I have decided to filter away all my legal-related blog posts to another blog. It is easily found at leeshih.com and where it will focus on corporate law and other law posts.
Do go visit it as all future law-related updates will go over there instead.
I had been looking forward to reading the Singapore Court of Appeal grounds for its landmark decision relating to the TT International case decision. The grounds were obtained from Singapore Law Watch.
As both Singapore and Malaysia do not have guidelines or Practice Directions (unlike in the UK) to guide the schemes of arrangement process, the development of procedures through common law is extremely important. The TTInternational decision analysed the sometimes different approaches in Australia and the UK and the decision touched on classification of creditors, in particular the vexed question of how to deal with the votes of related creditors or wholly owned subsidiaries, the fiduciary duties owed by scheme managers and how to deal with the proof of debt process in a scheme.
The issues before the Singapore Court of Appeal were:
when a proposed scheme manager might be placed in a position of a conflict of interest;
whether scheme creditors are entitled to examine the proofs of debt submitted by other scheme creditors in respect of a proposed scheme;
when a scheme creditor should be notified of the chairman’s decisions to admit or reject its own and other creditors’ proofs of debt;
whether a scheme creditor may appeal the chairman’s decisions to admit or reject its own and other creditors’ proofs of debt;
whether the chairman’s decisions to admit or reject certain proofs of debt for the purpose of voting, in this case, were correct;
when scheme creditors should be classified differently for voting purposes in a s 210 scheme of arrangement; and
when scheme creditors should have their votes discounted.
The Court of Appeal's answers were:
a proposed scheme manager is in a position of conflict of interest when he without good reason aligns his interests with those of the company, such as in this case, where the proposed Scheme Manager was the nominee for the individual voluntary arrangements (“the IVAs”) filed by Mr Sng and Ms Tong (see [74]–[78] of the decision);
yes, scheme creditors are entitled to examine the proofs of debt submitted by other scheme creditors in respect of a proposed scheme (see [79]–[93]);
a scheme creditor should be notified of the chairman’s decisions to admit or reject its own and other creditors’ proofs of debt before the votes are cast at the creditors’ meeting (see [94]–[99] );
yes, a scheme creditor may appeal the chairman’s decisions to admit or reject its own and other creditors’ proofs of debt (see [100]–[110]);
the proposed Scheme Manager’s decisions to partially reject Ho Lee’s proof of debt (to the extent that he did) and wholly admit St George Bank’s, Ascendas’ and First Capital’s proofs of debt for the purpose of voting were incorrect (see [111]–[129]);
scheme creditors should be classified differently for voting purposes when their rights are so dissimilar to each other’s that they cannot sensibly consult together with a view to their common interest (see [130]–[151]);
related party creditors should have their votes discounted in light of their special interests to support a proposed scheme, by virtue of their relationship to the company; wholly owned subsidiaries should have their votes discounted to zero and are effectively classified separately from the general class of unsecured creditors (see [152]–[171]).
It is a real pity that the law relating to schemes of arrangement is so underdeveloped in Malaysia. I still see too much of abuse of the restraining order in the Courts, a lack of sufficient understanding of the impact of schemes of arrangement, insufficient judicial safeguards of ensuring transparency and full disclosure in such schemes and with Courts not receiving enough guidance through reported decisions.
The Court of Appeal in American International Assurance Bhd v Coordinated Services L Sdn Bhd [2012] 1 MLJ 369 had the opportunity to clarify the limits of a stay of winding up Order. In my earlier post on Unwinding a Winding Up, I had highlighted the differences between a stay and a setting aside of a winding up Order and the great difficulty in arguing that a winding up Order can be set aside.
As a brief summary of the facts of this AIA case, subsequent to the windingup of the Respondent company, a director of the company had obtained and renewed a fire insurance policy with AIA. It was not obtained by the liquidator. When a claim was later made on the policy, AIA discovered that the company had been wound up and repudiated the policy. The company then successfully obtained before the High Court an Order under section 243 of the Companies Act 1965 for a permanent stay of the windingup and, which is relevant for this commentary, a validation of all dealings and agreements from the date of windingup until the date of the stay Order.
The Court of Appeal did not disturb the first limb of the Order allowing the permanent stay. However, for the second limb, the Court of Appeal held that the Court had no jurisdiction, whether under setion 243 or any other provision under the Companies Act 1965, to allow for such validation for the period post-windingup Order until the stay Order.
