Provisions Applicable to
Every Mode of Winding Up |
| Books to be kept by liquidator and control of Court over liquidator |
60.—(1) Every liquidator must keep proper books in which he or she must cause to be made entries or minutes of proceedings at meetings and of such other matters as are prescribed, and any creditor or partner may, subject to the control of the Court, personally or by an agent inspect them.| (2) The Court is to take cognizance of the conduct of liquidators, and if a liquidator does not faithfully perform his or her duties and observe the prescribed requirements or the requirements of the Court or if any complaint is made to the Court by any creditor or partner or by the Official Receiver in regard to the liquidator’s conduct, the Court is to inquire into the matter and take any action that it thinks fit. |
| (3) The Registrar or the Official Receiver may report to the Court any matter which in his or her opinion is a misfeasance, neglect or omission on the part of the liquidator and the Court may order the liquidator to make good any loss which the estate of the limited liability partnership has sustained thereby and make any other order that the Court thinks fit. |
| (4) The Court may at any time require any liquidator to answer any inquiry in relation to the winding up and may examine him or her or any other person on oath concerning the winding up and may direct an investigation to be made of the books and vouchers of the liquidator. |
| (5) The Court may require any partner, trustee, receiver, banker, agent or officer of the limited liability partnership to pay, deliver, convey, surrender or transfer to the liquidator or provisional liquidator immediately or within such time as the Court directs any money, property, books and papers in his, her or its hands to which the limited liability partnership is prima facie entitled. |
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| Powers of Official Receiver where no committee of inspection |
61.—(1) Where a person other than the Official Receiver is the liquidator and there is no committee of inspection, the Official Receiver may, on the application of the liquidator, do any act or thing or give any direction or permission which is by this Act authorised or required to be done or given by the committee.| (2) Where the Official Receiver is the liquidator and there is no committee of inspection, the Official Receiver may do any act or thing which is by this Act required to be done by, or subject to any direction or permission given by, the committee. |
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| Appeal against decision of liquidator |
| 62. Any person aggrieved by any act or decision of the liquidator may apply to the Court which may confirm, reverse or modify the act or decision complained of and make such order as the Court thinks just. |
| Notice of appointment and address of liquidator |
63.—(1) A liquidator must, within 14 days after his or her appointment, lodge with the Registrar and with the Official Receiver notice in the prescribed form of the appointment and of the address of the office and in the event of any change in the address of the office must within 14 days after the change lodge with the Registrar and with the Official Receiver notice in the prescribed form of the change.| (2) Service made by leaving any document at or sending it by post addressed to the address of the office of the liquidator given in any such notice lodged with the Registrar is deemed to be good service upon the liquidator and upon the limited liability partnership. |
| (3) A liquidator must, within 14 days after his or her resignation or removal from office, lodge with the Registrar and with the Official Receiver notice thereof in the prescribed form. |
| (4) If a liquidator contravenes this paragraph, he or she shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part of a day during which the offence continues after conviction. |
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64.—(1) Every liquidator must, within one month after the end of 6 months from the date of his or her appointment and of every subsequent period of 6 months and in any case within one month after he or she ceases to act as liquidator and immediately after obtaining an order of release, lodge with the Official Receiver in the prescribed form and verified by statutory declaration an account of his or her receipts and payments and a statement of the position in the winding up, and any liquidator who fails to do so shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part of a day during which the offence continues after conviction.| (2) The liquidator must also lodge with the Registrar a notice in the prescribed form of the matters referred to in sub‑paragraph (1) and, if he or she fails to do so, he or she shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part of a day during which the offence continues after conviction. |
| (3) The Official Receiver may cause the account of any liquidation to be audited by a public accountant, and for the purpose of the audit the liquidator must provide the public accountant with such vouchers and information as the public accountant requires, and the public accountant may at any time require the production of and inspect any books or accounts kept by the liquidator. |
| (4) A copy of the account or, if audited, a copy of the audited account must be kept by the liquidator and the copy is open to the inspection of any creditor or of any person interested at the liquidator’s office. |
(5) The liquidator must —| (a) | give notice that the account has been made up to every creditor and partner when next forwarding any report, notice of meeting, notice of call or dividend; and | | (b) | in the notice inform the creditors and partners at what address and between what hours the account may be inspected. |
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| (6) The costs of an audit under this paragraph are to be fixed by the Official Receiver and are part of the expenses of winding up. |
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| Liquidator to make good defaults |
65.—(1) If any liquidator who has made any default in lodging or making any application, return, account or other document, or in giving any notice which he or she is by law required to lodge, make or give, fails to make good the default within 14 days after the service on him or her of a notice requiring him or her to do so, the Court may, on the application of any partner or creditor of the limited liability partnership or the Official Receiver, make an order directing the liquidator to make good the default within the time specified in the order.| (2) Any order made under sub-paragraph (1) may provide that all costs of and incidental to the application must be borne by the liquidator. |
| (3) Nothing in sub-paragraph (1) prejudices the operation of any written law imposing penalties on a liquidator in respect of any such default. |
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| Notification that a limited liability partnership is in liquidation |
66.—(1) Where a limited liability partnership is being wound up, every invoice, order for goods or business letter issued by or on behalf of the limited liability partnership or a liquidator of the limited liability partnership or a receiver or manager of the property of the limited liability partnership, being a document on or in which the name of the limited liability partnership appears, must have the words “in liquidation” added after the name of the limited liability partnership where it first appears in the document.| (2) If sub-paragraph (1) is contravened, the limited liability partnership, and every officer of the limited liability partnership or liquidator and every receiver or manager who knowingly and wilfully authorises or permits the default, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $400. |
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| Books of limited liability partnership |
67.—(1) Where a limited liability partnership is being wound up, all books and papers of the limited liability partnership and of the liquidator that are relevant to the affairs of the limited liability partnership at or subsequent to the commencement of the winding up of the limited liability partnership are, as between the partners of the limited liability partnership, prima facie evidence of the truth of all matters purporting to be recorded in them.| (2) When a limited liability partnership has been wound up the liquidator must retain the books and papers referred to in sub-paragraph (1) for a period of 5 years from the date of dissolution of the limited liability partnership and at the end of that period may destroy them. |
| (3) Despite sub-paragraph (2), when a limited liability partnership has been wound up, the books and papers mentioned in sub‑paragraph (1) may be destroyed within 5 years after the dissolution of the limited liability partnership in the case of a winding up by the Court, in accordance with the directions of the Court. |
| (4) No responsibility rests on the limited liability partnership or the liquidator by reason of any such book or paper not being forthcoming to any person claiming to be interested in it if such book or paper has been destroyed in accordance with this paragraph. |
| (5) Any person who contravenes sub-paragraph (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000. |
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| Investment of surplus funds on general account |
68.—(1) Whenever the cash balance standing to the credit of any limited liability partnership in liquidation is in excess of the amount which, in the opinion of the committee of inspection, or, if there is no committee of inspection, of the liquidator, is required for the time being to answer demands in respect of the estate of the limited liability partnership, the liquidator, if so directed in writing by the committee of inspection, or, if there is no committee of inspection, the liquidator himself or herself, may, unless the Court on application by any creditor thinks fit to direct otherwise and so orders, invest the sum or any part of the investment or deposit in securities issued by the Government of Singapore or of Malaysia or place it on deposit at interest with any bank, and any interest received in respect of the investment or deposit forms part of the assets of the limited liability partnership.| (2) Whenever any part of the money so invested is, in the opinion of the committee of inspection, or, if there is no committee of inspection, of the liquidator, required to answer any demands in respect of the limited liability partnership’s estate, the committee of inspection may direct, or, if there is no committee of inspection, the liquidator may arrange for, the sale or realisation of such part of those securities as is necessary. |
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| Unclaimed assets to be paid to Official Receiver |
