Unfair preference by companies

The subject of unfair preference by insolvent companies under Singapore law is complex and abstruse. There are two reasons for this. The legal position can only be ascertained by the careful reading and juxtaposing of three different pieces of legislation: the Companies Act (s.329); the Bankruptcy Act (s.99 to s.102) and the Companies (Application of Bankruptcy Act Provisions) Regulations (the ‘Regulations’). The definition of persons who might be considered as being ‘connected with’ the company is broad and intricate.

The aim of this article is to guide readers through the labyrinth of provisions and provide a good overview of the law in this area.

Interplay of legislative provisions
The starting point is s.329 of the Companies Act. This section provides that any payment, transfer of property or other act relating to property which would be void or voidable, as against an individual under, inter alia, s.99 of the Bankruptcy Act, is void or voidable in the same manner in the winding-up of a company. Section 99 deals with unfair preference. Section 329 therefore borrows a provision from the Bankruptcy Act to deal with unfair preference by an insolvent company.

Section 99 and s.100 of the Bankruptcy Act state the key elements of unfair preference, while s.101 details definitions of who may be regarded as ‘associates’ of an individual. Section 102 deals with the orders that a court may make.

The purpose of the ‘Regulations’ is to clarify how the Bankruptcy Act provisions apply to companies by:

• giving the general guideline that Bankruptcy Act provisions apply to companies with the necessary textual modifications
• providing additional definitions of certain terms
• laying down additional legal rules.

The key aspects and issues of unfair preference by a company in the context of the three pieces of legislation are as follows.

The proscribed conduct
The general principle here is that if a company being wound up has given unfair preference to any person, the liquidator of the company may apply to the court for an order to restore the position (s.99(1) Bankruptcy Act). The following scenarios illustrate unfair preference:

1. The company does something, the act, which has the effect of putting the creditor in a better position in the event of the winding-up of the company.
2. The decision to do the act was influenced by the company’s desire to put that creditor in the better position.
3. The company was ‘insolvent’ at the time of, or as a result of, the act.
4. The act was done within six months before the commencement of the winding-up of the company or, if done in relation to a person ‘connected with’ the company, within two years.

Better position
Unfair preference is described as doing something that puts a creditor in a better position in the event of the company’s winding-up. The implication is clear. The creditor need not prove they have been paid earlier in the subsequent winding-up, avoiding the prospect of receiving little or no payment. This is a common experience in a winding-up, since there is usually little money left after the statutorily preferred creditors (s.328 Companies Act) are paid.

The provision also requires culpability on the part of the company in that the act must be motivated to some degree by an intention to give preference. The exact words used are ‘influenced by a desire to produce… the effect’ (s.99(4)). This is a significant shift from the previous provision1 which used the words ‘with a view to giving… a preference’. Case law had interpreted ‘with a view’ to mean with the intention or object, and that such intention should have been the principal or dominant intention2. The current requirement ‘influenced by the desire’ is a much lower threshold than dominant intention. The test appears to be whether the act (e.g. payment) was influenced by the desire to prefer or whether it was decided on a purely commercial basis.

Insolvency
It is clear from s.100(2) that the desire to prefer and the effect of giving preference are insufficient to constitute the conduct which the provisions seek to proscribe. Additionally, the company must be insolvent at the time of the act or as a consequence. ‘Insolvency’ is defined as either the inability to pay debts as they fall due or a situation where the amount of the liabilities (including contingent and prospective liabilities) exceeds the value of the assets: s.100(4). Unfair preference by a company, therefore, occurs when the company does an act with the desire and the effect of giving preference to a creditor, and the act was done while the company was insolvent or the act resulted in the company being insolvent.

Catchment period
The provisions set out two different catchment periods – six months and two years respectively, from the commencement of winding-up. The shorter period is for creditors in general while the longer period is for creditors who are ‘connected with’ the company (s.100(1)(b), read with Regulation 4). The rationale for a longer, thus earlier, period is probably that preference usually begins with those creditors who are closer to the company before moving to other creditors.