While the principles on the grant of a stay of a windingup Order are now quite settled, this case does confirm that the effects of a stay of a windingup can only take place upon the date of the stay being granted. There is no retrospective effect which would allow for the unwinding of a winding up so that the stay takes effect as if there was never any winding up. Any of the effects and repercussions of windingup would remain up until the date of the stay. This is unlike a setting aside of a Court Order where the Court Order would be deemed as never having been granted (and where in a lot of circumstances, one could then argue that the Order and any effects of the Order are reversed).
This decision highlights the difficulties under the present law where the Companies Act 1965 does not allow for a rescission or a setting aside of a winding up Order. While applicants may attempt roundabout ways of stretching applications of a section 243 stay or even a section 223 validation of disposition of properties, the present law does not appear to allow for the reversal of the effects of a winding up Order.
This video clip from Dragon Boat Innovate, a Singapore company run by a good friend of mine, offers a glimpse into the passion and sacrifice involved in dragon boating as it brings people together.
Dragon boating is more than a sport. It's a way of life.
It's been an absolutely hectic work week. I am so glad that the Chinese New Year holidays are here. I am very much looking forward to going back to Singapore tomorrow morning.
It will be the usual Tour de Malaysia for me, with me flying down to Singapore. Then, off to Johor Bahru for reunion, and then to Malacca for a few days, back to Singapore and then finally returning to Kuala Lumpur.
It's already 2012 but I do want to look back on 2011 on what I achieved in dragon boating, especially with the Year of the Water Dragon just around the corner with the Chinese New Year.
I think I can say that 2011 was the year where I made a real personal breakthrough in dragon boating. I managed to achieve several dreams I have had, I managed to grow as a paddler and a coach, and I managed to share my passion for dragon boating with a whole new group of people.
The year started out with the Skrine team, again facing a rebuilding process. A number of senior paddlers had left and we had an enthusiastic group of new paddlers joining the team. The team grew to a record number, with me having to often take out two boats out during training. The team significantly benefited through us getting a coach down from Singapore to come down for several workshops. While not cheap, it brought a lot more structure to the training and the types of drills we could do. I in turn benefited a lot in my role as pseudo-coach.
I would now have to coach the training sessions for the team and bring in elements such as videoing the paddlers, and then reviewing it with the team members. Incorporating specific drills to work on technique, or synchronisation or endurance.
This then brought us to our first competition for the year, on Sunday 29 May 2011, at the Ministry of Youth and Sports' Water Sports Festival in Putrajaya. This was held in conjunction with the One Million Youth Gathering
We fielded two boats, one being the Men's boat and the other the Women's boat. We were training up new steerers for this season and we needed to get female steerers to allow them to steer for the Women's races in the competitions ahead. So this race was going to be a very good warm-up event. The Men's boat went off-course slightly during the race which put us out of contention. I took over the steering for the Women's race and we advanced from the heats in the morning and made it into the 6-boat finals.
In the finals, the Skrine Dragons secured fifth position, narrowly missing out on fourth place by just 0.3 seconds. The team had great fun at the competition and secured a cash prize for our fifth place finish.
With our first competition comfortably tucked under our belt, we were then off to a major competition at the Penang International Dragon Boat Festival on 11 and 12 June 2011.
It was a trip filled with a lot of eating, a lot of paddling and a lot of fun. It was by far the hardest competition I had ever taken part in. There were top-level international teams at the race, with a few national teams using the event as a warm up for the SEA Games. Quite a sight seeing those teams from Indonesia and Singapore in action.
As I arrived back from the Penang competition (where we got our butts soundly kicked and we ended up last in almost all our races), it was then time for me to hold the first-ever dragon boating introductory workshop for the KL Bar.
It's always been one of my dreams to try to promote dragon boating to the Bar. I imagine law firms and other lawyers getting hooked on dragon boating like I am. So on Saturday 18 June 2011, I held the "How to Paddle a Dragon" workshop. I wouldn't have guessed it then, but that workshop was the start of something very special with the beginnings of the KLBar-barians team. But more on that later.
A write-up on the introductory workshop can be seen here. Managed to train up complete newcomers in the course of one session and from then on, we started holding regular training sessions for the newly-formed KL Bar dragon boat team.
By this time, I had to conduct training sessions on both Saturday and Sunday. On Saturday would be the regular training sessions with the Skrine Dragons while on Sunday, I would be training the KL Bar team.
It was also time for me to embark on my next project. It was yet another dream of mine that I had been having for several years now. For the firm to stage a dragon boat competition and to promote it to our clients. It would help to promote dragon boating to the corporate community, share with our clients the teamwork and camaraderie that can be achieved through dragon boating while also promoting a charitable cause.
