Disclosure Of Professional Fee Arrangements To Scheme Creditors And The Court

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Hilary McDaniel
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Disclosure Of Professional Fee Arrangements To Scheme Creditors And The Court Introduction The issue in The Royal Bank of Scotland NV v TT International Ltd [2012] SGCA 53 centered on whether a

1 Disclosure Of Professional Fee Arrangements To Scheme Creditors And The Court Introduction The issue in The Royal Bank of Scotland NV v TT International Ltd [2012] SGCA 53 centered on whether a success-based professional fee arrangement should have been disclosed to the scheme creditors and the Court prior to the sanction of a scheme of arrangement. In this case, the Company entered into an agreement with an entity owned by the Scheme Manager whereby the Company is required to pay the entity a success-based fee for professional services rendered upon successful implementation of the scheme. This agreement was not disclosed to the scheme creditors and the Court prior to the sanction of the scheme. After the Monitoring Committee ( MC ) under the scheme came to know of its existence almost a year after the scheme was sanctioned, the MC brought this to the attention of the Court of Appeal and sought directions for assessment of the success fee arrangement in court. The Monitoring Committee was represented by Lee Eng Beng SC, Low Poh Ling and Raelene Pereira from the Firm s Practice. Brief Facts The global economic crunch in 2008 adversely affected the business of the Company, leading to, amongst others, its failure to pay off its debts. In October of that year, it engaged ntan Corporate Advisory Pte Ltd ( ntan ) to advise on a debt restructuring plan for the Company. ntan is owned by the scheme manager, Mr Nicky Tan ( SM ). The scheme of arrangement ( Scheme ) was sanctioned on 13 October Prior to the sanction of the Scheme, it was not disclosed to the Company s scheme creditors that the Company had entered into a success fee agreement with ntan which provided, inter alia, for the payment of a Value Added Fee ( VAF ) comprising 7.5% of the net value of debt resolved and 5% of the total gross transaction value by the Company to ntan. The quantum of the VAF was estimated to be in the region of some S$15 million to S$30 million. 1 Rajah & Tann LLP

2 Issues The Court considered the following issues: (i) (ii) whether the VAF should have been disclosed to the scheme creditors and to the Court prior to the sanction of the Scheme, notwithstanding that there may be a commercial practice not to disclose the VAF; and if it should have been so disclosed, what ought to be the consequences of nondisclosure of the VAF to the scheme creditors and to the Court in this case Ruling of the Court V K Rajah JA ruled that the VAF should have been disclosed to the scheme creditors and to the Court prior to the sanction of the Scheme. This was so that the scheme creditors could make an informed decision on whether to support the Scheme given that the potentially large amount involved in the VAF could impinge on the financial interests of the scheme creditors. Nature of the VAF Based on the Letter of Appointment that provided for the VAF, net value of debt resolved refers to the total value of the Group s actual and contingent liabilities... which upon successful completion... are waived, written off, extinguished, forgiven or avoided. This means that the greater the amount of debt due to the creditor that is waived, written off, extinguished, forgiven or avoided, the greater the amount of fees will be payable to ntan. It is plain that the VAF immediately became a contingent liability incurred by the Company in favour of ntan when the Appointment Letter was entered into which would crystallise the moment the Scheme was successfully implemented. Given the nature of the VAF, the scheme creditors would certainly have a very tangible ongoing interest in the potentially large amount of fees involved. Prevailing Practice The Court noted that it is not uncommon for some scheme managers to include successbased element in their professional fees. There is also no established practice in Singapore of such success-based fees of scheme managers being voluntarily disclosed to the creditors or the courts. However, the Court stressed that this commercial practice, no matter how prevalent, does not have the force of law if it is contrary to legal principle. 2 Rajah & Tann LLP

3 Duty to Disclose Material Information Transparency in the affairs of a distressed company by disclosing all material information that could significantly affect the financial interests of creditors is essential in the rehabilitation of the company. It is through the full disclosure of material information that the creditors will be able to make an informed decision in relation to the company s scheme of arrangement. Duty to disclose material information an independent principle of law The duty of disclosure on the Company has been declared to be an independent principle of law (as highlighted in Wah Yuen Electrical Engineering Pte Ltd v Singapore Cables Manufacturers Pte Ltd [2003] 3 SLR(R) 6290), that is entirely distinct from the statutorilymandated disclosure obligation under s211(1) of the Companies Act (Cap 50, 2006 Rev Ed). This principle has also taken firm root in other Commonwealth jurisdictions. In the United Kingdom, it has been held that a creditor ought to be given such up to date information that would explain how the scheme would affect him commercially as can reasonably be provided by the company (Re Heron International NV and others [1994] 1 BCLC 667). In Australia, a company is obliged to make full and fair disclosure of all material facts known to them or reasonably accessible to them which it is relevant for the creditors to know (Re Pheon Pty Ltd (1986) 11 ACLR 142). The regulatory guidelines of the Australia Securities & Investment Commission also reinforce this principle by highlighting that the explanatory statement should disclose how a scheme administrator will be remunerated. Material information In the present case, material information includes not only information which would allow the creditors to determine how their expected returns under the proposed scheme of arrangement would be derived, but also those relating to the commercial viability of the implementation of the scheme as a whole. This includes the terms of the proposed SM s appointment prior to sanction of the Scheme and all benefits accruing to the proposed SM. It should certainly cover contingent liabilities such as the VAF which would crystallise the moment the Scheme was successfully implemented. Therefore, the duty of disclosure was clearly breached when the Company failed to disclose material information (such as the VAF) to the scheme creditors so that they could make an informed decision on whether to support the proposed scheme. 3 Rajah & Tann LLP