Connected persons
Section 101 is complex. It deals with the relationships between the bankrupt individual and those whom the law deems are close to him and therefore likely to be favoured by him. The term used is ‘associates’. The long list of persons who are considered associates of a bankrupt includes the following:

• spouse, including former spouse
• relatives, which comprise: siblings; uncles and aunts; nephews and nieces; lineal ancestors (presumably, it means parents, grandparents and other ancestors of direct lineage) lineal descendants (children, grandchildren and other direct descendants)
• partner in a partnership
• employer
• employee
• director or other officer in the company where he is employed
• trustee of a trust in which he is a beneficiary and
• company of which the bankrupt, or the bankrupt and his associates, had control of.

Two qualifications are used to ascertain relationships, half-blood relationships are included, and so are step-children, adopted children and illegitimate children: s.101(7). As for companies, a bankrupt is taken to have had control of a company if the directors of a company (or of another company having control of it) are accustomed to act in accordance with his directions or instructions; or if the bankrupt had one-third or more of the voting power of the company (or of another company having control of it): s.101(9). In this regard, control is therefore either at board level or shareholder level.

However, in applying the unfair preference provisions to companies, Regulation 4 states that references to an ‘associate’ of an individual should be read as a reference to a ‘person connected with a company’, except in s.101. Regulation 2 provides its own definition of a ‘person connected with a company’, namely:

• a director
• a shadow director (s.149(8) of the Companies Act)
• an associate (s.101 Bankruptcy Act, as modified by Regulation 5) of a director or shadow director
  and
• an associate of the company (Regulation 5).

Firstly, the definitions of ‘associate’ in s.101, which are outlined above, are relevant to unfair preference by companies. A preference given to a relative of a director, for example, would amount to a preference to a ‘person connected with a company’.

Secondly, Regulation 5 introduces another category of associates – an associate of a company. Regulation 5 provides that a company shall be an associate of another company if:

• the same person controls both companies
• a person controls one company and his associates, or he and his associates, control the other company
  or
• a group of persons or their associates control both companies.

An associate of a company is therefore a company which is connected by the element of common control.

Viewed as a whole, the picture which now emerges is an elaborate labyrinth of relationships and connections. Depending on the relationship of the particular creditor with the company or its directors, the ascertainment of whether the transaction is caught by the provisions can be a Herculean task. The principle of the matter, however, is simple enough. A company should not give preference to individuals connected to its directors; neither should it give preference to a company connected to it by reason of being controlled by the same person(s).

Presumed influence
The longer period of catchment for persons connected with the company are outlined above. There is another legal implication where the creditor is connected with the company. Section 99(4) (read with Regulation 4) provides that where a company has given a preference to a creditor connected with the company, the company shall be presumed, unless the contrary is shown, to have been influenced by the desire to prefer. This effectively reverses the burden of proof – instead of the liquidator having to show influence, the burden now rests on the connected person to show that there was no influence. In practical terms, the difference is very significant.

Conclusion
The provisions surrounding unfair preference by companies can be confusing. However, upon careful reading and analysis, one can arrive at a clear framework of rules on the subject.

Basically, s.329 of the Companies Act borrows from s.99 to s.102 of the Bankruptcy Act while the ‘Regulations’ elaborate on how the bankruptcy sections are to be modified to suit companies; a roundabout process which is less than ideal. Central to this modification is the use of the term ‘person connected with the company’ in place of the term ‘associate’. The objective is to spell out situations where a creditor company is regarded as being an associate of a company. Yet, at the same time, the s.101 definitions of associates of an individual are retained through the inclusion of the associates of directors in Regulation 2’s definition of ‘person connected with a company’.

The essence of unfair preference is putting a creditor in a better position, financially, in the event the company is wound-up. A key element of the current provisions is that the company is ‘influenced by the desire’ to put the creditor in a better position. Of critical significance is the fact that where the preference is to a connected person, the influence is presumed and the catchment period is longer. Another important element is that the company was insolvent when making the preference or as a result of making the preference.

References

1. Section 53 of the old Bankruptcy Act (Cap20).
2. See e.g. Ho Mun-Tuke Don v. Oslo Finans [1990] 3 MLJ 84 and Lin Securities v. Royal Trust Merchant Bank (Asia) [1995] 1 SLR 97.

Dr Low Kee Yang is Examiner for Paper 2.2 (SGP)