69.—(1) Where a liquidator has in his or her hands or under his or her control —| (a) | any unclaimed dividend or other moneys which have remained unclaimed for more than 6 months from the date when the dividend or other moneys became payable; or | | (b) | after making final distribution, any unclaimed or undistributed moneys arising from the property of the limited liability partnership, |
| he or she must immediately pay those moneys to the Official Receiver to be placed to the credit of the Limited Liability Partnerships Liquidation Account (called in this paragraph the liquidation account) and is entitled to the prescribed certificate of receipt for the moneys so paid and that certificate is an effectual discharge to him or her in respect of the moneys. |
| (2) The Court may, at any time on the application of the Official Receiver, order any liquidator to submit to it an account of any unclaimed or undistributed funds, dividends or other moneys in his or her hands or under his or her control verified by affidavit and may direct an audit thereof and may direct him or her to pay those moneys to the Official Receiver to be placed to the credit of the liquidation account. |
| (3) The interest arising from the investment of the moneys standing to the credit of the liquidation account must be paid into the Consolidated Fund. |
| (4) For the purposes of this paragraph, the Court may exercise all the powers conferred by this Act with respect to the discovery and realisation of the property of the limited liability partnership and the provisions of this Act with respect thereto apply with such adaptations as are prescribed to proceedings under this paragraph. |
| (5) This paragraph does not, except as expressly declared in this Act, deprive any person of any other right or remedy to which the person is entitled against the liquidator or any other person. |
| (6) If any claimant makes any demand for any money placed to the credit of the liquidation account, the Official Receiver upon being satisfied that the claimant is the owner of the money must authorise payment of the money to be made to the claimant out of that account or, if it has been paid into the Consolidated Fund, may authorise payment of the same amount to be made to the claimant out of moneys made available by Parliament for the purpose. |
| (7) Any person dissatisfied with the decision of the Official Receiver in respect of a claim made pursuant to sub‑paragraph (6) may appeal to the Court which may confirm, disallow or vary the decision. |
| (8) Where any unclaimed moneys paid to any claimant are afterwards claimed by any other person, that other person is not entitled to any payment out of the liquidation account or out of the Consolidated Fund but such person may have recourse against the claimant to whom the unclaimed moneys have been paid. |
| (9) Any unclaimed moneys paid to the credit of the liquidation account to the extent to which the unclaimed moneys have not been under this paragraph paid out of that account must, on the lapse of 7 years from the date of the payment of the moneys to the credit of that account, be paid into the Consolidated Fund. |
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| Outstanding assets of limited liability partnership wound up on grounds of national security or interest |
| 70. Despite any written law or rule of law to the contrary, upon a limited liability partnership being wound up under paragraph 3(1)(f) on the ground that it is being used for purposes against national security or interest, the Court may, on the application of the Minister, order that any assets of the limited liability partnership remaining after payment of its debts and liabilities and the costs, charges and expenses of the winding up must be paid into the Consolidated Fund. |
| Expenses of winding up where assets insufficient |
71.—(1) Unless expressly directed to do so by the Official Receiver, a liquidator is not liable to incur any expense in relation to the winding up of a limited liability partnership unless there are sufficient available assets.| (2) The Official Receiver may, on the application of a creditor or a partner, direct a liquidator to incur a particular expense on condition that the creditor or partner indemnifies the liquidator in respect of the recovery of the amount expended and, if the Official Receiver so directs, gives such security to secure the amount of the indemnity as the Official Receiver thinks reasonable. |
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| Resolutions passed at adjourned meetings of creditors and partners |
| 72. Subject to paragraph 43(9), where a resolution is passed at an adjourned meeting of any creditors or partners of a limited liability partnership, the resolution is for all purposes treated as having been passed on the date on which it was in fact passed and not on any earlier date. |
| Meetings to ascertain wishes of creditors or partners |
73.—(1) The Court may, as to all matters relating to the winding up of a limited liability partnership, have regard to the wishes of the creditors or partners as proved to it by any sufficient evidence, and may, if it thinks fit for the purpose of ascertaining those wishes, direct meetings of the creditors or partners to be called, held and conducted in such manner as the Court directs, and may appoint a person to act as chairperson of any such meeting and to report the result of the meeting to the Court.| (2) In the case of creditors, regard is to be had to the value of each creditor’s debt. |
| (3) In the case of partners, regard is to be had to the number of votes conferred on each partner by this Act or the limited liability partnership agreement. |
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| Special commission for receiving evidence |
74.—(1) District Judges are commissioners for the purpose of taking evidence under this Schedule, and the Court may refer the whole or any part of the examination of any witnesses under this Schedule to any person appointed as a commissioner.| (2) Every commissioner must, in addition to any powers which he or she might lawfully exercise as a District Judge, have in the matter so referred to him or her the same powers as the Court of summoning and examining witnesses, of requiring the production or delivery of documents, of punishing defaults by witnesses and of allowing costs and expenses to witnesses. |
| (3) Unless otherwise ordered by the Court, the taking of evidence by commissioners must be in open court and must be open to the public. |
| (4) The examination so taken must be returned or reported to the Court in such manner as the Court directs. |
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| Division 2 — Proof and ranking of claims |
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75.—(1) In every winding up all debts payable on a contingency, and all claims against the limited liability partnership, present or future, certain or contingent, ascertained or sounding only in damages, are admissible to proof against the limited liability partnership, a just estimate being made, so far as possible, of the value of such debts or claims as are subject to any contingency or sound only in damages, or for some other reason do not bear a certain value.| (2) Subject to paragraph 76, in the winding up of an insolvent limited liability partnership the same rules prevail and must be observed with regard to the respective rights of secured and unsecured creditors and debts provable and the valuation of annuities and future and contingent liabilities as are in force for the time being under the law relating to bankruptcy in relation to the estates of bankrupt persons, and all persons, who in any such case would be entitled to prove for and receive dividends out of the assets of the limited liability partnership, may come in under the winding up and make such claims against the limited liability partnership as they respectively are entitled to by virtue of this paragraph. |
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76.—(1) Subject to the provisions of this Act, in a winding up there must be paid in priority to all other unsecured debts —| (a) | first, the costs and expenses of the winding up including the taxed costs of the applicant for the winding up order payable under paragraph 5, the remuneration of the liquidator and the costs of any audit carried out pursuant to paragraph 64; | | (b) | second, subject to sub-paragraph (2), all wages or salary (whether or not earned wholly or in part by way of commission) including any amount payable by way of allowance or reimbursement under any contract of employment or award or agreement regulating conditions of employment of any employee; | | (c) | third, subject to sub-paragraph (2), the amount due to an employee as a retrenchment benefit or ex gratia payment under any contract of employment or award or agreement that regulates conditions of employment whether such amount becomes payable before, on or after the commencement of the winding up; | | (d) | fourth, all amounts due in respect of work injury compensation under the Work Injury Compensation Act 2019 or the Work Injury Compensation Act (Cap. 354, 2009 Revised Edition) repealed by that Act accrued before, on or after the commencement of the winding up; | | (e) | fifth, all amounts due in respect of contributions payable during the 12 months next before, on or after the commencement of the winding up by the limited liability partnership as the employer of any person under any written law relating to employees’ superannuation or provident funds or under any scheme of superannuation which is an approved scheme under the law relating to income tax; | | (f) | sixth, all remuneration payable to any employee in respect of vacation leave, or in the case of his or her death to any other person in the employee’s right, accrued in respect of any period before, on or after the commencement of the winding up; and | | (g) | seventh, the amount of all tax assessed and all goods and services tax due under any written law before the date of the commencement of the winding up or assessed at any time before the time fixed for the proving of debts has expired. |
(2) Subject to sub-paragraph (2A), the amount payable under sub‑paragraph (1)(b) and (c) must not exceed the lower of the following amounts for each employee:| (a) | 5 months’ salary (whether for time or piecework) in respect of services rendered by the employee to the limited liability partnership; | | (b) | $13,000, or an amount that is 5 times the amount (if any) prescribed by the Minister charged with the responsibility for manpower under section 35(b) of the Employment Act 1968, whichever is the higher. [Act 30 of 2024 wef 01/01/2025] |
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| (2A) Where the amounts in sub-paragraph (2)(a) and (b) are the same, the amount payable for each employee under sub‑paragraph (1)(b) and (c) is equal to either of those amounts. [Act 30 of 2024 wef 01/01/2025] |
| (3) The Minister may, by order in the Gazette, amend sub‑paragraph (2) by varying the amount specified in that sub-paragraph as the maximum amount payable under sub‑paragraph (1)(b) and (c). |
(4) In sub-paragraph (1)(b) and (c) —| “employee” means a person who has entered into or works under a contract of service with an employer and includes a subcontractor of labour; |
