High Court: Charges Over Building Agreements Are Valid and Enforceable

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1 High Court: Charges Over Building Agreements Are Valid and Enforceable On 16 March 2011, the Singapore High Court upheld a fixed charge over a building agreement. Such charges are a common feature in Singapore as a means of creating security where a party builds on land pursuant to a licence, in advance of a lease being granted. This is the first case where the legal validity of such security has been challenged, and the decision will be reassuring to industry players. Andre Maniam, SC, Chua Sui Tong and Lim Wei Lee acted for the successful security holder in this landmark decision. Facts Building Agreement between JTC and JDD The security giver was Jurong Data Centre Development Pte Ltd ( JDD ). JDD planned to develop and build a data centre on land owned by the Jurong Town Corporation ( JTC ). JDD and JTC therefore entered into a building agreement ( Building Agreement ) under which JTC granted JDD a three-year licence to enter the property to build the data centre. The Building Agreement also provided that upon completion of the data centre, JTC would grant JDD a 30-year lease over the property. The data centre has been touted as a next-generation green data centre and the largest facility of its kind in Singapore. M+W appointed as main contractor JDD appointed M+W Singapore Pte Ltd ( M+W ) as the main contractor for the project. Some months after construction had commenced, JDD s financial resources ran out and it started defaulting on progress payments to M+W. M+W informed JDD that it was unwilling to continue with the work unless JDD granted it security for outstanding and future construction costs. JDD granted security to M+W In response, JDD executed a Debenture and Security Undertaking in favour of M+W. The Debenture granted M+W a first fixed and floating charge over all of JDD s present and future assets, with the exception of JDD s interest in the property which was to be subject to a mortgage upon the written consent of JTC being obtained. Under the W ongpar tnership LLP (U EN : T08LL0003B) i s a l i mited liability law partnership registered in Singapore under the Limited Li abi l i ty Par tner shi ps Act (Chapter 1 63A).

2 Security Undertaking, JDD undertook to procure the written consent of JTC to the grant of a mortgage over JDD s interest in the property in favour of M+W. Such written consent was obtained, and a few days later, JDD and M+W executed an Assignment of Building Agreement and a mortgage-in-escrow over the property. The mortgage document was executed in escrow as it could not be registered as a legal mortgage since separate title to the property had yet to be issued. JDD challenged the security granted JDD was unfortunately unable to obtain further financing and, on 18 March 2010, it went into provisional liquidation leaving unpaid construction costs owing to M+W. Two weeks later, JDD filed proceedings to challenge the validity of M+W s security (purportedly with consent of the provisional liquidator). A liquidator was subsequently appointed and took over conduct of the proceedings. JDD Had a Proprietary Interest in the Property JDD s interest in the property JDD s main ground for challenging the validity of M+W s security over the property was based on the contention that JDD did not have any proprietary right in the property, but merely a licence. It was thus contended that no charge or mortgage could have been created since JDD had no legal or equitable interest in the property. This argument, if accepted, would have significant implications on the financing of construction projects. This is especially so in Singapore, where many developers (and even purchasers) obtain financing on the back of security over their interest in property under construction and over which no legal title or lease has been issued. Security over building agreements common practice The Court disagreed with JDD s characterisation of the Building Agreement: The Court pointed out that over the past 40 years or more, JTC had been entering into building agreements on similar terms. Developers had in many, if not most, of those cases, borrowed money to finance the construction costs by charging or mortgaging their interests under similar building agreements. Accepting JDD s argument would mean completely overturning conventional wisdom

3 Agreement not merely a licence Most interests can be charged The Building Agreement gave JDD more than a mere licence. Under the Building Agreement, had JDD performed its side of the bargain, JTC would have been obliged to grant a 30-year lease. Accordingly, the Building Agreement amounted to either a licence coupled with an equity, or an agreement to lease. Both of these are property rights, and either was sufficient to confer a valid security on M+W. Finally, the Court also accepted M+W s submission that, in any event, the general principle was that most interests could be subject to a charge so long as they were not purely intangible. Whatever the precise nature of JDD s rights/interest in the property (contractual or proprietary; legal or equitable), M+W could validly obtain a fixed charge over such rights/interest. JTC s Consent to the Security Grounds for challenging JTC s consent JDD also sought to impugn the security by challenging the effectiveness of JTC s consent to the grant of the security. JTC s consent to the grant of security by a licensee is typically required in JTC building agreements. JDD relied on two grounds: JTC allegedly had not consented to the specific debenture document that had been executed; and even if JTC had consented, such consent allegedly was not effective as some terms which JDD alleged were conditions precedent to the consent had not materialised. The Court rejected both arguments. No need to consent to specific document First, the Court found that the standard wording in the Building Agreement that permitted JDD to mortgage or charge [its] interest under this Agreement by way of assignment or debenture subject to JTC s prior written consent was intended to permit JDD to mortgage or charge its interest in the Building Agreement to secure payment of construction costs. As long as JTC had agreed to the creation of the security, it was irrelevant whether it had agreed to specifically to the specific document, which contained the provisions creating the security (whether it was an assignment or debenture)

4 Letter did amount to consent Secondly, the Court held that when JTC s consent letter was considered in its entirety, JDD s argument clearly had no basis. The Court found that there was no doubt that JTC had consented to JDD using its interest in the property as security for the charge or mortgage, and the conditions set out in the letter in effect served only to provide the background and understanding on which the consent was granted. Security Was a Fixed Charge Floating charge granted before liquidation JDD also argued that M+W s security was at best a floating charge and not a fixed charge on the basis that JDD had dealt with the charged assets even after the security documents had been executed. The significance of this ground is that a floating charge is void if it is created within six months of the commencement of a company s winding up unless certain conditions specified in the Companies Act are met. Here, M+W s security was granted within that six-month time frame. Control is key factor The Court held that the security was a fixed, and not a floating, charge. The Court agreed with our submission that the crucial factor in determining whether a charge is fixed or floating is ascertaining whether the chargee had control of the asset concerned (such that the chargor was prevented from removing the charged asset from the security without consent of the chargee) prior to the occurrence of an event of default. The mere fact that the chargor has some permission to deal with the charged asset in the ordinary course of business was not inconsistent with the creation of a fixed charge. Clear restrictions on dealing here In this case, the terms of the security documents clearly provided that JDD was restricted from disposing of the charged assets or removing them from the security without M+W s consent. There was thus the requisite degree of control for the charge to be a fixed charge. The Court also agreed with our submission that any dealings by JDD in breach of the restrictions would not change the nature of the charge from fixed to floating. Accordingly JDD s action against the defendants failed

5 If y ou would like information on this or any other area of law, you may wish to contact the partner at WongPartnership that you normally deal with or contact any of the following partners: ANDRE MANIAM, SENIOR COUNSEL Head Litigation & Dispute Resolution Group DID: andre.maniam@wongpartnership.com CHUA SUI T ONG Partner DID: suitong.chua@wongpartnership.com LIM WEI LEE Partner DID: weilee.lim@wongpartnership.com Website: Sin gapore Financial Services / Corporate / Intellectual Property One George Street #20-01 Singapore Tel: Fax: Litigation & Dispute Resolution / Tax 63 Market Street #02-01 Singapore Tel Fax Ch ina Shanghai Representative Office Unit 5006 Raffles City Office Tower 268 Xizang Road Central Shanghai, PRC Tel: Fax: Middle East A bu Dhabi Branch A l Bateen Towers Building C3 Office (P1) P.O. Box N o A bu Dhabi, UAE Tel: Fax: Licensed by the QFCA Office A mwal Tower, West Bay P.O. Box N o Doha, Qatar Tel: Fax: