matters. (3) Where a letter of request from a court of an external Territory, or of a country other than Australia, requesting aid in an external administration matter is filed in the Court, the Court may exercise such powers with respect to the matter as it could exercise if the matter had arisen in its own jurisdiction. (4) The Court may request a court of an external Territory, or of a country other than Australia, that has jurisdiction in external administration matters to act in aid of, and be auxiliary to, it in an external administration matter." 12This court is within the definition of "Court" for these purposes: Corporations Act , s 58AA. The Republic of Singapore is one of the "prescribed countries" referred to in s 581(2)(a)(iii): Corporations Regulations , reg 5.6.74(f). In addition, the subject matter of the present application is within the s 580 definition of "external administration matter" because it is "a matter relating to . . . winding up, outside Australia, a body corporate". A company incorporated under the Singapore Companies Act is, by virtue of s 19(5) of that Act, a "body corporate" and the process of winding up under Part X of that Act is very similar to the corresponding process under the Australian legislation, so that there is no difficulty in characterising it as the "winding up", in Singapore (and therefore "outside Australia"), of "a body corporate". The questions that can sometimes arise when there is a need to classify foreign proceedings for the purposes of our law do not arise here: compare ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859; (2007) 69 NSWLR 577; Hur v Samsun Logix Corporation [2009] FCA 372. 13I am satisfied that, subject to a possibility to be mentioned presently (see paragraph [23] below), s 581(2)(a) imposes on this court an obligation to "act in aid of" and to "be auxiliary to" the Singapore court in relation to the subject matter of the present application.

"Act in aid of, and be auxiliary to" 14A statutory requirement that United Kingdom courts and "every British court elsewhere" having jurisdiction in bankruptcy or insolvency "act in aid of and be auxiliary to each other in all matters of bankruptcy" was imposed by s 74 of the Bankruptcy Act 1869 (UK) and included in later legislation (including as s 118 of the Bankruptcy Act 1883 and s 22 of the Bankruptcy Act 1914 (UK)). The context of the enactment and the reasons for it are discussed in the Privy Council's advice in Al-Sabah v Grupo Torras SA [2005] UKPC 1; [2005] 2 AC 333. 15The terms of s 581(2)(a) describing the court's obligation are relevantly identical with those of s 29(2)(a) of the Bankruptcy Act 1966 (Cth). The content of the obligation under the Bankruptcy Act provision was discussed by three judges of the Federal Court in Ayres v Evans (1981) 39 ALR 129. Northrop J said (at 138): "In the present case, the request in aid comes within s 29(2)(a): see sub-s (5). In this respect, the use of the word 'shall' is to be contrasted with the use of the word 'may' in s 29(2)(b). The word 'shall' is used in s 122 of the Imperial Bankruptcy Act. Speaking of that section, in a case where a court in the Isle of Man exercising jurisdiction in bankruptcy requested the aid of the High Court in England in a matter of bankruptcy, Farwell J, in Re Osborn (1932) 15 B & CR 189, said at 194: 'I think it is clear that I am bound in a proper case, under s 122, to assist the court in the Isle of Man in the bankruptcy which is the bankruptcy under that jurisdiction. I think under the section it is plain that this court must give such assistance as it can, but subject, of course, to the considerations which would arise if there was also a bankruptcy in this country, as to the rights of the creditors and other persons in this country. There not being any such conflict, I think this court is bound to give all the assistance that it can. On the other hand, it is, in my judgment, a matter of discretion in this court as to what assistance it ought to give in each case, and I think I am therefore certainly entitled to impose conditions in any order which I think it right to make in aid of the bankruptcy in the Isle of Man.' See also Re Jackson [1973] NILR 67 and Re a Debtor [1980] 3 All ER 665; [1980] 3 WLR 758, per Goulding J, at 771. 16Fox J said (at 133) that s 29(2)(a) "at least requires the court to entertain an application for aid in a case to which it applies". McGregor J, saw the section as imposing an obligation to assist in the particular cases which it applied, they being cases in which Parliament had regarded reciprocity with the Australian system as having been achieved. 17Northrop J pointed out (at 138) that s 29(2)(a) is a source of not only obligation but also jurisdiction: "In my opinion, s 29(2)(a) of the Bankruptcy Act (Cth) confers upon the Federal Court a jurisdiction which it is bound to exercise when the two requirements referred to therein are satisfied." 18Fox J was of the same opinion (at 133), observing that the effect of the section is that the Federal Court "has jurisdiction to give aid". 19The corresponding provision of the Imperial Act of 1883 was described by Griffith CJ in Hall v Woolf [1908] HCA 74; (1908) 7 CLR 207 at 212 in this way: "Sec. 118 of the English Bankruptcy Act 1883 does not create any new rights, but only creates new remedies for enforcing existing rights." 20The Privy Council observed in Al Sabah v Grupo Torras SA (above) that the aim of provisions like s 581(2)(a) is to provide a basis for the exercise of the domestic court's jurisdiction where such a basis does not already exist. This caused me to say in Re Independent Insurance Co Ltd [2005] NSWSC 587; (2005) 193 FLR 43 (at [16]) that such provisions do not augment the court's jurisdiction except in a geographic sense. To "act in aid" is to assist; to "be auxiliary" is to provide support. The court's duty under s 581(2)(a) is therefore to deploy its own general jurisdiction so as to assist and support the foreign court by causing its orders to have effect and the objectives of those orders to be achieved. 