| “ex gratia payment” means the amount payable to an employee on the winding up of a limited liability partnership or on the termination of the employee’s service by his or her employer on the ground of redundancy or by reason of any reorganisation of the employer, profession, business, trade or work, and “the amount payable to an employee” for these purposes means the amount stipulated in any contract of employment, award or agreement, as the case may be; |
| “retrenchment benefit” means the amount payable to an employee on the winding up of a limited liability partnership or on the termination of the employee’s service by his or her employer on the ground of redundancy or by reason of any reorganisation of the employer, profession, business, trade or work, and “the amount payable to an employee” for these purposes means the amount stipulated in any contract of employment, award or agreement, as the case may be, or if no amount is stipulated in the contract, such amount as is stipulated by the Commissioner for Labour or by an Employment Claims Tribunal constituted under section 4 of the State Courts Act 1970. |
“wages or salary” is deemed to include —| (i) | all arrears of money due to a subcontractor of labour; | | (ii) | any amount payable to an employee on account of wages or salary during a period of notice of termination of employment or in lieu of such notice (as the case may be) whether the amount becomes payable before, on or after the commencement of the winding up; and | | (iii) | any amount payable to an employee, on termination of the employee’s employment, as a gratuity under any contract of employment, or under any award or agreement that regulates conditions of employment whether the amount becomes payable before, on or after the commencement of the winding up. |
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| (5) The debts in each class, specified in sub-paragraph (1), rank in the order therein specified but as between debts of the same class rank equally between themselves, and must be paid in full, unless the property of the limited liability partnership is insufficient to meet them, in which case they abate in equal proportions between themselves. |
| (6) Where any payment has been made to any employee of the limited liability partnership on account of wages, salary or vacation leave out of money advanced by a person for that purpose, the person by whom the money was advanced has, in a winding up, a right of priority in respect of the money so advanced and paid, up to the amount by which the sum in respect of which the employee would have been entitled to priority in the winding up has been diminished by reason of the payment, and has the same right of priority in respect of that amount as the employee would have had if the payment had not been made. |
| (7) So far as the assets of the limited liability partnership available for payment of general creditors are insufficient to meet any preferential debts specified in sub-paragraph (1)(a), (b), (c), (e) and (f) and any amount payable in priority by virtue of sub-paragraph (6), those debts have priority over the claims of the holders of debentures under any floating charge created by the limited liability partnership (which charge, as created, was a floating charge), and must be paid accordingly out of any property comprised in or subject to that charge. |
| (8) Where the limited liability partnership is under a contract of insurance (entered into before the commencement of the winding up) insured against liability to third parties, then if any such liability is incurred by the limited liability partnership (either before or after the commencement of the winding up) and an amount in respect of that liability is or has been received by the limited liability partnership or the liquidator from the insurer, the amount must, after deducting any expenses of or incidental to getting in that amount, be paid by the liquidator to the third party in respect of whom the liability was incurred to the extent necessary to discharge that liability or any part of that liability remaining undischarged in priority to all payments in respect of the debts referred to in sub‑paragraph (1). |
| (9) If the liability of the insurer to the limited liability partnership is less than the liability of the limited liability partnership to the third party, nothing in sub‑paragraph (8) limits the rights of the third party in respect of the balance. |
(10) Despite anything in sub-paragraph (1) —| (a) | sub-paragraph (1)(d) does not apply in relation to the winding up of a limited liability partnership in any case where the limited liability partnership is being wound up voluntarily merely for the purpose of reconstruction or of amalgamation with another limited liability partnership and the right to the compensation has on the reconstruction or amalgamation been preserved to the person entitled to it, or where the limited liability partnership has entered into a contract with an insurer in respect of any liability under any law relating to work injury compensation; and | | (b) | where a limited liability partnership has given security for the payment or repayment of any amount to which sub‑paragraph (1)(g) relates, sub‑paragraph (1)(g) applies only in relation to the balance of any such amount remaining due after deducting from it the net amount realised from such security. |
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| (11) Where in any winding up assets have been recovered under an indemnity for costs of litigation given by certain creditors, or have been protected or preserved by the payment of moneys or the giving of indemnity by creditors, or where expenses in relation to which a creditor has indemnified a liquidator have been recovered, the Court may make any order that it thinks just with respect to the distribution of those assets and the amount of those expenses so recovered with a view to giving those creditors an advantage over others in consideration of the risks run by them in so doing. |
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| Priority of specified debts relating to platform workers in winding up of platform operator |
76A.—(1) This paragraph applies in relation to a winding up of a platform operator that is a limited liability partnership.(2) The following have priority over all unsecured debts of the platform operator, other than the preferential debts specified in paragraph 76(1)(a) to (f), and rank in priority after the debts specified in paragraph 76(1)(f) but before those specified in paragraph 76(1)(g):| (a) | first, all earnings payable to a platform worker, including any amount payable by way of reimbursement under any platform work agreement or any award or agreement regulating the conditions under which any platform worker provides a platform service for the platform operator; | | (b) | second, all amounts due in respect of any work injury compensation payable to or for the benefit of a platform worker under the Work Injury Compensation Act 2019 accrued before, on or after the commencement of the winding up; | | (c) | third, all amounts due in respect of contributions payable, during a period of 12 consecutive months commencing not earlier than 12 months before and ending not later than 12 months after the commencement of the winding up, by the platform operator, under any written law relating to platform workers’ superannuation or provident funds. |
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| (3) The amount payable under sub‑paragraph (2)(a) must not exceed $13,000. |
| (4) The debts in each class specified in sub‑paragraph (2) rank in the order specified in that sub‑paragraph but debts of the same class rank equally between themselves, and are to be paid in full, unless the property of the platform operator is insufficient to meet them, in which case the debts of the same class abate in equal proportions between themselves. |
(5) Where any payment has been made to any platform worker of the platform operator on account of earnings out of money advanced by a person for that purpose, the person by whom the money was advanced, in a winding up —| (a) | has a right of priority in respect of the money so advanced and paid, up to the amount by which the sum in respect of which the platform worker would have been entitled to priority in the winding up has been diminished by reason of the payment; and | | (b) | has the same right of priority in respect of that amount as the platform worker would have had if the payment had not been made. |
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(6) So far as the assets of the platform operator available for payment of general creditors are insufficient to meet any preferential debts specified in —| (a) | paragraph 76(1)(a), (b), (c), (e) and (f); | | (b) | sub-paragraph (2)(a) and (c); and | | (c) | any amount payable in priority by virtue of sub‑paragraph (5) or paragraph 76(6), |
| (d) | have priority over the claims of the holders of debentures under any floating charge created by the platform operator (which charge, as created, was a floating charge); and | | (e) | must be paid accordingly out of any property comprised in or subject to that charge. |
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(7) In this paragraph —| “earnings” has the meaning given by section 2 of the Platform Workers Act 2024; |
| “platform operator” has the meaning given by section 4 of the Platform Workers Act 2024; |
| “platform work agreement” has the meaning given by section 2 of the Platform Workers Act 2024; |
| “platform worker” has the meaning given by section 5(1) of the Platform Workers Act 2024. [Act 30 of 2024 wef 01/01/2025] |
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| Division 3 — Effect on other transactions |
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| Transactions at an undervalue |
77.—(1) Subject to this paragraph and paragraphs 79 and 81, where a limited liability partnership is wound up and it has at the relevant time (as defined in paragraph 79) entered into a transaction with any person at an undervalue, the Official Assignee may apply to the Court for an order under this paragraph.| (2) The Court, on such an application, is to make such order as it thinks fit for restoring the position to what it would have been if that limited liability partnership had not entered into that transaction. |
(3) The Court is not to make an order under sub-paragraph (2) in respect of a transaction at an undervalue if it is satisfied that —| (a) | the limited liability partnership which entered into the transaction did so in good faith and for the purpose of carrying on its business; and | | (b) | at the time it did so, there were reasonable grounds for believing that the transaction would benefit the limited liability partnership. |
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(4) For the purposes of this paragraph and paragraphs 79 and 81, a limited liability partnership enters into a transaction with a person at an undervalue if —| (a) | it makes a gift to that person or it otherwise enters into a transaction with that person on terms that provide for it to receive no consideration; or | | (b) | it enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the limited liability partnership. |