4 Proposed Scheme Manager s duty to ensure disclosure The Court was of the view that the proposed SM has to act in good faith towards the scheme creditors and must not mislead or suppress material information from scheme creditors. The proposed SM s duties in this case are further amplified as he also assumes the quasi-judicial role of adjudicating on the proofs of debt where he also owes duties to be objective, independent, fair and impartial and must not place himself in a position of conflict. A conflict of interest has arisen in this case as the quantum of VAF which would accrue to ntan was dependent on the value of the debts which would be adjudicated by the proposed SM himself. Therefore, the proposed SM should have personally taken steps to ensure that this was disclosed to the scheme creditors and the Court prior to sanction of the Scheme and to obtain the informed consent of the scheme creditors to resolve his position of conflict. Consequences of Breach of Duty The Court of Appeal held that ordinarily, the Scheme should have been set aside given that the material aspect of it was not disclosed before sanction for its implementation was given. However, since the Scheme has been implemented for more than two years, the Court found it not practical to set it aside without causing more harm to the Company and the scheme creditors. The Court thus directed the parties (that is, SM / ntan, the Company and the MC) to reach an agreement as to what ought to be the proper amount of ntan s professional fees, failing which ntan s global fees will be assessed by a High Court Judge. Should the matter proceed for assessment, the High Court shall take into account the principles stated in Re Econ Corp Ltd (in provisional liquidation) [2004] 2 SLR(R) 264 ( Re Econ ) which are also applicable to scheme managers. Re Econ laid down certain principles that must be considered in determining the remuneration of insolvency practitioners. In assessing ntan s fee, the Court must ensure that it will be fairly, reasonably and adequately compensated, having regard to: (i) the value ntan contributed in the exercise (in this case, the benefits accruing to the Company and the creditors); (ii) the nature of work involved; (iii) time spent; (iv) assistance provided by employees working in ntan; (v) scope of work; and (vi) reasonable disbursements incurred. Conclusion This is the first case decided by the courts in Singapore on the issue of disclosure of fee arrangements to scheme creditors and the Court. It emphasises the uncompromising need for transparency in relation to material information to be provided to scheme 4 Rajah & Tann LLP

creditors and also serves as a timely reminder that companies proposing schemes of arrangement and proposed scheme managers must be mindful of the interests of the creditors in discharging their

The Court warned that in future, a scheme of arrangement that has been approved by the creditors or the Court without full and accurate disclosure of material information would be set aside and if a

This decision also affects other types of insolvency practitioners.

5 creditors and also serves as a timely reminder that companies proposing schemes of arrangement and proposed scheme managers must be mindful of the interests of the creditors in discharging their duties. The Court warned that in future, a scheme of arrangement that has been approved by the creditors or the Court without full and accurate disclosure of material information would be set aside and if a similar case were to occur again, the Court hearing the matter could order costs against all parties responsible for the failure to be transparent about such dealings. This decision also affects other types of insolvency practitioners. In this regard, the Court observed that the commercial practice of not disclosing the fee arrangements of proposed scheme managers is contrary to public interest as it could lead to abuse and dilution of the scheme creditors rights. This observation equally applies to arrangements made with other types of insolvency practitioners. Contacts Lee Eng Beng SC Partner D (65) F (65) eng.beng.lee@rajahtann.com Low Poh Ling Partner D (65) F (65) poh.ling.low@rajahtann.com Please feel free to also contact the Knowledge and Risk Management Group at eoasis@rajahtann.com Rajah & Tann LLP is the largest law firm in Singapore and Southeast Asia, with regional offices in China, Lao PDR, Vietnam and Thailand, as well as associate and affiliate offices in Malaysia, Indonesia, Cambodia and the Middle East. Our Asian network also includes regional desks focused on Japan, South Asia and Myanmar. As the Singapore member firm of the Lex Mundi Network, we are able to offer access to excellent legal expertise in more than 100 countries. Rajah & Tann LLP is firmly committed to the provision of high quality legal services. It places strong emphasis on promptness, accessibility and reliability in dealing with clients. At the same time, the firm strives towards a practical yet creative approach in dealing with business and commercial problems. The contents of this Update are owned by Rajah & Tann LLP and subject to copyright protection under the laws of Singapore and, through international treaties, other countries. No part of this Update may be reproduced, licensed, sold, published, transmitted, modified, adapted, publicly displayed, broadcast (including storage in any medium by electronic means whether or not transiently for any purpose save as permitted herein) without the prior written permission of Rajah & Tann LLP. Please note also that whilst the information in this Update is correct to the best of our knowledge and belief at the time of writing, it is only intended to provide a general guide to the subject matter and should not be treated as a substitute for specific professional advice for any particular course of action as such information may not suit your specific business and operational requirements. It is to your advantage to seek legal advice for your specific situation. In this regard, you may call the lawyer you normally deal with in Rajah & Tann LLP or the Knowledge & Risk Management Group at eoasis@rajahtann.com. 5 Rajah & Tann LLP

When An Agreement Is Binding Or Subject To Contract

When An Agreement Is Binding Or Subject To Contract Introduction In the course of negotiations, parties may come to an oral agreement, which may or may not envisage the execution of subsequent documentation.