21The compulsory nature of s 581(2)(a) leaves no room for the court to take the view that some aspect of the legal system under which the orders were made is at odds with a like aspect of Australia's legal system and that, as a matter of discretion, assistance should therefore be denied. In the present case, the Singapore liquidator asks that this court act in aid of the Singapore court by taking steps to facilitate the liquidator's obtaining possession of assets in Australia of the Singapore company. If an Australian company were subject to winding up by order of this court and, being registered as a foreign company in Singapore, was also subject to winding up by order of the Singapore court, s 377(3)(c) of the Singapore Companies Act would preclude resort to Singapore assets by the Australian liquidator until all Singapore debts had been paid. The existence of that difference between the Australian and Singapore systems is quite beside the point in addressing a s 581(2)(a) application. 22In the present case, the grant of the relief the liquidator seeks will give added efficacy to the orders of the Singapore court, in that the authority of this court will be superimposed on those orders. In that way, this court will assist the Singapore court and act in support of it. The matter is therefore within s 581(2)(a) so as to enable this court to grant the relief sought - subject to the possibility already mentioned to which I now turn.

Is s 581(2)(a) denied effect in this case? 23Section 581(2)(a) is within Division 9 of Part 5.6 of the Corporations Act . It is necessary, therefore, to consider the possibility that s 581(2)(a) is deprived of effect by s 22 of the Cross-Border Insolvency Act 2008 (Cth): "If the Model Law (as it has the force of law in Australia) or a provision of this Act is inconsistent with a provision of: (a) Division 9 of Part 5.6 of the Corporations Act 2001; or (b) Part 5.7 of the Corporations Act 2001 the Model Law or the provision of this Act prevails, and the provision of the Corporations Act 2001 has no effect to the extent of the inconsistency." 24The reference here to the "Model Law" is a reference to the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade set out in schedule 1 to the Cross-Border Insolvency Act which has the force of law in Australia by virtue of s 6 of that Act. In order to avoid confusion, I shall refer to the UNCITRAL document as the " UNCITRAL Model Law " and to the content of schedule I to the Cross-Border Insolvency Act as "the enacted Model Law ". 25The possibility that s 22 of the Cross-Border Insolvency Act operates upon s 581(2) of the Corporations Act arises because of art 25 of the enacted Model Law: "In matters referred to in article 1, the court shall cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a [insert the title of a person or body administering a reorganization or liquidation under the law of the enacting State]." 26By virtue of s 11 of the Cross-Border Insolvency Act , the part of this provision in square brackets is to be taken to refer to a registered liquidator within the meaning of s 9 of the Corporations Act . 27The aspect of the "matters referred to in article 1" of relevance for present purposes is indicated by the following part of art 1: "The present Law applies where: (a) Assistance is sought in this State by a foreign court or a foreign representative in connection with a foreign proceeding; . . ." 28The reference to "this State" is a reference to Australia: Cross-Border Insolvency Act , s 7. 29The Explanatory Memorandum that accompanied the Bill that became the Cross-Border Insolvency Act makes it clear that the conflicts with which s 22 of that Act is concerned include conflict between s 581 of the Corporations Act and art 25 of the enacted Model Law . The Explanatory Memorandum explains s 22 as follows: "41 There is the potential for inconsistency between the Model Law and section 29 of the Bankruptcy Act (which deals with the provision of the court's assistance to foreign courts and relevant authorities). 42 The Model Law imposes a mandatory obligation on the court to cooperate with courts or representatives of foreign jurisdictions. The words `shall cooperate' are used in the relevant part of the Model Law [article 25]. In contrast, section 29 of the Bankruptcy Act imposes a mandatory obligation on the court to assist only the courts of prescribed countries (subsection 29(5) of the Bankruptcy Act states what prescribed countries are) but permits the court to exercise its discretion as to whether it should assist other foreign courts. 43 To address this potential inconsistency, the Bill provides that, if a provision of the Model La w or a provision of the Bill is inconsistent with section 29 of the Bankruptcy Act, the provision in the Model Law or provision of the Bill will prevail [Part 3, clause 21]. 44 For similar reasons, article 25 of the Model Law may also give rise to potential inconsistencies with Division 9 of Part 5.6 of the Corporations Act (in particular section 581 of the Corporations Act) which concerns the provision of assistance to foreign courts. 45 Section 581 of the Corporations Act imposes a mandatory obligation on the court to assist the courts of external territories and prescribed countries (prescribed countries are specified in regulation 5.3.74 of the Corporations Regulations 2001). In relation to other foreign courts, the court is permitted to exercise its discretion as to whether it should provide assistance. 46 Another potential area of inconsistency with the Corporations Act arises in relation to Part 5.7 of the Corporations Act. Part 5.7 of the Corporations Act concerns the winding up of bodies other than companies. Part 5.7 of the Corporations Act provides for a separate insolvency administration in Australia and does not give recognition to any foreign insolvency proceeding. For example, subsection 582(3) of the Corporations Act provides that a body may be wound up despite, among other things, a concurrent winding up in a foreign jurisdiction. 