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78.—(1) Subject to this paragraph and paragraphs 79 and 81, where a limited liability partnership is wound up and it has, at the relevant time (as defined in paragraph 79), given an unfair preference to any person, the Official Assignee may apply to the Court for an order under this paragraph.| (2) The Court, on such an application, is to make such order as it thinks fit for restoring the position to what it would have been if that limited liability partnership had not given that unfair preference. |
(3) For the purposes of this paragraph and paragraphs 79 and 81, a limited liability partnership gives an unfair preference to a person if —| (a) | that person is one of the limited liability partnership’s creditors or a surety or guarantor for any of its debts or other liabilities; and | | (b) | the limited liability partnership does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the limited liability partnership’s liquidation, will be better than the position the person would have been in if that thing had not been done. |
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| (4) The Court is not to make an order under this paragraph in respect of an unfair preference given to any person unless the limited liability partnership which gave the preference was influenced in deciding to give it by a desire to produce in relation to that person the effect mentioned in sub‑paragraph (3)(b). |
| (5) A limited liability partnership which has given an unfair preference to a person connected with the limited liability partnership (otherwise than by reason only of being its employee) at the time the unfair preference was given is presumed, unless the contrary is shown, to have been influenced in deciding to give it by such a desire as is mentioned in sub‑paragraph (4). |
| (6) The fact that something has been done pursuant to the order of a court does not, without more, prevent the doing or suffering of that thing from constituting the giving of an unfair preference. |
| (7) This paragraph applies without affecting the operation of paragraph 85. |
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| Relevant time under paragraphs 77 and 78 |
79.—(1) Subject to this paragraph, the time at which a limited liability partnership enters into a transaction at an undervalue or gives an unfair preference is a relevant time if the transaction is entered into or the preference given —| (a) | in the case of a transaction at an undervalue, within the period of 5 years ending on the day which the winding up of the limited liability partnership is deemed by this Schedule to have commenced; | | (b) | in the case of an unfair preference which is not a transaction at an undervalue and is given to a person who is connected with the limited liability partnership (otherwise than by reason only of being its employee), within the period of 2 years ending on that day; and | | (c) | in any other case of an unfair preference which is not a transaction at an undervalue, within the period of 6 months ending on that day. |
(2) Where a limited liability partnership enters into a transaction at an undervalue or gives an unfair preference at a time mentioned in sub‑paragraph (1)(a), (b) or (c), that time is not a relevant time for the purposes of paragraphs 77 and 78 unless the limited liability partnership —| (a) | is insolvent at that time; or | | (b) | becomes insolvent in consequence of the transaction or preference. |
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| (3) Where a transaction is entered into at an undervalue by a limited liability partnership with a person who is connected to the limited liability partnership (otherwise than by reason only of being its employee), the requirements under sub-paragraph (2) are presumed to be satisfied unless the contrary is shown. |
(4) For the purposes of sub-paragraph (2), a limited liability partnership is insolvent if —| (a) | it is unable to pay its debts as they fall due; or | | (b) | the value of its assets is less than the amount of its liabilities. |
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| Meaning of “connected with” |
80.—(1) For the purposes of paragraphs 78 and 79, any question whether a person is connected with a limited liability partnership is determined in accordance with this paragraph.(2) A person is connected with a limited liability partnership if the person is —| (a) | a partner of the limited liability partnership or an associate of such a partner; or | | (b) | an associate of the limited liability partnership. |
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| (3) A person is an associate of an individual if that person is the individual’s spouse, or is a relative, or the spouse of a relative of, the individual or his or her spouse. |
| (4) A person is an associate of any other person with whom the person is in partnership, and of the spouse or relative of any individual with whom the person is in partnership. |
| (5) A person is an associate of any other person whom the person employs or by whom the person is employed and for this purpose, any director or other officer of a company is treated as employed by that company and any partner of a limited liability partnership is treated as employed by that limited liability partnership. |
| (6) A person in the capacity as trustee of a trust is an associate of another person if the beneficiaries of the trust include, or the terms of the trust confer a power that may be exercised for the benefit of, that other person or an associate of that other person. |
(7) A limited liability partnership or company is regarded as an associate of another limited liability partnership or company if —| (a) | the same person has control of both entities; | | (b) | a person (P) has control of one entity and persons who are P’s associates, or P and P’s associates, have control of the other entity; or | | (c) | a group of 2 or more persons has control of each entity, and the groups —| (i) | consist of the same persons; or | | (ii) | could be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person of whom the member is an associate. |
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| (8) A limited liability partnership or company is an associate of a person if that person has control of it or if that person and other persons who are that person’s associates together have control of it. |
(9) For the purposes of this paragraph, a person is a relative of an individual if the person is that individual’s brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant, treating —| (a) | any relationship of the half blood as a relationship of the whole blood and the stepchild or adopted child of any person as the person’s child; and | | (b) | an illegitimate child as the legitimate child of the child’s mother and reputed father. |
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| (10) References in this paragraph to a spouse include a former spouse. |
(11) For the purposes of this paragraph, a person is taken to have control of a limited liability partnership or company if —| (a) | the partners of the limited liability partnership or directors of the company or the partners or directors of another entity which has control of the partnership or company, as the case may be (or any of them), are accustomed to act in accordance with the person’s directions or instructions; or | | (b) | the person is entitled to exercise, or control the exercise of, one‑third or more of the voting power at any meeting of the limited liability partnership or general meeting of the company or of another entity which has control of the partnership or company, as the case may be, |
| and where 2 or more persons together satisfy sub‑paragraph (a) or (b), they are taken to have control of the limited liability partnership or company. |
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| (12) In this paragraph, “company” includes any body corporate (whether incorporated in Singapore or elsewhere); and references to directors and other officers of a company and to voting power at any general meeting of a company have effect with any necessary modifications. |
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| Orders under paragraphs 77 and 78 |
81.—(1) Without limiting paragraphs 77(2) and 78(2), an order under either of those paragraphs with respect to a transaction or preference entered into or given by a limited liability partnership which is subsequently wound up may, subject to this paragraph —| (a) | require any property transferred as part of the transaction, or in connection with the giving of the preference, to be vested in the limited liability partnership; | | (b) | require any property to be so vested if it represents in any person’s hands the application of the proceeds of sale of property so transferred or of money so transferred; | | (c) | release or discharge (in whole or in part) any security given by the limited liability partnership; | | (d) | require any person to pay, in respect of benefits received by the person from the limited liability partnership, such sums to the liquidator as the Court may direct; | | (e) | provide for any surety or guarantor whose obligations to any person were released or discharged (in whole or in part) under the transaction or by the giving of the preference to be under such new or revived obligations to that person as the Court thinks appropriate; | | (f) | provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for the security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction or by the giving of the unfair preference; and | | (g) | provide for the extent to which any person whose property is vested by the order in the limited liability partnership, or on whom obligations are imposed by the order, is to be able to prove in the winding up of the limited liability partnership for debts or other liabilities which arose from, or were released or discharged (in whole or in part) under or by, the transaction or the giving of the unfair preference. |
| (2) An order under paragraph 77 or 78 may affect the property of, or impose any obligation on, any person whether or not the limited liability partnership in question entered into the transaction with the person or unfair preference was given to the person, as the case may be. |
(3) An order under paragraph 77 or 78 must not —| (a) | prejudice any interest in property which was acquired from a person other than that limited liability partnership and was acquired in good faith, for value and without notice of the relevant circumstances, or prejudice any interest deriving from such an interest; or | | (b) | require a person who received a benefit from the transaction or unfair preference in good faith, for value and without notice of the relevant circumstances to pay a sum to the liquidator, except where the person was a party to the transaction or the payment is to be in respect of an unfair preference given to that person at a time when the person was a creditor of that limited liability partnership. |
