SINGAPORE Law and Practice Contributed by: Dorothy Marie Ng, Monica Yip, Tay Peng Cheng and Tan Shao Tong, WongPartnership LLP
stantially high as safeguards on lending have been put in place to prevent borrowers from taking on too much debt. The market for sale of non-performing loans and notes in Singapore exists but it is not a large or very actively traded market. The volume of possible transactions is not high given the rela - tively low number of defaults. However, it is pos - sible that in default workout situations, in a club loan, existing lenders or rescuers supportive of restructuring may buy over the loans or notes held by creditors not supportive of restructur - ing, to reach the majority required to achieve restructuring. 3.7 Subordinating Existing Debt to Newly Created Debt The usual methods of subordination are structur - al subordination and contractual subordination (ie, turnover subordination and subordination of rights of payment in the event of the debt - or’s insolvency). The efficacy of subordination arrangements remains open to question in Sin - gapore, although it is likely that these arrange - ments will be upheld as long as the general body of unsecured creditors is not prejudiced thereby. 3.8 Lenders’ Liability Under Environmental Laws While the Environmental Protection and Man - agement Act 1999 (EPMA) distinguishes between an owner and an occupier (including a lessee), in most circumstances both are liable in the event of pollution. There are also statu - tory presumptions under the EPMA, such as the presumption that the occupier is at fault where toxic substances or hazardous substances are discharged into water. The definition of “occupier” under the EPMA is very broad and includes any “person in occu-
pation of the premises or having the charge, management or control thereof” . It may include a mortgagee who has taken possession of the real estate. 3.9 Effects of a Borrower Becoming Insolvent Under the Companies Act 1967, a company granting security over real estate will be required to file a statement containing the particulars of the charge created with the Accounting and Cor - porate Regulatory Authority, if the charge is cre - ated in Singapore, within 30 days of the creation of the security. If this requirement is not met, the security is void against a liquidator and any creditor of the company. Liquidators and judicial managers have the power to apply to court to set aside pre-liqui - dation transactions that are deemed to be at an undervalue or that constitute an unfair prefer - ence. Under the Insolvency, Restructuring and Dissolution Act 2018, the claw-back period is three years for undervalue transactions and one year for transactions constituting an unfair pref - erence, calculated backwards from the date of commencement of liquidation. Where an unfair preference was given to an associate of the company, the claw-back period extends to two years prior to the commencement of liquidation. 3.10 Taxes on Loans As mentioned in 3.4 Taxes or Fees Relating to the Granting and Enforcement of Security , stamp duty is payable where security is created over real estate or shares, subject to a cap of SGD500, and a registration fee is payable for the registration of the mortgage.
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