47 To address these potential inconsistencies, the Bill provides that, if a provision of the Model Law or a provision of the Bill is inconsistent with Division 9 of Part 5.6 of the Corporations Act or Part 5.7 of the Corporations Act, that provision in the Model Law or provision of the Bill will prevail [Part 3, clause 22]." 30The concern of the legislature relevant to the present circumstances may thus be taken to have been that obedience by the court to the s 581(2)(a) duty to "act in aid of, and be auxiliary to" a foreign court might come into collision with the art 25 duty to "cooperate with" the foreign court (or, perhaps, a foreign representative). The requirement under art 25, like that imposed by s 581(2)(a), is compulsory. The relevant words are, "the court shall cooperate to the maximum extent possible". The obligation thus to "cooperate" extends to every case where "assistance is sought" in Australia by a "foreign court" or a "foreign representative".

Conditions for the applicability of art 25 31In the present case, there is no letter of request under s 581(3) of the Corporations Act and no other intimation by the Singapore court that it wishes to have the assistance of this court. The case is therefore not one in which this court's assistance is sought by a foreign court. Under art 9 of the enacted Model Law , however, a "foreign representative" is "entitled to apply directly to a court in this State", including, no doubt, for "assistance" as referred to in art 1(a). 32The application now before the court is an application by the liquidator (as well as by CCP). It is, in terms and in substance, an application for this court's assistance. The case will therefore be properly regarded as one in which assistance is sought by a "foreign representative" if the liquidator is a "foreign representative" within the meaning of the enacted Model Law . 33The status of the requesting liquidator as a "foreign representative" is thus one condition for the application of art 25. Another is that performance of the request (by granting the relief the liquidator and CCP seek and thereby rendering the assistance the liquidator wishes to have) in truth amounts to this court's "cooperating with" the Singapore court in the sense relevant to the operation of art 25.

"Foreign proceeding" 34The term "foreign representative" is defined in art 2 of the enacted Model Law as follows: "'Foreign representative' means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor's assets or affairs or to act as a representative of the foreign proceeding." 35There can thus be no "foreign representative" unless there is a "foreign proceeding". Article 2 defines "foreign proceeding" as follows: "'Foreign proceeding' means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation." 36Article 2 also defines "foreign main proceeding" and "foreign non-main proceeding". Each of these is a particular kind of "foreign proceeding", although "foreign main proceeding" and "foreign non-main proceeding" do not, between them, cover the whole ground of "foreign proceeding": see, for example, Re Bear Stearns High-Grade Structured Credit Strategies Master Fund Ltd 389 BR 325 (2008); Re Ran; Lavie v Ran 607 F 3d 1017 (2010); Williams v Simpson (No 5) [2010] NZHC 1786. The definitions of the particular kinds of "foreign proceeding" are principally relevant to the processes of recognition by the local court under chapter III of the enacted Model Law . 37In deciding whether the Singapore liquidator is a "foreign representative", as defined by the enacted Model Law , it is necessary to consider only whether the Singapore winding up is a "foreign proceeding" - whether "main", "non-main" or neither "main" nor "non-main" is unimportant. 38The powers, duties and responsibilities of a liquidator under a Singapore winding up are very similar to those of a liquidator under the Corporations Act . It is to my mind clear, therefore, that the liquidator of CCP is a "foreign representative" if the winding up of CCP is a "foreign proceeding". 39Because it is a winding up "by the Court", according to Singapore law, the winding up of CCP is a "judicial . . . proceeding". It is also, of its nature, a proceeding in which assets of the company concerned "are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation". Two other questions must be answered in the affirmative to justify the conclusion that the Singapore winding up is a "foreign proceeding": first, is CCP properly regarded as "the debtor; second, is the proceeding "pursuant to a law relating to insolvency"? 40The instinctive answer to each question is "no". The winding up is not a winding up in insolvency. It was not the inability of CCP, as a debtor, to pay its debts as they fell due that constituted the ground on which the Singapore court ordered that the company be wound up. Rather, the court concluded, for reasons that the evidence does not disclose, that it was "just and equitable" that the company be wound up. It exercised jurisdiction under the Singapore Companies Act to make a winding up order where the court was satisfied that it was "just and equitable" to do so. In those circumstances, it is difficult to see how the Singapore law "pursuant to" which the winding up is in place is properly characterised as "a law relating to insolvency". 