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(4) For the purposes of this paragraph, the relevant circumstances, in relation to a transaction or unfair preference, are —| (a) | the circumstances by virtue of which an order under paragraph 77 or 78 could be made in respect of the transaction or preference if the limited liability partnership in question were wound up within the particular period after the transaction is entered into or the unfair preference given; and | | (b) | if that period has expired, the fact that the limited liability partnership has been wound up within that period. |
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| Extortionate credit transactions |
82.—(1) This paragraph applies where a limited liability partnership which is wound up is or has been a party to a transaction for or involving the provision to it of credit.| (2) The Court may, on the application of the liquidator, make an order with respect to the transaction if the transaction is or was extortionate and was entered into within 3 years before the commencement of the winding up. |
(3) For the purposes of this paragraph, a transaction is extortionate if, having regard to the risk accepted by the person providing the credit —| (a) | its terms are or were such as to require grossly exorbitant payments to be made (whether unconditionally or in certain contingencies) in respect of the provision of the credit; or | | (b) | it is harsh and unconscionable or substantially unfair, |
| and it is presumed, unless the contrary is proved, that the transaction was extortionate. |
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(4) An order under this paragraph may contain one or more of the following:| (a) | provision setting aside the whole or part of any obligation created by the transaction; | | (b) | provision varying the terms of the transaction or varying the terms on which any security for the purposes of the transaction is held; | | (c) | provision requiring any person who is or was a party to the transaction to pay the liquidator any sums paid to that person; | | (d) | provision requiring any person to surrender to the liquidator any property held by the person as security for the purposes of the transaction; | | (e) | provision directing accounts to be taken between any persons. |
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| (5) Any sums or property required to be paid or surrendered to the liquidator in accordance with an order under this paragraph must be comprised in the bankrupt’s estate. |
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| Avoidance of general assignment of book debts |
83.—(1) This paragraph applies where a limited liability partnership makes a general assignment to another person of its existing or future book debts, or any class of them, and is subsequently wound up.| (2) The assignment is void against the liquidator as regards book debts which were not paid before the commencement of the winding up of the limited liability partnership, unless the assignment has been registered under the Bills of Sale Act 1886. |
(3) For the purposes of this paragraph —| “assignment” includes an assignment by way of security or charge on book debts; |
“general assignment” does not include —| (a) | an assignment of book debts due at the date of the assignment from specified debtors or of debts becoming due under specified contracts; or | | (b) | an assignment of book debts included either in a transfer of a business made in good faith and for value or in an assignment of assets for the benefit of creditors generally. |
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| (4) For the purposes of registration under the Bills of Sale Act 1886, an assignment of book debts is treated as if it were a bill of sale given otherwise than by way of security for the payment of a sum of money. |
| (5) The provisions of the Bills of Sale Act 1886 with respect to the registration of bills of sale apply accordingly with such necessary modifications as may be made by rules under that Act. |
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| Right of recovery of distributions |
84.—(1) A partner or former partner of a limited liability partnership who receives a distribution from the limited liability partnership —| (a) | when the limited liability partnership is insolvent and knew or ought to have known at the time of the distribution that the limited liability partnership was insolvent; or | | (b) | which results in the limited liability partnership becoming insolvent and knew or ought to have known at the time of distribution that the limited liability partnership would become insolvent as a result of the distribution, |
| shall be personally liable to the limited liability partnership for the amount or value of the distribution if it was received within a period of 3 years before the commencement of the winding up of the limited liability partnership. |
(2) For the purposes of this paragraph —| (a) | a limited liability partnership is insolvent at a particular time if at that time —| (i) | it is unable to pay its debts as they become due in the normal course of business; or | | (ii) | the value of the limited liability partnership’s assets is less than the value of its liabilities; |
| | (b) | distribution means any payment of dividends, distribution of profits, return or refund of capital by the limited liability partnership, whether in cash or in kind and any payment made by the limited liability partnership under section 11(3); and | | (c) | a partner or former partner is deemed to have received a distribution if the distribution is received by an assignee of the partner or former partner. |
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| (3) Where any partner or former partner has made a payment to discharge a liability under sub‑paragraph (1), the amount of the payment constitutes a debt due from the limited liability partnership to such partner or former partner, and paragraph 47 applies to such debt but only after all the liabilities of the limited liability partnership (excluding the debts arising under this sub‑paragraph) have been discharged and settled in full. |
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| Liquidator’s right to recover in respect of certain sales to or by limited liability partnership |
85.—(1) Where any property, business or undertaking has been acquired by a limited liability partnership for a cash consideration within a period of 2 years before the commencement of the winding up of the limited liability partnership from —| (a) | a person who was at the time of the acquisition a manager of the limited liability partnership; | | (b) | another limited liability partnership of which, at the time of the acquisition, a manager was also a manager of the firstmentioned limited liability partnership; | | (c) | a corporation (other than a limited liability partnership) of which, at the time of the acquisition, a director was also a manager of the limited liability partnership; or | | (d) | a firm of which, at the time of the acquisition, a partner was also a manager of the limited liability partnership, |
| the liquidator may recover from the person, limited liability partnership, corporation or firm from which the property, business or undertaking was acquired any amount by which the cash consideration for the acquisition exceeded the value of the property, business or undertaking at the time of its acquisition. |
(2) Where any property, business or undertaking has been sold by a limited liability partnership for a cash consideration within a period of 2 years before the commencement of the winding up of the limited liability partnership —| (a) | to a person who was, at the time of the sale, a manager of the limited liability partnership; | | (b) | to another limited liability partnership of which, at the time of the sale, a manager was also a manager of the firstmentioned limited liability partnership; | | (c) | from a corporation (other than a limited liability partnership) of which, at the time of the sale, a director was also a manager of the limited liability partnership; or | | (d) | from a firm of which, at the time of the sale, a partner was also a manager of the limited liability partnership, |
| the liquidator may recover from the person, limited liability partnership, corporation or firm to which the property, business or undertaking was sold any amount by which the value of the property, business or undertaking at the time of the sale exceeded the cash consideration. |
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| (3) For the purposes of this paragraph, the value of the property, business or undertaking includes the value of any goodwill or profits which might have been made from the business or undertaking or similar considerations. |
| (4) In this paragraph, “cash consideration”, in relation to an acquisition or sale by a limited liability partnership, means consideration for such acquisition or sale payable otherwise than as contribution of capital to the limited liability partnership. |
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| Disclaimer of onerous property |
86.—(1) Where any part of the property of a limited liability partnership consists of —| (a) | any estate or interest in land which is burdened with onerous covenants; | | (b) | shares or interests in corporations; | | (c) | unprofitable contracts; or | | (d) | any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor of the property to the performance of any onerous act, or to the payment of any sum of money, |
| the liquidator of the limited liability partnership, even though he or she has endeavoured to sell or has taken possession of the property or exercised any act of ownership in relation to the property, may, with the permission of the Court or the committee of inspection and, subject to this paragraph, by writing signed by him or her, at any time within 12 months after the commencement of the winding up or such extended period as is allowed by the Court, disclaim the property; but where any such property has not come to the knowledge of the liquidator within one month after the commencement of the winding up, the power of disclaiming may be exercised at any time within 12 months after he or she has become aware of the property or such extended period as is allowed by the Court. |
[Act 25 of 2021 wef 01/04/2021] | (2) The disclaimer operates to determine, as from the date of disclaimer, the rights, interest and liabilities of the limited liability partnership and the property of the limited liability partnership in or in respect of the property disclaimed, but does not, except so far as is necessary for the purpose of releasing the limited liability partnership and the property of the limited liability partnership from liability, affect the rights or liabilities of any other person. |
