Winding up under provision of trust deed
Open ↗44.—(1) Subject to subsection (2), the trust deed of a registered business trust may provide that the registered business trust is to be wound up —(a)
at a specified time;
(b)
in specified circumstances; or
(c)
on the happening of a specified event.
(2) For the purposes of this section and section 47, any provision of the trust deed of a registered business trust that purports to provide that the registered business trust is to be wound up if the particular company which is acting as the trustee‑manager of that registered business trust ceases to be the trustee‑manager of that registered business trust, has no effect.
(3) The trustee‑manager of a registered business trust may wind up the registered business trust —(a)
if the trust deed of the registered business trust provides that the business trust may or is to be wound up at a specified time, in specified circumstances or on the happening of a specified event;
(b)
the specified time, circumstance or event has arisen; and
(c)
the winding up of the registered business trust has been approved by a majority of the number of votes of unitholders of the registered business trust who, being entitled to do so, vote in person or, where proxies are allowed, by proxy present at a general meeting convened in accordance with the requirements under Division 1 of Part 9.
Winding up at direction of unitholders
Open ↗45.—(1) Despite any provision in the trust deed of a registered business trust, the trustee‑manager of the registered business trust must wind up the registered business trust upon the passing of a special resolution by the unitholders of the registered business trust at a general meeting convened in accordance with Division 1 of Part 9 directing the trustee‑manager to wind up the registered business trust.
(2) Any trustee‑manager of a registered business trust which contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction.
Winding up ordered by court
Open ↗46.—(1) A registered business trust may be wound up under an order of the court on the application of —(a)
the trustee‑manager of the registered business trust;
(b)
a director of the trustee‑manager of the registered business trust;
(c)
a unitholder of the registered business trust; or
(d)
a creditor of the registered business trust on the basis of subsection (2)(b).[42/2005]
(2) The court may, on an application mentioned in subsection (1), order the trustee‑manager of a registered business trust to wind up the registered business trust if —(a)
the court thinks it is just and equitable to make the order; or
(b)
within 3 months before the making of the application for the order, an enforcement order was issued to enforce a judgment, a decree or an order obtained in court, whether in Singapore or elsewhere, in favour of a creditor of the registered business trust and the enforcement order has been returned unsatisfied,
and upon such order, the trustee‑manager must wind up the registered business trust.
[Act 25 of 2021 wef 01/04/2022]
(2A) On an application for winding up on the ground specified in subsection (2)(a), instead of making an order for the winding up, the court may, if it is of the opinion that it is just and equitable to do so, make an order for the interests in units of one or more unitholders to be purchased by the trustee-manager of the registered business trust, or by one or more other unitholders of the registered business trust, on terms to the satisfaction of the court.[Act 30 of 2022 wef 12/03/2024]
(3) The court may order the trustee‑manager of a registered business trust to wind up the registered business trust on the application of the Authority on any of the following grounds:(a)
the registered business trust has carried on, promoted or participated in a pyramid selling scheme or arrangement within the meaning of section 2(1) of the Multi-Level Marketing and Pyramid Selling (Prohibition) Act 1973 in contravention of that Act;
(b)
the registered business trust is being used for an unlawful purpose or for purposes prejudicial to public peace, welfare or good order in Singapore or against national security or interest; or
(c)
a report has been made in respect of the registered business trust by an inspector appointed by the Minister under section 103,
and upon such order, the trustee‑manager must wind up the registered business trust.
[42/2005]
(4) On the making of a winding up order by the court under subsection (2), the applicant must within 7 days —(a)
lodge a copy of that order with the Authority; and
(b)
cause a copy of that order to be served upon the secretary of the trustee‑manager of the registered business trust or upon any other person and in any manner that the court may direct.[42/2005]
(5) Any person who contravenes subsection (4) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $25,000 and, in the case of a continuing offence, to a further fine not exceeding $2,500 for every day or part of a day during which the offence continues after conviction.