41Instructive, however, is the decision of Lewison J in Re Stanford International Bank Ltd [2009] EWHC 1441 (Ch) in which one of the questions addressed was whether the winding up of an Antigua company by order of the Antigua court was "pursuant to a law relating to insolvency" for the purposes of the UNCITRAL Model Law as part of the domestic law of the United Kingdom (embodied in the Cross-Border Insolvency Regulations 2006 (UK)). The circumstances are described in the judgment (at [91] - [92]): "The section under which the [petitioner] prayed for a winding up order enables such an order to be made where the company in question has failed to comply with regulatory requirements. Insolvency is not a ground for winding up under that section. However, the order of Harris J made on the petition not only recites that the court was satisfied that the conditions set out in section 300 had been met, but also recites that the court had considered the evidence adduced in support of the petition and that the court: '... having determined that in the circumstances it is just and equitable that [SIB] be liquidated and dissolved under the supervision of this Court pursuant to the Act.' The formal order that the court made was that SIB be liquidated and dissolved under the supervision of the court 'pursuant to the provisions of the International Business Corporations Act ...'." 42After referring to the evidence before the Antigua court and to further observations made by the Antigua judge, Lewison J continued (at [94] - [95]): "It is, in my judgment, clear from the court's order and the judgment of Harris J that it was not basing the order on section 300 alone. It made the order because, having considered the evidence, it concluded that it was just and equitable that SIB be wound up. An important part of the evidence was that SIB was insolvent and could not be reorganised via the receivership. In my judgment at least one of the reasons why Harris J made the order that he did was that he was satisfied that SIB was insolvent. I hold, therefore, that the Liquidators were appointed pursuant to a law relating to insolvency . . . " 43According to this approach, the question whether winding up ordered by a foreign court is a proceeding "pursuant to a law relating to insolvency" is to be answered not merely by reference to the content of the foreign law provision under which the foreign court acted in ordering the winding up. The Antigua court accepted the contention of the petitioner that failure to comply with regulatory requirements established a basis for winding up, this being a discrete and sufficient ground under the local law. In addition and although the petitioner apparently did not rely on any just and equitable ground, the Antigua court expressed an opinion that, in the circumstances, "it is just and equitable that [the company] be liquidated and dissolved under the supervision of the Court pursuant to the Act". There was, it seems, no express finding that the company was insolvent but, given the evidence on that matter that was before the Antigua court, Lewison J was prepared to infer that "at least one of the reasons why Harris J made the order he did was that he was satisfied that SIB was insolvent". It was that alone that grounded the English court's decision that the winding up was "pursuant to a law relating to insolvency". 44The decision of Lewison J was upheld on appeal: Re Stanford International Bank Ltd [2010] EWCA Cviv 137; [2010] 3 WLR 941. The Chancellor, Sir Andrew Morritt, characterised the relevant Antigua law in this way (at [15]) with the concurrence of Arden LJ and Hughes LJ on this aspect: "Part IV of the relevant Act provided for the winding up of corporations incorporated in Antigua for the purpose of carrying on an international trade or business on just and equitable grounds, which include insolvency, as well as infringements of regulatory requirements. The combination of that part of the Act and the order of the court made provision for the collection of all the assets of SIB and their application in satisfaction of all its obligations in the order of priority for which the law provided. That process was expressly subject to the supervision of the High Court of Antigua and Barbuda. Creditors and others were obliged to seek their remedy in the liquidation because individual proceedings were stayed or prohibited. The ultimate purpose of the process was the liquidation, in the sense of dissolution of SIB. Such a process satisfies all the conditions for the application of the definition because it is collective, judicial and pursuant to a law relating to insolvency." 45The Antigua judgment ( Fundora v Stanford International Bank Ltd [2009] ECarSC 113) makes it clear that the winding up order was made under s 300 of the International Business Corporations Act , the relevant parts of which are: "(1) The appropriate official or any interested person may apply to the court for an order dissolving a corporation, if the corporation (a) has failed for two or more consecutive years to comply with the requirements of this Act with respect to the holding of annual meetings of shareholders; (b) has contravened section 19, 134, 135 or 146; or (c) has procured any certificate under this Act by misrepresentation. ... (3) Upon the application under this section or section 299, the court may order that the corporation be dissolved or that the corporation be liquidated and dissolved under the supervision of the court; and the court may make any other order it thinks fit." 46The judgment shows that the court was satisfied that matters within paragraphs (b) and (c) of s 300 were proved. The judge then said (at [61]): "The court is satisfied that the breach under s 300 is made out and further to this considered the final question; having been satisfied that the grounds for wind up and dissolution under s 300 have been made out , should the court grant the order sought . Counsel for FSRC submits that the court ought to grant the Order. Counsel for Mr Fundora, as a party who filed its notice of intention to appear on the FSRC Petition, submitted that SIB ought to be wound up. Both counsel directed the court to the obvious insolvency and international crisis arising from it. .... " [emphasis added] 47The ground for winding up was thus confined to regulatory misbehaviour. Insolvency was, in the particular case, a factor relevant to the court's discretion to make a winding up order. As the English Court of Appeal observed, however, the law allowing winding up on the regulatory ground was a law comprehending several grounds, including insolvency, so that it was correct to characterise it as a law relating to insolvency. 