Hi,
I have failed to lodge
the Annual Return and hold AGM since financial year 2001. ACRA
is after me for more than 50 months. May I have your thoughts? If
you could, play the devil advocates. I have written many emails to
ACRA with at least 100 pages of correspondence. The latest one to
ACRA was dated 13 Jun'08, which is partly reproduced as in
below:
Summons No. 2007068049 against Phua
Tiak Chuang of 3P Access Pte Ltd:
Two Charges under the Companies Act
for financial year 2002:
1.
Fail to hold AGM on or about 31 Dec’03 under Section
175(4).
2.
Fail to lodge the Annual Return on or about
31 Jan’04 under Section
197(7).
The
Perspective:
1.
The Company was incorporated as Singstar Datanet Pte Ltd in 1997.
Its name was changed to its current name, 3P Access Pte Ltd, in 27
Jun’01 for the purpose of a Joint Venture. At that time, Johnson Ho
introduced myself to Cai Mao(a director the company since 1998),
and Derek Goh and the 3 parties decided to start a Joint
Venture(JV) business together.
2.
The nominal capital of the Company is $132,000, divided into
132,000 shares of $1 each. The amount of the capital paid up or
credited as paid up is $132,000.
3.
The JV agreement was signed on 4 July 2001 and comprised 2 groups
of shareholders with its own appointed directors. I was in the
1st group and hold 78% of the shares in the Company with
Winston Lau and myself as the appointed directors. Global Voice Pte
Ltd (GV) was in the 2nd group and hold the remainder,
22% of the shares in the Company, with Cai Mao remained as a
director. Derek Goh was a major shareholder of GV. GV had an
internet telephony and international communication services in
Singapore and the Company was to engage in the business of
marketing and promoting GV’s services.
4.
I was also appointed as the General Manager of the Company. The JV
business was operated from GV’s premises and around 7 staff was
recruited.
5.
In Dec’01, the JV business was not doing as well, and although
there was a cash balance of $30,000 left in the bank account, there
was an outstanding debt of $35,000. The debt included 7 staff
salaries and more than 6 creditors. GV was one of the
creditors.
6.
I proposed several restructuring plans for the Company, however,
the plans were not agreed to. The Company ceased operations on 15
Jan’02 and the staff were not paid their salaries for Dec’01 and
Jan’02. The Company had unsettled debts and liabilities of around
$35,000 when it ceased operations.
7.
I suggested that the Company be liquidated since the JV Business
had ceased. For this purpose, I had engaged a liquidator with my
own money to advise the Company. GV was not agreeable to the
liquidation unless the debt of $17,397.91 owing to them was settled
by the Company before other creditors. I did not agree to the
amount claimed by GV, and in any event, I felt strongly that if any
of the creditors were to be paid, the staff had to be paid first
and not the shareholders. I, being the co-signatory of the cheques
for the Company with GV, refused to sign the cheque to pay
GV.
8.
The independent liquidator needed to see the financial statements
of the Company before he could give his advice on the liquidation
of the Company. However, I was barred from having access to the
accounts of the Company unless I agreed to sign the cheque to pay
GV. I refused to sign the said cheque.
9.
All this while, I made many attempts to see Derek Goh of GV so as
to convince Derek Goh to liquidate the Company voluntarily. I was
not successful in my attempts.
10.
On or about Jan’03, Johnson Ho called me and informed me that Mr
Derek Goh was agreeable to resolve the Company expeditiously. Cai
Mao and I got together for a discussion. Essentially, it was
proposed that the monies left in the bank account was to be
utilised towards paying the auditors to file the annual returns,
that I will forego my claim for salary, and to convince the other
creditors to accept a proportional payment of the debt. Thereafter,
GV was to transfer its shares to me, and Cai Mao be allowed to
resign as the Company director. The proposal was rejected by Ng
Cher Yan, the company secretary for the Company. The alternative
proposal made by me to liquidate the Company using the monies left
in the bank account was met with silence.
11.
Winston Lau and I then received a notice from ACRA. The notice
stated that Cai Mao had ceased to be a director of the Company
since 25 Sep’02 and the Company had failed to file the Notice of
Change of Directors with ACRA within the requisite time and was
therefore liable to a fine. I was shocked with this new turn of
events as both Winston and I did not know of Cai Mao’s resignation,
and as late as Jan’03 to Mar’03, the company restructuring
proposals had touched upon Cai Mao’s resignation as director only
after the matters of the Company had been settled. Immediately, I
took the issue up with ACRA and lodged my objections to the
resignation of Cai Mao as a director of the Company.
12.