| (3) The Court or the committee before or on granting permission to disclaim may require such notices to be given to persons interested, and impose such terms as a condition of granting permission, and make such other order in the matter as the Court or committee thinks just. [Act 25 of 2021 wef 01/04/2021] |
| (4) The liquidator is not entitled to disclaim if an application in writing has been made to him or her by any person interested in the property requiring him or her to decide whether he or she will or will not disclaim, and the liquidator has not, within a period of 28 days after the receipt of the application or such further period as is allowed by the Court or the committee, given notice to the applicant that he or she intends to apply to the Court or the committee for permission to disclaim, and, in the case of a contract, if the liquidator after such an application in writing does not within that period or further period disclaim the contract, he or she is deemed to have adopted it. [Act 25 of 2021 wef 01/04/2021] |
| (5) The Court may, on the application of a person who is, as against the liquidator, entitled to the benefit or subject to the burden of a contract made with the limited liability partnership, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non‑performance of the contract, or otherwise as the Court thinks just, and any damages payable under the order to that person may be proved by the person as a debt in the winding up. |
(6) The Court may —| (a) | on the application of a person who either claims any interest in any disclaimed property or is under any liability not discharged by this Act in respect of any disclaimed property; and | | (b) | on hearing such persons as it thinks fit, |
| make an order for the vesting of the property in or the delivery of the property to any person entitled to it, or to whom it seems just that the property should be delivered by way of compensation for such liability as mentioned in sub‑paragraph (a), or a trustee for the person, and on such terms as the Court thinks just, and on any such vesting order being made and a copy of it and an office copy of it being lodged with the Registrar and the Official Receiver, respectively, and if the order relates to land with the appropriate authority concerned with the recording or registration of dealings in that land (as the case requires) the property comprised therein vests accordingly in the person named in the order in that behalf without any further conveyance, transfer or assignment. |
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(7) Despite anything in sub-paragraph (6), where the property disclaimed is of a leasehold nature, the Court is not to make a vesting order in favour of any person claiming under the limited liability partnership, whether as under-lessee or as mortgagee, except upon the terms of making that person —| (a) | subject to the same liabilities and obligations as those to which the limited liability partnership was subject under the lease in respect of the property at the commencement of the winding up; or | | (b) | if the Court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date, |
| and in either event, if the case so requires, as if the lease had comprised only the property comprised in the vesting order, and any under‑lessee or mortgagee declining to accept a vesting order upon such terms is excluded from all interest in and security upon the property, and, if there is no person claiming under the limited liability partnership who is willing to accept an order upon such terms, the Court may vest the estate and interest of the limited liability partnership in the property in any person liable personally or in a representative character and either alone or jointly with the limited liability partnership to perform the lessee’s covenants in the lease, freed and discharged from all estates, incumbrances and interests created by the limited liability partnership. |
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| (8) Any person injured by the operation of a disclaimer under this paragraph is deemed to be a creditor of the limited liability partnership to the amount of the injury, and may accordingly prove the amount as a debt in the winding up. |
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87. In paragraphs 88 and 89 —| “goods” includes all chattels personal; |
| “bailiff” includes any officer charged with the execution of a writ or other process. |
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| Restriction of rights of creditor as to enforcement or attachment |
88.—(1) Where a creditor has obtained an enforcement order against the goods or land of a limited liability partnership or has attached any debt due to the limited liability partnership and the limited liability partnership is subsequently wound up, the creditor is not entitled to retain the benefit of the enforcement order or attachment against the liquidator unless the creditor has completed the enforcement order or attachment before the date of the commencement of the winding up, but —| (a) | where any creditor has had notice of a meeting having been called at which a resolution for voluntary winding up is to be proposed, the date on which the creditor so had notice is for the purposes of this paragraph substituted for the date of the commencement of the winding up; | | (b) | a person who purchases in good faith under a sale by the bailiff any goods of a limited liability partnership on which an enforcement order has been executed in all cases acquires a good title to them against the liquidator; and | | (c) | the rights conferred by this sub-paragraph on the liquidator may be set aside by the Court in favour of the creditor to the extent and subject to the terms that the Court thinks fit. |
(2) For the purposes of this paragraph —| (a) | an enforcement order against goods is completed by seizure and sale; | | (b) | an attachment of a debt is completed by receipt of the debt; and | | (c) | an enforcement order against land is completed by sale or, in the case of an equitable interest, by the appointment of a receiver. [Act 25 of 2021 wef 01/04/2021] |
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| Duties of bailiff as to goods taken under or pursuant to enforcement order |
89.—(1) Subject to sub-paragraph (3), where any goods of a limited liability partnership are taken under or pursuant to an enforcement order and, before the sale of the goods or the completion of the enforcement order by the receipt or recovery of the full amount of the levy, notice is served on the bailiff that —| (a) | a provisional liquidator has been appointed; | | (b) | a winding up order has been made; or | | (c) | a resolution for voluntary winding up has been passed, |
| the bailiff must, on being so required, deliver the goods and any money seized or received in part satisfaction of the enforcement order to the liquidator, but the costs of the enforcement order are a first charge on the goods or moneys so delivered, and the liquidator may sell the goods, or a sufficient part of the goods, for the purpose of satisfying that charge. |
| (2) Subject to sub-paragraph (3), where under an enforcement order in respect of a judgment for a sum exceeding $100 the goods of a limited liability partnership are sold or money is paid in order to avoid sale, the bailiff must deduct the costs of the enforcement order from the proceeds of the sale or the money paid and retain the balance of 14 days; and if within that time notice is served on the bailiff of an application for the winding up of the limited liability partnership having been made or of a meeting having been called at which there is to be proposed a resolution for the voluntary winding up and an order is made or a resolution is passed for the winding up, the bailiff must pay the balance to the liquidator who is entitled to retain it as against the enforcement creditor. |
| (3) The rights conferred by this paragraph on the liquidator may be set aside by the Court in favour of the creditor to the extent and subject to the terms that the Court thinks fit. [Act 25 of 2021 wef 01/04/2021] |
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| Offences by officers of limited liability partnerships in liquidation |
90.—(1) Every person who, being a past or present officer or a partner of a limited liability partnership which is being wound up —| (a) | does not to the best of the person’s knowledge and belief fully and truly disclose to the liquidator —| (i) | all the property movable and immovable of the limited liability partnership; and | | (ii) | how and to whom and for what consideration and when the limited liability partnership disposed of any part of the property, except such part as has been disposed of in the ordinary way of the business of the limited liability partnership; |
| | (b) | does not deliver up to the liquidator, or as he or she directs —| (i) | all the movable and immovable property of the limited liability partnership in the person’s custody or under the person’s control and which the person is required by law to deliver up; or | | (ii) | all books and papers in the person’s custody or under the person’s control belonging to the limited liability partnership and which the person is required by law to deliver up; |
| | (c) | within 12 months immediately before the commencement of the winding up or at any time thereafter —| (i) | has concealed any part of the property of the limited liability partnership to the value of $200 or upwards, or has concealed any debt due to or from the limited liability partnership; | | (ii) | has fraudulently removed any part of the property of the limited liability partnership to the value of $200 or upwards; | | (iii) | has concealed, destroyed, mutilated or falsified, or has been privy to the concealment, destruction, mutilation or falsification of, any book or paper affecting or relating to the property or affairs of the limited liability partnership; | | (iv) | has made or has been privy to the making of any false entry in any book or paper affecting or relating to the property or affairs of the limited liability partnership; | | (v) | has fraudulently parted with, altered or made any omission in, or has been privy to fraudulent parting with, altering or making any omission in, any document affecting or relating to the property or affairs of the limited liability partnership; | | (vi) | by any false representation or other fraud, has obtained any property for or on behalf of the limited liability partnership on credit which the limited liability partnership has not subsequently paid for; | | (vii) | has obtained on credit, for or on behalf of the limited liability partnership, under the false pretence that the limited liability partnership is carrying on its business, any property which the limited liability partnership has not subsequently paid for; or | | (viii) | has pawned, pledged or disposed of any property of the limited liability partnership which has been obtained on credit and has not been paid for, unless such pawning, pledging or disposing was in the ordinary way of the business of the limited liability partnership; |