48This approach to characterisation is consistent with that taken by the United States Bankruptcy Court for the District of Nevada in Re Betcorp Ltd 40 BR 266 (2009). It was there held that the members voluntary winding up of an Australian company under the Corporations Act was a "foreign proceeding" for the purposes of the UNCITRAL Model Law as enacted in the United States ( Chapter 15 of Title 11 of the U.S. Code, 11 U.S.C. 101-1532 - the US Bankruptcy Code ). The process by which the winding up was initiated included a declaration by a majority of the company's directors that they had formed the opinion that "the company will be able to pay its debts in full within a period not exceeding 12 months after the commencement of the winding up": Corporations Act , s 494(1). The situation was thus one of positive determination by the directors that the company was not insolvent. 49The United States court placed emphasis on the nature of the relevant legislation as a whole in deciding whether the administration was under "a law relating to insolvency". The Corporations Act was viewed as the relevant "law". The court characterised it as a law that "regulates the whole of the life-cycle of an Australian corporation", with chapter 5 containing "provisions that deal with corporate insolvency and allow for the adjustment of debts". The court noted that the Australian Parliament had, in s 8 of the Cross-Border Insolvency Act, identified chapter 5 (other than parts 5.2 and 5.4A) as among the laws of Australia "relating to insolvency" referred to in the enacted Model Law. 50In Re ABC Learning Centres Ltd 2010 WL 5439808 (Bkrtcy D Del), the United States Bankruptcy Court for the District of Delaware was called upon to decide the status of the creditors voluntary winding up of an Australian company arising as a sequel to voluntary administration under part 5.3A of the Corporations Act . On the question whether the winding up was "under a law relating to insolvency or adjustment of debt", the court referred to Re Betcorp Ltd and said: "The Court finds that as the Liquidation Proceedings are authorized under and are being conducted pursuant to the Corporations Act, this element of [the definition] is satisfied." 51These English and American decisions point to a clear basis on which the whole of the Singapore Companies Act or, at the least, the whole of its winding up provisions might be classified as "a law relating to insolvency", even though the particular winding up was ordered on the just and equitable ground alone and, so far as this court has been told, without any finding (express or implied) of insolvency. 52In none of Re Stanford International Bank Ltd (both at first instance and on appeal), Re Betcorp Ltd and Re ABC Learning Centres Ltd , I think, was any separate attention given to the question whether the company subjected to winding up was properly described as the "debtor" - an expression apparently not defined by the UNCITRAL Model Law. Each court was apparently content to work on the basis that an entity subject to a "foreign proceeding" is, for that reason alone, within the relevant "debtor" concept.

"Cooperate with" 53I turn now to the question whether, if this court accedes to the application now under consideration, it will "cooperate with" the Singapore court or the Singapore liquidator (assuming that he is a "foreign representative"). 54The relevant concept of "cooperation" is elucidated by art 27 of the enacted Model Law . "Cooperation referred to in articles 25 and 26 may be implemented by any appropriate means, including: (a) Appointment of a person or body to act at the direction of the court; (b) Communication of information by any means considered appropriate by the court; (c) Coordination of the administration and supervision of the debtor's assets and affairs; (d) Approval or implementation by courts of agreements concerning the coordination of proceedings; (e) Coordination of concurrent proceedings regarding the same debtor; (f) [ The enacting State may wish to list additional forms or examples of cooperation ]." 55Section 18 of the Cross-Border Insolvency Act states, with reference to paragraph (f), that no additional forms of cooperation are included in the enacted Model Law . 56In all the art 27 instances, action by one court either at the other's request or in accordance with some plan subscribed to by both seems to be in contemplation. 57The question now before me is whether the local court "cooperates" with a foreign court simply by deploying its own jurisdiction in support of orders made by the foreign court - for example, by acceding to a litigant's request that a judgment of the foreign court be enforced. The question whether acting upon a litigant's request to enforce a foreign court's judgment constitutes "cooperation" in the art 25 sense arose in Rubin v Eurofinance SA [2009] EWHC 2129 (Ch); [2010] 1 All ER (Comm) 8. The English court was there asked to enforce a money judgment of the United States Bankruptcy Court in circumstances not within either United Kingdom legislation for the enforcement of foreign judgments or common law principles allowing an action to be brought on a foreign judgment. The proposition that enforcement was authorised by the United Kingdom's version of art 25 (which, incidentally, uses the word "may" instead of "shall") was addressed by the Deputy Judge who, after referring to UNCITRAL extrinsic materials, said (at [71]): "The general impression given by these passages, and of the wording of the provisions themselves, is that what was contemplated was that there should be practical co-operation and communication within the framework of the law in both States, but not that one State should disregard important provisions of its own legal system. The examples of the forms of co-operation in article 27 also give this impression, and it is to be noted that they provide for the co-ordination of proceedings, not for the proceedings in one country to be treated as proceedings in the other, which is in effect what the applicants contend for. I do not consider that permitting the foreign representative to enforce the judgment of a New York bankruptcy court directly in this country would constitute 'co-operation' within the meaning of these provisions. Much clearer words would have been used if that had been the intention behind these provisions." 