It was time for the inaugural Skrine Regatta: Paddling for Charity. I generated a trailer to promote the event to the potential participants:
Come 1 October 2011, it was then time for the staging of the Skrine Regatta. A team of five corporate teams would join arms that day, paddle together, all for charity. In the lead up to the race, training sessions were organised to allow the new teams to master the basics of paddling and to experience first-hand the bonds that are built on and off the boat.
With the help of so many of the organising committee members, the Skrine Regatta was successful beyond my wildest dreams. Every detail was more or less executed according to plan and everyone, from the paddlers to the supporters, enjoyed themselves that day.
This video of all the pictures taken that day which just about captures the excitement of months of preparation, the setting up on the day, the giving of the cheque to our adopted charity, the eye dotting ceremony to breath life into the dragons, the heats, repechage and the Grand Finals.
In the end, we were narrowly beaten in the Grand Finals although the results itself was not so important.
Barely a few weeks after the Skrine Regatta on 1 October 2011, the team had to already focus on the Malaysia International Dragon Boat Festival on 21 - 23 October 2011. By this stage, two of my teams had already been training hard for this competition. The Skrine Dragons as well as the newly-dubbed KLBar-barians dragon boat team.
With the trainings leading to the competition, I guess I went through a period of frustration and a bit of disappointment. With low attendance and with the lack of a full boat practicing out on the water, it did not bode well for preparation for the competition. In part, we had never experienced such a long competition season before. We would normally train hard for 3 - 4 months, finish off with one competition and then go back to our ordinary lives. It was difficult to ask for more of the dedication and sacrifice.
But at the same time, it was a real pleasure to see how new team members had grown and gotten stronger. Newcomers to dragon boating had now become so passionate for the sport. It was humbling for me to play some small part in that process.
The competition weekend proved to be exciting. Three days of intense racing and with me helping out on two teams.
For the KLBar-barians, they met my secret ambitions for them to clinch 1st place for the Beginners race. They executed the race strategy perfectly, they pulled ahead quite quickly at the starts and then just powered to the finish. I steered for that race and I could feel the pulse of the boat as it charged across the water.
Even for the other races, and this being the team's first ever competition, great timings were set for all the events.
Amid all the racing, I also juggled sitting for the IDBF Race Officials Grade 1 certification and I managed to get myself certified. This will allow me to officiate at future international races (which I am already planning to do for this year).
For the Skrine Dragons, we finished off the competition with our best-ever haul at any competition, walking away with two Bronze medals in the Malaysia Inter-Corporate Mixed-12 category and the International Corporate Mixed-22 category. Safe to say, I was one very proud coach of both the teams for all the results and for seeing the hard work paying off.
The year was still not quite over in terms of dragon boating. I had been in contact with the coach of the MMU dragon boat team and organised a little dragon boat trip for paddlers from both the Skrine Dragons and KL Bar to head down to Malacca for a weekend training and race session with the MMU team.
The MMU team was a very strong dragon boat team and I had seen their good results at previous competitions. It was going to be a good trip to help my paddlers take a trip together, experience training in a different environment and then to pace themselves with a strong team.
We headed down the weekend of the 3 - 4 December 2011 where we put up at Kings Hotel in Ayer Keroh as we would be using the MMU boats at the Ayer Keroh lake nearby.
Training was definitely interesting with us having to get used to more 'old-school' type boats as well as the different lake environment. The Ayer Keroh lake was sandwiched between the gold course and the zoo which made for quite beautiful surroundings. We squeezed in a light Saturday afternoon session, having already stuffed ourselves with chicken rice balls for lunch. It was then off to the Portuguese Settlement for dinner and then an early lights out.
The next morning, we then headed back to Ayer Keroh lake for the start of our friendly races. It was an informal event, with MMU loaning us paddlers here and there to make up the numbers. On the spot, we then discussed what races to run. We started off with a 700m race in a triangle route round buoys, then a straight up sprint race between the Men's boat and then the Women's boat, and finally a dragon boat tug of war.
We, being a combination of paddlers from both Skrine and KL Bar, pretty much lost the races but had a lot of fun in doing so. The long distance race was something different for a lot of the paddlers and also showed us how we had not been training for any of the longer distance races. The sprints were a close affair and then the highlight of the day was the agony of the tug of war.
Each pull of the stroke was extremely heavy and even after a few seconds of tugging away, the paddlers were exhausted. The dragon boat tug of war should definitely be brought to Putrajaya as an event as well.
In the end, everyone made a lot of new friends that day. Paddlers sharing a common love for the sport. I am sure it's only the first of many exchanges and trips for all the teams involved that day. A big thanks to MMU for hosting us that weekend and even preparing a whole lunch spread after the race. We can't wait to reciprocate the hospitality.