| | (d) | makes any material omission in any statement relating to the affairs of the limited liability partnership; | | (e) | knowing or believing that a false debt has been proved by any other person, fails for a period of one month to inform the liquidator of it; | | (f) | prevents the production of any book or paper affecting or relating to the property or affairs of the limited liability partnership; | | (g) | within 12 months immediately before the commencement of the winding up or at any time thereafter, has attempted to account for any part of the property of the limited liability partnership by fictitious losses or expenses; or | | (h) | within 12 months immediately before the commencement of the winding up or at any time thereafter, has been guilty of any false representation or other fraud for the purpose of obtaining the consent of the creditors of the limited liability partnership or any of them to an agreement with reference to the affairs of the limited liability partnership or to the winding up, |
| shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years. |
| (2) It is a good defence to a charge under sub-paragraph (1)(a), (b), (d) or sub‑paragraph (1)(c)(i), (vii) or (viii) if the accused proves that the accused had no intent to defraud, and to a charge under sub‑paragraph (1)(f) or sub‑paragraph (1)(c)(iii) or (iv) if the accused proves that the accused had no intent to conceal the state of affairs of the limited liability partnership or to defeat the law. |
| (3) Where any person pawns, pledges or disposes of any property in circumstances which amount to an offence under sub‑paragraph (1)(c)(viii), every person who takes the property in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged or disposed of in those circumstances shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years. |
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| Inducement to be appointed liquidator |
| 91. Any person who gives or agrees or offers to give to any partner or creditor of a limited liability partnership any valuable consideration with a view to securing his or her own appointment or nomination, or to securing or preventing the appointment or nomination of some person other than himself or herself, as the limited liability partnership’s liquidator, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 6 months. |
| Penalty for falsification of books |
| 92. Every officer or partner of any limited liability partnership being wound up who destroys, mutilates, alters or falsifies any books, papers or securities, or makes or is privy to the making of any false or fraudulent entry in any register or book of account or document, belonging to the limited liability partnership with intent to defraud or deceive any person shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years. |
| Liability where proper accounts not kept |
93.—(1) If, on an investigation under this Act or where a limited liability partnership is wound up, it is shown that proper books of account were not kept by the limited liability partnership throughout the period of 2 years immediately preceding the commencement of the investigation or winding up or the period between the registration of the limited liability partnership and the commencement of the investigation or winding up (whichever is the lesser), every officer who is in default shall, unless he or she acted honestly and shows that, in the circumstances in which the business of the limited liability partnership was carried on, the default was excusable, be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months.(2) For the purposes of this paragraph, proper books of account are deemed not to have been kept in the case of any limited liability partnership if —| (a) | there have not been kept —| (i) | such books or accounts as are necessary to exhibit and explain the transactions and financial position of the trade or business of the limited liability partnership, including books containing entries from day to day in sufficient detail of all cash received and cash paid; and | | (ii) | where the trade or business has involved dealings in goods, statements of the annual stocktakings and (except in the case of goods sold by way of ordinary retail trade) of all goods sold and purchased, showing the goods and the buyers and sellers of the goods in sufficient detail to enable those goods and those buyers and sellers to be identified; or |
| | (b) | books or accounts have not been kept in such manner as to enable them to be conveniently and properly audited, whether or not the limited liability partnership has appointed an auditor. |
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| (3) If, in the course of the winding up of a limited liability partnership or in any proceedings against a limited liability partnership, it appears that an officer of the limited liability partnership who was knowingly a party to the contracting of a debt had, at the time the debt was contracted, no reasonable or probable ground of expectation, after taking into consideration the other liabilities (if any) of the limited liability partnership at the time of the limited liability partnership being able to pay the debt, the officer shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 3 months. |
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| Responsibility for fraudulent trading |
94.—(1) If, in the course of the winding up of a limited liability partnership or in any proceedings against a limited liability partnership, it appears that any business of the limited liability partnership has been carried on with intent to defraud creditors of the limited liability partnership or creditors of any other person or for any fraudulent purpose, the Court, on the application of the liquidator or any creditor or partner of the limited liability partnership, may, if it thinks proper to do so, declare that any person who was knowingly a party to the carrying on of the business in that manner is personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the limited liability partnership as the Court directs.| (2) Where a person has been convicted of an offence under paragraph 93(3) in relation to the contracting of such a debt as is mentioned in that sub‑paragraph, the Court, on the application of the liquidator or any creditor or partner of the limited liability partnership, may, if it thinks proper to do so, declare that the person is personally responsible without any limitation of liability for the payment of the whole or any part of that debt. |
(3) Where the Court makes any declaration pursuant to sub‑paragraph (1) or (2), it may give any further directions that it thinks proper for the purpose of giving effect to that declaration, and in particular may —| (a) | provide for the liability of any person (P) under the declaration to be made a charge on —| (i) | any debt or obligation due from the limited liability partnership to P; or | | (ii) | any charge or any interest in any charge on any assets of the limited liability partnership held by or vested in —| (A) | P; | | (B) | any corporation or other person on P’s behalf; | | (C) | any person claiming as assignee from or through P; or | | (D) | any corporation or other person acting on P’s behalf; and |
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| | (b) | may from time to time make any further order that is necessary for the purpose of enforcing any charge imposed under this sub‑paragraph. |
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| (4) In sub-paragraph (3), “assignee” includes any person to whom or in whose favour by the directions of the person liable the debt, obligation or charge was created, issued or transferred or the interest created, but does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made. |
| (5) Where any business of a limited liability partnership is carried on with the intent or for the purpose mentioned in sub-paragraph (1), every person who was knowingly a party to the carrying on of the business with that intent or purpose shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding 7 years or to both. |
| (6) Sub-paragraph (5) applies to a limited liability partnership whether or not it has been, or is in the course of being, wound up. |
| (7) This paragraph has effect even though the person concerned is criminally liable apart from this paragraph in respect of the matters on the ground of which the declaration is made. |
| (8) On the hearing of an application under sub-paragraph (1) or (2), the liquidator may himself or herself give evidence or call witnesses. |
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| Power of Court to assess damages against delinquent officers, etc. |
95.—(1) If, in the course of winding up a limited liability partnership, it appears that any person who has taken part in the formation or registration of the limited liability partnership or any past or present liquidator or officer has misapplied or retained or become liable or accountable for any money or property of the limited liability partnership or been guilty of any misfeasance or breach of trust or duty in relation to the limited liability partnership, the Court may, on the application of the liquidator or of any creditor or partner, examine into the conduct of such person, liquidator or officer and compel the person, liquidator or officer to repay or restore the money or property or any part thereof with interest at such rate as the Court thinks just, or to contribute such sum to the assets of the limited liability partnership by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust or duty as the Court thinks just.| (2) This paragraph extends and applies to and in respect of the receipt of any money or property by any officer of the limited liability partnership during the 2 years preceding the commencement of the winding up whether by way of salary or otherwise appearing to the Court to be unfair or unjust to other partners of the limited liability partnership. |
| (3) This paragraph has effect even though the offence is one for which the offender is criminally liable. |
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| Prosecution of delinquent officers and partners of limited liability partnership |
96.—(1) If it appears to the Court, in the course of a winding up by the Court, that any past or present officer, or any partner, of the limited liability partnership has been guilty of an offence in relation to the limited liability partnership for which the officer or partner is criminally liable, the Court may, either on the application of any person interested in the winding up or of its own motion, direct the liquidator to prosecute the offender or to refer the matter to the Minister.| (2) If it appears to the liquidator, in the course of a voluntary winding up, that any past or present officer, or any partner, of the limited liability partnership has been guilty of any offence in relation to the limited liability partnership for which the officer or partner is criminally liable, the liquidator must immediately report the matter to the Minister and must, in respect of information or documents in his or her possession or under his or her control which relate to the matter in question, provide the Minister with any information and give to the Minister any access to and facilities for inspecting and taking copies of any document that the Minister may require. |