58Like reservations were expressed when the matter reached the Court of Appeal: Rubin v Eurofinance SA [2010] EWCA Civ 895; [2011] 2 WLR 121. Ward LJ said (at [63]) with the concurrence of Wilson LJ and Henderson LJ: "[I]t is unnecessary to decide whether to cooperate with the New York Court by enforcing its judgment under the 2006 Regulations. What troubles me is that the specific forms of cooperation provided by Article 27 do not include enforcement. Indeed there is no mention anywhere of enforcement yet the Guidance clearly had it in mind. On the other hand cooperation 'to the maximum extent possible' should surely include enforcement, especially since enforcement is available under the common law. I would prefer to express no concluded view about the point since it is unnecessary to my decision." 59These reservations apply equally when the question is whether this court will "cooperate with" the Singapore court by granting, on the application of the liquidator (along with CCP itself), the declaratory relief sought in these proceedings. In my opinion, the reservations are in truth clear obstacles. I am not prepared to think that this court, by acceding to the liquidator's application without any request by (or, as far as is known, even knowledge of) the Singapore court, would "cooperate with" the Singapore court - with emphasis on the preposition "with". "Cooperate" means literally "work with" or "act with". What art 25 envisages is some form of collaboration, joint enterprise or agreed parallel or complementary action of two or more courts in relation to the exercise of the independent jurisdiction of each. This is made clear by the art 27 examples. It is not possible to think that one court can "cooperate with" another without that other being aware. 60Cooperation with a foreign court is not, however, the only kind of cooperation made compulsory by art 25 of the enacted Model Law . It also directs cooperation with "foreign representatives". It follows that, if the Singapore winding up is a "foreign proceeding" and the Singapore liquidator is accordingly a "foreign representative", art 25 compels this court to "cooperate with" him. 61The Singapore liquidator has approached this court. He, along with CCP itself, asks the court to make the declarations set out at paragraph [5] above. That is his sole request. The question is whether, if the court accedes to that request and makes the declarations, it will thereby "cooperate with" the applicant liquidator. 62In United States v J A Jones Construction Group LLC 333 B.R. 637 (2005), the District Court for the Eastern District of New York was asked by a receiver appointed by the Superior Court of Quebec to stay a pending breach of contract action. The court explained that it could not grant the relief sought by the receiver because relief under chapter 15 of the US Bankruptcy Code is available only after a foreign representative commences an ancillary proceeding for recognition of a foreign proceeding. The court also explained that if the receiver obtained recognition of the Canadian proceeding as a "foreign main proceeding" under chapter 15, the request for a stay would be unnecessary, as the automatic stay provided for in chapter 15 would achieve the same result. However, in accordance with the "comity that American courts should accord foreign bankruptcy proceedings," the District Court temporarily stayed the breach of contract action to give the foreign representative an opportunity to seek a recognition order. 63Matters of assistance by way of deployment of the local court's jurisdiction to further the objectives of the foreign administration were thus held to be within art 21 of the Model Law rather than art 25. Art 21 begins: "Upon recognition of a foreign proceeding, whether main or non-main, where necessary to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief, including: . . . " 64This makes it clear that the principal avenue available to a foreign representative seeking to protect assets or creditors' interests in the local jurisdiction is to obtain recognition of the proceeding under the locally adopted Model Law and to use that recognition as a means of access to relief granted by the court under art 21. Provision is made by art 19 for the court to grant interim relief, but only where a recognition application has been filed and is pending. An example of the use of that provision is found in Williams v Simpson [2010] NZHC 1631 where a search warrant was issued upon application made to the New Zealand court by a foreign trustee in bankruptcy by whom a recognition application had been made under the UNCITRAL Model Law as enacted in New Zealand. 65A foreign representative seeking an order of the local court for a purpose such as securing assets in the local jurisdiction or enforcing in the local jurisdiction an order of the foreign court may utilise art 21 after a recognition order has been made in respect of the foreign proceeding or art 19 when an application for such an order has been made but not yet determined. Article 25 does not provide a means of outflanking those provisions. The court does not "cooperate with" a plaintiff by giving a debt judgment or awarding damages or an account of profits or granting an injunction (nor does it "cooperate with" a defendant by refusing such relief). Rather, the court either decides that the plaintiff has a legal entitlement to the particular remedy and fulfils that entitlement by giving the remedy or decides that there is no entitlement and dismisses the claim. To say that the court "cooperates with" litigants by granting the relief they seek or even by hearing and determining cases brought by them is, to my mind, to mischaracterise the judicial process.