So that, in a nutshell, captures snapshots of the 2011 dragon boating year. Dragon boating is still going on even in this new year with a lot of plans in the pipeline. Can't wait to see what this new year has in store.
I had earlier blogged about the dire conflict facing Liquidators arising from the Court of Appeal decision of Dato' See Teow Chuan. The reported Court of Appeal decision can be read at [2010] 6 MLJ 459 and I had pointed out the grave implications arising from the Court of Appeal decision relating to Liquidators, Receivers (and Managers) and auditors.
This Court of Appeal decision had proceeded to the Federal Court and based on this Bursa announcement, the Federal Court had allowed the Liquidators' appeal.
It will be very interesting to read the Federal Court's written grounds of judgment. I expect that the reasoning set out in the High Court decision (See Teow Guan & Ors v Kian Joo Holdings Sdn Bhd & Ors [2010] 1 MLJ 547) would be reinstated.
Last week, I contributed an article to the Star's Putik Lada column.It is a bi-weekly column of the Bar's National Young Lawyers Committee featuring articles and viewpoints of young lawyers from across the country.
I wanted to share how important it is to have passion for what you do. Hopefully the message still comes across whether you are in legal practice or just working in general.
A passion that keeps them in practice
Legal practice is never boring. The law is ever-evolving. It forces you to keep learning the latest legal developments as well as to update yourself on the current affairs in the relevant industries.
A FEW months ago, I was moderating a session at the Young Lawyers Convention 2011 on the working conditions of young lawyers.
With me were three Speakers with different levels of seniority at the Bar.
In that session, questions were posed by various lawyers highlighting their perspective on the practice and concerns on issues such as long working hours and low pay.
Midway through that lively discussion, a question was posed to the four of us on what motivated us to still stay on in practice.
The first Speaker spoke of the thrill of litigation and being up on his feet in court.
He described that feeling as almost intoxicating and that continued to spur him on in practice.
Another Speaker shared his perspective on how he enjoyed being able to manage a matter from start to finish and he enjoyed the sense of satisfaction in being able to assist his client on legal matters.
The third Speaker talked of enjoying the intellectual challenge of practising law and the joy of still read- ing and learning the law.
I then spoke on how I could relate to each and every aspect highlighted by the Speakers.
I expanded on my personal experience which I will share in this article.
Firstly, I touched on how I had ended up doing law.
Unlike a number of lawyers I know, I never had a deep yearning to study law when I was in secondary school or college.
Without quite knowing what I should study in university, I settled for doing a law degree since I thought it would give me a good foundation to go into other fields if I wished to.
While doing my law degree, I enjoyed studying the subjects but my desire to become a lawyer only crystalised when I sat for the English Bar.
With the Bar’s practical training, I then knew I wanted to be a litigator as I wanted to put forward arguments in court.
When I returned to Kuala Lumpur, I sought out a pupillage position to do litigation. I ended up starting my legal career at a law firm which was a very good fit for me.
By chance, I ended up practising litigation in an area of law – that of company law – which I had no knowledge of at the beginning.
But it has since become a subject I am very interested in and passionate about.
Legal practice is not easy. Similar to the experiences shared by the other lawyers at that working conditions session, I have gone through periods of late nights and working on weekends which are almost de regiueur in the legal profession.
I have been frustrated with the delay in court proceedings and I have also many times felt aggrieved about low salaries.
However, a lot of that frustration melts away once I set foot in the courtroom.
All the long hours somehow pay off when I am able to put forward my legal arguments in court or when I am on my feet cross-examining a key witness at a trial.
There is an adrenaline rush of submitting in court and that sense of satisfaction of having argued a good case.
Legal practice is never boring. The law is ever-evolving. It forces you to keep learning the latest legal developments as well as to update yourself on the current affairs in the relevant industries.
What I shared with the audience that day was that if they were unable to relate to any of the narratives shared by the speakers and I on why we were still in practice, then it may be a sign that some form of change is needed.
Maybe a change in the law firm they are working in, perhaps a move into setting up their own law practice or even a switch in the area of law they were practising.
Without passion for what you are doing, it is difficult to soldier on in practice since the profession demands so much out of you.
Long hours are a necessity in order to hone our skills and irregular working hours are the norm since we are answerable to the demands of our client.
With a tinge of pessimism or realism (depending on how you look at it), legal practice in Malaysia is also not going to make you incredibly rich and I do not expect to draw an astronomically high pay.
So to last in the profession, I would think we need to enjoy what we are doing.
There is a saying that once you find a job you love, you will never work a day in your life.
This brings back into focus the question posed from the floor that day – Why am I still in practice?
It is because I am still passionate about the work I do.