| (3) If it appears to the liquidator, in the course of any winding up, that the limited liability partnership which is being wound up will be unable to pay its unsecured creditors more than 50 cents in the dollar, the liquidator must immediately report the matter in writing to the Official Receiver and must provide the Official Receiver with any information and give to the Official Receiver any access to and facilities for inspecting and taking copies of any document that the Official Receiver may require. |
| (4) Where any report is made under sub-paragraph (2) or (3), the Minister may, if he or she thinks fit, investigate the matter and for the purposes of such an investigation has all the powers of investigating the affairs of the limited liability partnership that are provided by this Act in the case of a winding up by the Court, but if it appears to the Minister that the case is not one in which proceedings ought to be taken by the Minister, he or she must inform the liquidator accordingly, and subject to the previous approval of the Court the liquidator may then take proceedings against the offender. |
| (5) If it appears to the Court, in the course of a voluntary winding up, that any past or present officer, or any partner, of the limited liability partnership has been guilty as aforesaid and that no report with respect to the matter has been made by the liquidator to the Minister, the Court may, on the application of any person interested in the winding up or of its own motion, direct the liquidator to make such a report, and on a report being made accordingly this paragraph has effect as though the report has been made pursuant to sub‑paragraph (2). |
| (6) If, where any matter is reported or referred to the Minister or the Official Receiver under this paragraph, and the Minister or Official Receiver considers that the case is one in which a prosecution ought to be instituted, the Minister or Official Receiver may institute proceedings accordingly, and the liquidator and every officer and agent of the limited liability partnership past and present, other than the defendant in the proceedings, must give the Minister or Official Receiver all assistance in connection with the prosecution which they are reasonably able to give. |
| (7) In sub-paragraph (6), “agent”, in relation to a limited liability partnership, includes any banker or solicitor of the limited liability partnership and any person employed by the limited liability partnership as auditor, whether or not an officer of the limited liability partnership. |
| (8) If any person fails or neglects to give assistance in the manner required by sub‑paragraph (6), the Court may, on the application of the Minister or Official Receiver, direct that person to comply with the requirements of that sub‑paragraph, and where any application is made under this sub‑paragraph with respect to a liquidator the Court may, unless it appears that the failure or neglect to comply was due to the liquidator not having in his or her hands sufficient assets of the limited liability partnership to enable him or her to do so, direct that the costs of the application must be borne by the liquidator personally. |
| (9) The Minister may direct that the whole or any part of any costs and expenses properly incurred by the liquidator in proceedings brought under this paragraph must be defrayed out of moneys provided by Parliament. |
| (10) Subject to any direction given under sub-paragraph (9) and to any charges on the assets of the limited liability partnership and any debts to which priority is given by this Act, all costs and expenses under that sub‑paragraph must be payable out of those assets as part of the costs of winding up. |
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| Power of Court to declare dissolution of limited liability partnership void |
97.—(1) Where a limited liability partnership has been dissolved, the Court may at any time within 2 years after the date of dissolution, on application of the liquidator of the limited liability partnership or of any other person who appears to the Court to be interested, make an order upon such terms as the Court thinks fit declaring the dissolution to have been void, and such proceedings may then be taken as might have been taken if the limited liability partnership had not been dissolved.| (2) The person on whose application the order must, within 7 days after the making of the order or such further time as the Court allows, lodge with the Registrar and with the Official Receiver a copy of the order and an office copy of the order, respectively, and if the person fails to do so shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000. |
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| Official Receiver to act as representative of defunct limited liability partnership in certain events |
98.—(1) Where, after a limited liability partnership has been dissolved, it is proved to the satisfaction of the Official Receiver that —| (a) | the limited liability partnership, if still existing, would be legally or equitably bound to carry out, complete or give effect to some dealing, transaction or matter; and | | (b) | in order to carry out, complete or give effect thereto, some purely administrative act, not discretionary, should have been done by or on behalf of the limited liability partnership, or should be done by or on behalf of the limited liability partnership, if still existing, |
| the Official Receiver may, as representing the limited liability partnership or its liquidator under this paragraph, do or cause to be done any such act. |
| (2) The Official Receiver may execute or sign any relevant instrument or document adding a memorandum stating that he or she has done so pursuant to this paragraph, and such execution or signature has the same force, validity and effect as if the limited liability partnership if existing had duly executed the instrument or document. |
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| Outstanding assets of defunct limited liability partnership to vest in Official Receiver |
99.—(1) Where, after a limited liability partnership has been dissolved, there remains any outstanding property, movable or immovable, including things in action and whether in or outside Singapore, which was vested in the limited liability partnership or to which it was entitled, or over which it had a disposing power at the time it was so dissolved, but which was not got in, realised upon or otherwise disposed of or dealt with by the limited liability partnership or its liquidator, such property must, for the purposes of the following paragraphs of this Division and despite any written law or rule of law to the contrary, by the operation of this paragraph, be and become vested in the Official Receiver for all the estate and interest therein legal or equitable of the limited liability partnership or its liquidator at the date the limited liability partnership was dissolved, together with all claims, rights and remedies which the limited liability partnership or its liquidator then had in respect thereof.| (2) Where any claim, right or remedy of the liquidator may under this Act be made, exercised or availed of only with the approval or concurrence of the Court or some other person, the Official Receiver may for the purposes of this paragraph make, exercise or avail himself or herself of that claim, right or remedy without such approval or concurrence. |
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| Disposal of outstanding interests in property |
100.—(1) Upon proof to the satisfaction of the Official Receiver that there is vested in him or her by operation of paragraph 99 or by operation of any corresponding previous written law any estate or interest in property, whether solely or together with any other person, of a beneficial nature and not merely held in trust, the Official Receiver may sell or otherwise dispose of or deal with such estate or interest or any part thereof as he or she sees fit.| (2) The Official Receiver may sell or otherwise dispose of or deal with such property either solely or in concurrence with any other person in such manner for such consideration by public auction, public tender or private contract upon such terms and conditions as he or she thinks fit, with power to rescind any contract and resell or otherwise dispose of or deal with such property as he or she thinks expedient, and may make, execute, sign and give such contracts, instruments and documents as he or she thinks necessary. |
| (3) The Official Receiver must be remunerated by such commission, whether by way of percentage or otherwise, as is prescribed in respect of the exercise of the powers conferred upon him or her by sub‑paragraph (1). |
| (4) The moneys received by the Official Receiver in the exercise of any of the powers conferred on him or her by this Division must be applied in defraying all costs, expenses, commission and fees incidental thereto and thereafter to any payment authorised by this Division and the surplus (if any) must be dealt with as if they were unclaimed moneys paid to the Official Receiver pursuant to paragraph 69. |
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| Liability of Official Receiver and Government as to property vested in Official Receiver |
| 101. Property vested in the Official Receiver by operation of this Division or by operation of any corresponding previous written law is liable and subject to all charges, claims and liabilities imposed on or affecting such property by reason of any statutory provision as to rates, taxes, charges or any other matter or thing to which such property would have been liable or subject had the property continued in the possession, ownership or occupation of the limited liability partnership; but no duty, obligation or liability is to be imposed on the Official Receiver or the Government to do or suffer any act or thing required by any such statutory provision to be done or suffered by the owner or occupier other than the satisfaction or payment of any such charges, claims or liabilities out of the assets of the limited liability partnership so far as they are in the opinion of the Official Receiver properly available for and applicable to such payment. |
102.—(1) The Official Receiver must —| (a) | record in a register a statement of any property coming to his or her hand or under his or her control or to his or her knowledge vested in him or her by operation of this Division and of his or her dealings with the property; | | (b) | keep accounts of all moneys arising from the property and of how they have been disposed of; and | | (c) | keep all accounts, vouchers, receipts and papers relating to such property and moneys. |
| (2) The Auditor-General has all the powers in respect of such accounts as are conferred upon him or her by any Act relating to audits of public accounts. [5/2008; 22/2008; 21/2016; 16/2017; 40/2018; 27/2019; 40/2019; S 1090/2020] |
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