Allen Law breached fiduciary duties as director of Park Hotel Management, High Court rules

Business Times

17 hours ago

[SINGAPORE] Businessman and hotelier Allen Law breached his fiduciary duties owed to his company Park Hotel Management (PHMPL) which is now in liquidation, a Singapore High Court judge ruled on Wednesday (Aug 6).
'When his company was in financial peril, he transferred its viable assets and businesses (effectively) to himself at a gross undervalue and manipulated the books of the company to eliminate receivables owed by him and his entities, leaving the creditors with nothing,' said Justice Hri Kumar Nair.
Law had transferred all of PHMPL's valuable assets to three companies under his control in March 2021; in doing so, the founder of Park Hotel Group did the opposite of what the law demands, Justice Nair said.
'Law showed contempt for his fiduciary obligations – his breaches are beyond peradventure. While PHMPL may have failed because of events beyond his control, his response was entirely regrettable. He appropriated PHMPL's assets for himself and manipulated PHMPL's books to hide his subterfuge,' the judge said.
' His conduct, both in relation to the 'restructuring' and his defence of these proceedings, was dishonest and dishonourable. '
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Justice Hri Kumar Nair
'His conduct, both in relation to the 'restructuring' and his defence of these proceedings, was dishonest and dishonourable. His first and only thought was to benefit himself.'
As a result of the Covid-19 pandemic, the tourism, hospitality and F&B industries suffered greatly, Justice Nair noted.
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At first, PHMPL's subsidiaries, Park Hotel CQ (PHCQ) and Grand Park OR (GPOR), received temporary relief under the Covid-19 (Temporary Measures) Act from their contractual obligations to pay rent. PHCQ operated the Park Hotel Clarke Quay, while GPOR ran the Grand Park Orchard hotel.
However, by November 2020, when the Covid-19 relief ended, PHCQ and GPOR's positions had deteriorated further, Justice Nair said. 'No solution was in sight… Mr Law knew that PHCQ and GPOR were doomed.'
The landlord of GPOR, an entity known as NPP which is linked to Chinese businessman Du Shuanghua's Bright Ruby Resources, 'consistently rejected' Law's requests to revise the terms of its lease.
Said Justice Nair: 'While there were some negotiations with Ascendas Hospitality Reit (ART) to adjust the rent and security deposit under Park Hotel Clarke Quay's lease, nothing materialised.'
On Feb 17, 2021, PHMPL's financial controller Tang Buck Kiaw provided Law with calculations that showed both PHCQ and GPOR were expected to incur significant net losses in 2021 if the group's subsequent application for Covid-19 relief were denied.
Just days later, on Feb 20, NPP issued a letter of demand to GPOR for S$1.4 million, which triggered immediate action from Law.
On Feb 22, Law wrote to Tang in an e-mail, saying: 'Sounds like we have to proceed with the restructuring.'
'That 'restructuring' was the genesis of these proceedings,' Justice Nair said.
The restructuring plan
The first part of the restructuring was PHMPL's disposal of its assets to companies linked to Law via four written agreements, the judge said.
The agreements, all dated around March 2021, resulted in PHMPL transferring several hotel management agreements; the 'Park Hotel' and 'Grand Park' brands; 135 trademarks and the holding company behind Yan restaurant and the Smoke & Mirrors bar; as well as a training academy called Singapore Institute of Hospitality, to the three companies which were ultimately owned by Law.
All of PHMPL's assets, excluding PCHQ and GPOR, were transferred for a total sum of S$3.4 million and US$40,000.
'The restructuring… was in essence a plan to move PHMPL's revenue-generating assets to the defendant companies, (that is,) to himself; eliminate all liabilities owed to PHMPL by him and entities owned by him; and leave PHMPL a shell carrying only substantial liabilities,' Justice Nair said.
Evidence has established that Law 'orchestrated the restructuring with Tang as his trusted aide', the judge added.
Almost immediately after receiving the Feb 22, 2021, e-mail, Tang responded, asking Law: 'Who can I talk to (in order) to get this started quickly?'
On the same day, Law prepared a chart setting out the new structure of the business, Justice Nair said.
'It is evident that the purpose of the restructuring was to protect PHMPL's assets from its creditors.
'Law's plan was in fact summarised in Tang's e-mail to him… where she wrote: '(we) have to do it such that (NPP and ART have) no chance to unwind.''
Tang admitted under cross-examination that she meant that she wanted to complete the transfer of assets and businesses to Law's companies so that the creditors could not unwind them.
She also admitted that '(there) was a sense of urgency' because it was only a matter of time before creditors would be at the door, Justice Nair said.
In June 2021, NPP filed an application to wind up PHMPL, with the company entering into liquidation on Jul 2 .
When was Park Hotel insolvent?
One of the key issues that arose in this case was when Park Hotel Management became insolvent.
Singapore's Insolvency, Restructuring and Dissolution Act considers that if a company enters into undervalued transactions within a three-year period before it is wound up, liquidators can apply to the court to recover assets that have been transferred to another party.
Justice Nair said that when he heard parties in court, Law's legal team accepted that PHMPL was insolvent by March 2021.
'They departed from that position in their closing submissions and adopted Law's evidence at trial where he maintained that PHMPL still had a viable business even after the completion of the agreements.'
The test for insolvency is whether the company's current assets exceed liabilities within a 12-month timeframe. Justice Nair said there was 'no doubt that PHCQ and GPOR were insolvent or financially parlous as at December 2020.'
In any event, PHMPL was insolvent at the latest by Feb 20, 2021, when NPP issued the demand for S$1.4 million, as it was 'indisputable' that the corporate guarantees would shortly be called on given that GPOR had 'neither the means nor the intention' of meeting those demands.
In analysing the evidence provided by the defence's valuation expert on the value of PHMPL's assets, Justice Nair said that his analysis was 'affected by other material and adjustments he had made, which were highly selective and problematic'.
Notably, Justice Nair decided that the PHMPL trademarks were worth S$1.9 million, despite them being purchased by Law's companies for just S$1.
Backdating of transfers
The second part of the plan, said Justice Nair, was to 'cause PHMPL to declare and backdate substantial dividends in Law's favour and to effect a series of transfers and set-offs in PHMPL's books, most of which were also backdated, to eliminate his and his entities' liabilities to PHMPL'.
Around March 2021, Law got PHMPL to declare a S$22 million dividend in his favour, but backdated this to September 2020. The dividend was said to be repayment for a director's loan that Law had extended to PHMPL.
During the trial, PHMPL's finance manager testified that Tang had instructed him to 'reduce or remove the account balances' and 'to look into accounts and see which are the ones that can be fully knocked off'.
Another S$5.9 million was declared in favour of Law in April, after PHMPL's assets and businesses had been disposed of and PHMPL had no ability to earn revenue, Justice Nair said.
Significantly, Tang expressly warned Law that declaring the $5.9 million dividend would be viewed as preference over creditors.
The liquidators will have two weeks to file submissions on the reliefs they are seeking from Law and on costs. Law's legal team will have two weeks to respond.
A representative of the defendants said: 'This remains a legacy matter arising from the exceptional circumstances of Covid-19 lockdowns in 2020 and their unprecedented impact on the hospitality sector. The judgment is being reviewed and appropriate next steps are being considered.'
A team of lawyers, led by Allen & Gledhill's William Ong, represent the liquidators. Law and his companies are represented by lawyers from TSMP Law Corporation, led by Thio Shen Yi.
Park Hotel Clarke Quay has since been rebranded as The Robertson House by The Crest Collection and is managed by The Ascott Limited. Grand Park Orchard Hotel is being operated as Pullman Singapore Orchard.