Inconsistency? 66My overall conclusion is that, while the Singapore winding up might well be a "foreign proceeding" for the purposes of the enacted Model Law , and the Singapore liquidator might therefore be a "foreign representative", the application brought by the liquidator (and CCP) does not activate the art 25 duty to "cooperate with" either the Singapore court or the Singapore liquidator. 67It follows that, in the circumstances of this case, a duty under art 25 to "cooperate with" the Singapore court or the Singapore liquidator does not co-exist with a duty under s 581(2)(a) of the Corporations Act to act in aid of and be auxiliary to the Singapore court. It is therefore possible for this court to perform the s 581(2)(a) duty without thereby potentially failing to perform an art 25 duty or otherwise acting inconsistently with art 25. There is accordingly, in this particular case, no inconsistency of the kind contemplated by s 22(1) of the Cross-Border Insolvency Act ; and this is so whether one adopts a "direct collision" test or a "cover the field" test with respect to inconsistency. 68In the result, therefore, s 581(2)(a) of the Corporations Act , as invoked in this case, is not deprived of effect by s 22(1) of the Cross-Border Insolvency Act . The s 581(2)(a) claim must therefore be dealt with on its merits.

Assessment of the s 581(2)(a) claim 69In addressing the substantive merits of the s 581(2)(a) application, I begin with the proposition that, as a matter of private international law, this court recognises the orders of the Singapore court and the status and powers of the liquidator derived from those orders and the law of Singapore. I would venture to repeat here what I said in Re Independent Insurance Co Ltd [2005] NSWSC 587; (2005) 193 FLR 43 at [18] to [20] concerning English provisional liquidators appointed by the High Court of Justice of England and Wales under the Insolvency Act 1986 (UK): "... I record at the outset that there can be no doubt on the central issue: this court does recognise the presentation of the English winding up petition on 17 June 2001, the pendency of the winding up application and the making and effect of the order of that date by which the provisional liquidators were appointed. It does so in accordance with principles of private international law referred to by Gummow J in Re Macks; Ex parte Saint (2000) 204 CLR 158: "The Queensland Act provides a source of the status and authority of the liquidator to institute and carry on the actions in the Supreme Court of South Australia in respect of those companies incorporated in Queensland. Section 118 of the Constitution requires full faith and credit to be given in that Supreme Court to the Queensland law. The same result would obtain under the common law rules of private international law, Queensland being the place of incorporation and that law determining who is entitled to act on behalf of corporations incorporated there ." [emphasis added] In Macaulay v Guaranty Trust Company of New York (1927) 44 TLR 99, receivers appointed by the Delaware Court of Chancery by "a combination of a winding up order and an administration order" in respect of an insolvent corporation incorporated in Delaware were, by the comity of nations, recognised in an English court in the same way as foreign assignees in bankruptcy are recognised as having the title to sue that derives from the foreign law under which they are appointed. Likewise, in Re IIT (1975) 58 DLR (3d) 55, the Ontario High Court recognised the authority of a Luxembourg court to appoint liquidators of a Luxembourg juristic entity and the status given to those liquidators by Luxembourg law. In the present case, the petition of 17 June 2001 is shown to have been presented under United Kingdom statute law in respect of a corporation owing its existence to that law. This court has no reason to question the jurisdiction of the English court to entertain the petition and to make the order appointing provisional liquidators. The authority of the provisional liquidators and the position they occupy , as well as the status of their appointment under English law, are accordingly recognised in this court as a matter of private international law and apart altogether from any order this court may make under s.581 of the Corporations Act 2001 (Cth) or otherwise." 70Those observations apply equally to the status, authority and powers of the Singapore liquidator in the present case. It makes no difference that the earlier case involved insolvency and this does not. 71In Re Independent Insurance Co Ltd (above), the court was asked to grant declaratory relief similar to that sought in these proceedings but declined to do so. As in the present case, the provisional liquidators approached the court ex parte and without any attempt to join a defendant or secure a contradictor. The reasons for the decision to refuse declaratory relief and the circumstances in which the decision to do so was made were stated at [21] to [23]: "The application is made in circumstances where no one is seen to question the existence of the English proceedings or the making or effect of the order appointing the provisional liquidators. The only conceivably relevant jurisdiction of this court is the aspect of its inherent jurisdiction referred to in s.75 of the Supreme Court Act 1970 which speaks of the power to make "binding declarations of right". That