Until today, no audited accounts of the Company had been filed
since 2001. On 24 Mar’04, Winston and I have since been summoned to
Court to answer to ACRA summons for financial year 2001. Cai Mao
was not issued with the summon although he was a director in the
financial year 2001.
13.
I wrote to ACRA in Apr’04 to put into perspective the make-up of
the Company. In the write-up, I had included an email from Cai Mao
dated 25 Jan’03 detailing about point (10) above. As this email was
dated 25 Jan’03, Cai Mao could not have ceased to be a director on
25 Sep’02 as mentioned in point (11) above.
14.
On 21 Apr’05, I called for an EOGM for a members’ voluntary
liquidation to be resolved. Notice of the EOGM was given to GV but
GV failed to attend the meeting.
15.
I had written to ACRA on 27 Apr’05 and said that the cause of the
delay was due to ACRA acceptance of Cai Mao’s
resignation.
16.
In a letter dated 11 May’05, I had asked GV, through my solicitor,
if they were agreeable to a voluntary winding up of the Company as
the Articles of the Company (as set out in the JV agreement)
provides that the Company needs to obtain an affirmative vote of
80% by the shareholders before a voluntary winding up can commence.
There was no response from GV.
17.
ACRA and I had agreed earlier in May’05 to allow an adjournment so
that I could work on the voluntary liquidation. ACRA objected
during the appearance in court. I was shocked at ACRA
inconsistency.
18.
On 20 May’05, ACRA was impatience and wrote, “…the case has dragged
on too long. I regret that we are unable to accede to your request
to compound the charges as the situation has not changed since the
last adjournment. Please note that we will NOT consent to any
further adjournment of the summonses against both the
directors.”
19.
On 24 May’05, ACRA had made up the mind and wrote, “…as I have
advised you previously, there is not need to keep us updated
regularly. Our position and course of action has already been made
know to you.”
20.
I gave ACRA a summary of recent events on and about 25 May’05. In
addition, I wrote that I could not understand why ACRA had to
accept Cai Mao’s resignation.
21.
On 16 Jun’05, my solicitor had filed a winding up petition for the
Company in court, reference CWU120/2005/H.
22.
On 17 Jun’05, I had written to ACRA for an adjournment as I was in
the midst of the proceeding in winding up the Company. In addition,
I wrote that by accepting Cai Mao’s resignation, ACRA had removed the need of GV and
Cai Mao to co-operate.
23.
At the 2nd session in high court on 16 Aug’05 to wind up
the Company, we had to withdraw the petition. The company
secretary, Ng Cher Yan, had registered myself as the majority
shareholder with 78% of the shares in the Company and transferred
my shares to BlueSky Access in Nov’01. I was the major shareholder
of BlueSky Access. Until today, in the ACRA business profile, GV
still hold 100% of the shares. The petition was in my
name.
24.
In Jan’06, my solicitor was working on the voluntary winding up of
the Company with the solicitor of GV.
25.
In May’06, the voluntary winding up did not work out. I wrote to
ACRA to request for filing of Annual Return without AGM and with an
unaudited account.
26.
ACRA and I met on 17 Jun’06 to discuss further on the above point
(25). We had a grave concern on the separate account that I was
trying to build.
27.
Winston and I had been summoned to Court on 13 Sep’07 to answer to
ACRA summons for financial year 2002. Cai Mao was not summoned
although he was a director for financial year 2002.
28.
The Pre-Trial Conference(PTC) was set up on 19 Nov’07. As listed
below, ACRA asked for 5 adjournments on:
·
19 Nov’07 for ACRA to look into my
reply.
·
7 Jan’08 as the attending
ACRA officers did not know about the issues.
·
21 Jan’08 for ACRA to summon Cai
Mao.
·
18 Feb’08 as ACRA said the case was complicated
and more time needed.
·
14 Apr’08 as ACRA said about new evidence. ACRA
had not summoned Cai Mao. ACRA requested for 12 weeks adjournment
but was given 6 weeks.
29.
ACRA wrote to me on 20 May’08 and said that the new evidence was
surfaced by me. They had examined in detail and Winston and I would
have to rectify the summons for financial year 2002.
30.
I was shocked. The said evidence in point (29) above, was given to
ACRA in Apr’04. It was an email written by Cai Mao on 25 Jan’03,
which was also highlighted in point (13) above.
31.
In the Pre-Trial Conference on 26 May’08, I requested ACRA to show
the new evidence. The request was rejected. A trial date was set on
30 June 2008, Court 14, at 10am.
My
thought:
ACRA is
unfair. ACRA only summon Winston and me. ACRA did not
summon Cai Mao for the financial year 2001 and 2002, despite that
ACRA had accepted Cai Mao as the director for these 2 years in the
Company.