Winding up of registered business trust
Open ↗47.—(1) Subject to section 48(1), the trustee‑manager of a registered business trust must ensure that the registered business trust is wound up in accordance with the trust deed of the registered business trust or an order mentioned in section 48(2) in all cases of winding up, including but not limited to the following situations:(a)
the trust deed provides that the registered business trust is to be wound up at a specified time, in specified circumstances or on the happening of a specified event and —(i)
the specified time, circumstance or event has arisen; and
(ii)
the winding up of the registered business trust has been approved by a majority of the number of votes of unitholders of the registered business trust who, being entitled to do so, vote in person or, where proxies are allowed, by proxy present at a general meeting convened in accordance with the requirements under Division 1 of Part 9;
(b)
the unitholders of the registered business trust pass a special resolution directing the trustee‑manager to wind up the registered business trust; or
(c)
the court makes an order directing the trustee‑manager to wind up the registered business trust.
(2) Where a registered business trust is to be wound up, the trustee‑manager of the registered business trust must —(a)
give written notice of the proposed winding up to the Authority within 7 days after the passing of the resolution referred to in subsection (1)(a) or (b); and
(b)
within 10 days after the passing of the resolution referred to in subsection (1)(a) or (b), give notice of the resolution in one or more newspapers circulating in Singapore.
(3) Upon the completion of the winding up of a registered business trust in accordance with subsection (1), whether proposed by the trustee‑manager of the registered business trust or otherwise, the trustee‑manager must give written notice of the completed winding up to the Authority within 2 business days of the completion.
(4) Any trustee‑manager of a registered business trust which contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction.
(5) Any trustee‑manager of a registered business trust which contravenes subsection (2) or (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $25,000 and, in the case of a continuing offence, to a further fine not exceeding $2,500 for every day or part of a day during which the offence continues after conviction.
Court may make other orders for winding up
Open ↗48.—(1) The court may, by order, appoint a licensed insolvency practitioner to take responsibility for winding up a registered business trust in accordance with the trust deed of the registered business trust and any order mentioned in subsection (2) if the court thinks it necessary to do so for reasons including the cessation of the trustee‑manager of the registered business trust to exist or the failure of the trustee‑manager to properly discharge its obligations in relation to the winding up, and upon such appointment by the court and despite any provision in the trust deed, the trustee‑manager no longer has any authority or power to wind up the registered business trust.[40/2018]
(2) The court may, by order, give directions as to —(a)
the procedures for the winding up of a registered business trust if the court thinks it necessary to do so for reasons including the inadequacy or impracticability of the provisions in the trust deed of the registered business trust; and
(b)
the powers, duties, obligations and remuneration of the liquidator of a registered business trust.
(3) An order mentioned in subsection (1) or (2) may be made on the application of —(a)
the trustee‑manager of a registered business trust;
(b)
a director of the trustee‑manager of a registered business trust;
(c)
a unitholder of a registered business trust;
(d)
the Authority; or
(e)
a creditor of a registered business trust.
(4) An order mentioned in subsection (2) may be made on the application of the liquidator of a registered business trust.
(5) Upon the completion of the winding up of a registered business trust by a liquidator, the liquidator must give written notice of the completed winding up to the Authority within 2 business days of the completion.
(6) Any person who contravenes subsection (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $25,000 and, in the case of a continuing offence, to a further fine not exceeding $2,500 for every day or part of a day during which the offence continues after conviction.
Unclaimed money to be paid to Official Receiver
Open ↗49.—(1) If the trustee‑manager of a registered business trust that is being wound up or the liquidator of a registered business trust has in its possession or under its control —(a)
any unclaimed or undistributed moneys arising from the trust property of the registered business trust on completion of the winding up of the registered business trust; or
(b)
any unclaimed distribution of profits, income or other payments or returns to unitholders which have remained unclaimed for more than 6 months from the date when the distribution became payable,
the trustee‑manager or the liquidator must pay those moneys to the Official Receiver to be placed to the credit of the Business Trusts Liquidation Account and is entitled to the prescribed certificate of receipt for the moneys so paid and that certificate is an effectual discharge to the trustee‑manager or the liquidator in respect of the moneys so paid.