power is very wide. In Forster v Jododex Mines Pty Ltd (1972) 72 CLR 421 at p.435, Gibbs J said that: 'the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion.' The nature of the power was described by Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at pp.581-2 in these terms: 'It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".' [footnotes omitted] In the present case, the plaintiffs have a clear interest in seeing the English proceedings and the order of 17 June 2001 recognised by and acted upon by this court. But the declaration sought is, to my mind, one that will have no consequence. As I have said, no one is shown to question the status of the English proceedings, the English order or the English appointment. No controversy about any of those matters has been brought before the court. The only conceivable recipient of the message embodied in the declarations claimed would be the court itself, since recognition by it of the matters with which the declarations are concerned will found such further orders as it sees fit to make in aid of the English court. But there is no need for the court to make a declaration directed, in effect, to itself. It is sufficient that it record, as I have already done, its recognition of the presentation of the winding up petition on 17 June 2001, the pendency of the winding up application and the making and effect of the order appointing the provisional liquidators. In my opinion, therefore, the declarations, if made, would be of no utility." 72The position here is the same, in that the liquidator and CCP do not sue any defendant and there is no contradictor. The position is, at the same time, quite different in one important respect: Westpac has made it clear that it does not recognise the status and authority possessed by the liquidator in relation to CCP by virtue of the orders of the Singapore court; and that it will not do so unless and until it sees some appropriate form of confirmation of those matters by an Australian court. 73In those circumstances, I am satisfied that, bearing in mind that the winding up is, under the Singapore Companies Act , a winding up "by the Court", the specific statutory jurisdiction (and obligation) to "act in aid of" and to "be auxiliary to" the Singapore court will justify what would otherwise be the futile (and arguably procedurally flawed) step of making, upon the ex parte application of CCP and the liquidator, the declarations now sought. There will be utility in that step because it will, in a practical sense, arm the liquidator and CCP with the means of overcoming the obstacle they have encountered in their attempts to obtain access to Australian assets of CCP. And the irregularity of making a declaration in the absence of a contradictor is overborne by the statutory duty imposed by s 581(2)(a). 74The correspondence with Westpac raises a clear and strong expectation that Westpac will act on a declaration made by the court even though it is not a party to these proceedings. The removal of the obstacle standing between the liquidator and the assets under the control of Westpac will assist the liquidator appointed by the Singapore court to conduct the winding up and to bring it to a conclusion. 75The grant of the declaratory relief sought will therefore be of utility and will aid the effectuation of the Singapore court's orders. Section 581(2)(a) therefore requires that the relief be granted.

A non-statutory possibility 76I would add that it may be open to the court to grant the declaratory relief sought by CCP and the liquidator without reference to any statutory foundation under s 581(2)(a) of the Corporations Act . 77The absence of a defendant or contradictor may not preclude the making of a declaration if there is some good reason for the court to state some legal proposition of utility: see, for example, Guaranty Trust Company of New York v Hannay & Co [1915] 2 KB 536 at 564; Byrne v Herbert [1966] 2 QB 121; Re AFG Insurances Ltd [2002] NSWSC 844; (2002) 43 ACSR 60 at [5] ; Epic Energy (WA) Nominees Pty Ltd v Michael [2003] WASC 156; (2003) 27 WAR 515 at [20]; Re Founding Partners Global Fund Ltd [2009] SC (Bda) 36 Com; Re Kingate Global Fund Ltd [2011] SC (Bda) 2 Com. 78Notions of comity that have, in recent years, facilitated recognition and effectuation of foreign insolvency administrations by the deployment of the local court's inherent jurisdiction (see, for example, Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 262; [2007] 1 AC 508; Re HIH Casualty and General Insurance Ltd; McGrath v Riddell [2008] UKHL 21; [2008] 1 WLR 852; Re Founding Partners Global Fund Ltd (above); Re Kingate Global Fund Ltd (above)) are not necessarily confined to cases of insolvency: Re Cavell Insurance Co (2006) 269 DLR (4 th ) 679. 79Given the statutory basis that exists in this case, however, there is no need to express any concluded view on whether the inherent jurisdiction alone would have supported the making of the declarations sought.

Disposition 80The court will, pursuant to s 581(2)(a) of the Corporations Act , make the declarations sought by CCP and its liquidator.

Amendments 01 September 2011 - Parties Details - 'Second Defendant' changed to 'Second Plaintiff' Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2011

(UK) Bankruptcy Act 1966(Cth)

(Cap 50) (Singapore) Corporations Act 2001(Cth)

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