(2) The court may, on the application of the Official Receiver, order the trustee‑manager of a registered business trust that is being wound up or the liquidator of a registered business trust to submit to the court an account of any unclaimed or undistributed funds, distributions or other moneys in the hands or under the control of the trustee‑manager or the liquidator verified by affidavit and may direct an audit thereof and may direct the trustee‑manager or the liquidator to pay those moneys to the Official Receiver to be placed to the credit of the Business Trusts Liquidation Account.
(3) The interest arising from the investment of the moneys standing to the credit of the Business Trusts Liquidation Account must be paid into the Consolidated Fund.
(4) For the purposes of this section, the court may exercise all the powers conferred by this Act with respect to the discovery and realisation of the property of the registered business trust and the provisions of this Act with respect thereto apply, with such adaptations as are prescribed, to proceedings under this section.
(5) This section 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 trustee‑manager of a registered business trust that is being wound up or the liquidator of a registered business trust or any other person.
(6) If any claimant makes any demand for any money placed to the credit of the Business Trusts 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 a like 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 subsection (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 Business Trusts 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 Business Trusts Liquidation Account to the extent to which the unclaimed moneys have not been under this section 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.
Responsibility for fraudulent trading
Open ↗50.—(1) If, in the course of the winding up of a registered business trust or in any proceedings against the trustee‑manager in its capacity as the trustee‑manager of the registered business trust, it appears that an officer of the trustee‑manager who was knowingly a party to the contracting of a debt on behalf of the registered business trust had, at the time the debt was contracted, no reasonable or probable ground of expectation, after taking into consideration the other liabilities of the registered business trust (if any) at the time, of the trustee‑manager being able to pay the debt from the trust property of the registered business trust, the officer shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 2 years or to both.
(2) Where a person has been convicted of an offence under subsection (1) in relation to the contracting of such a debt mentioned in that subsection, the court, on the application of the liquidator or any creditor of the registered business trust or unitholder of the registered business trust, may declare that the person is to be personally responsible without any limitation of liability for the payment of the whole or any part of that debt.
(3) If, in the course of the winding up of a registered business trust or in any proceedings against the trustee‑manager in its capacity as the trustee‑manager of the registered business trust, it appears that any business of the registered business trust has been carried on with intent to defraud creditors of the registered business trust or creditors of any other person or for any fraudulent purpose, the court, on the application of the liquidator or any creditor of the registered business trust or unitholder of the registered business trust, may declare that any person who was knowingly a party to the carrying on of such business of the registered business trust in that manner is to be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities incurred by the trustee‑manager on behalf of the registered business trust as the court directs.
(4) Where the court makes any declaration pursuant to subsection (2) or (3), the court may give any further directions for the purpose of giving effect to that declaration, and in particular may make provision for making the liability of any person (P) under the declaration a charge on any debt or obligation due from the trustee‑manager in its capacity as trustee‑manager of the registered business trust to P, or on any charge or any interest in any charge on any trust property of the registered business trust held by or vested in P or any corporation or person on P’s behalf, or any person claiming as assignee from or through P or any corporation or person acting on P’s behalf, and may from time to time make any further order that is necessary for the purpose of enforcing any charge imposed under this subsection.
(5) In subsection (4), “assignee” includes any person to whom or in whose favour, by P’s directions, 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.
(6) Where any business of a registered business trust is carried on with the intent or for the purpose mentioned in subsection (3), 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 $250,000 or to imprisonment for a term not exceeding 7 years or to both.
(7) Subsection (6) applies to a registered business trust whether or not it has been, or is in the course of being, wound up.
(8) This section has effect even though the person concerned is criminally liable apart from this section in respect of the matters on the ground of which the declaration is made.
(9) On the hearing of an application under subsection (2) or (3), the liquidator may give evidence or call witnesses.
Source: Singapore Statutes Online (Attorney-General's Chambers), © Government of Singapore.
