Winding-up petitions are distinct proceedings not subject to stay under section 10 of the Arbitration Act 2005.

Introduction

[1] This is an application by the respondent for a stay of winding-up proceedings pending reference to arbitration pursuant to s 10 of the Arbitration Act 2005 , as documented in encl 18 which also included the respondents application for a striking out of the petition, which was to be heard separately as agreed by the parties.

[2] At the conclusion of the hearing, I declined the stay application, and stated my principal reasons for the decision. This judgment contains the full reasons for the dismissal of the same, and discusses the relevance of s 10 of the Arbitration Act 2005 to winding-up proceedings.

Key Background Facts

[3] The petitioner is a company incorporated under the Labuan Companies Act 1990 . It is the registered owner of two vessels, namely Semua Perdana and Semua Perkasa which had been chartered by the respondent, under two separate bareboat charters, both dated 25 February 2008 (collectively, "the Bareboat Charters"). However, it was claimed that the respondent had defaulted under the Bareboat Charters, and the outstanding hire amounts remained unpaid by the respondent.

[4] The winding-up petition is thus premised upon the petitioners contention that the respondent had failed to make various payments of hire rate under Clause 33(i) of the Bareboat Charters, thus constituting a charter-party event of default under Clause 35 (i) of the Bareboat Charters. The petitioner contended that a number of repayment proposals were discussed between the parties, but these were not successful. The debt owed by the respondent to the petitioner is said to stand at USD13,064,272.00.

[5] Following the presentation of a winding-up petition against the respondent, the latter filed encl 18, which contains two parts. The first is the instant application for stay pending arbitration. The second is an application to strike out the petition which was to have been heard subsequent to the first. This judgment concerns the former.

Essence Of Submissions Of Parties

[6] The respondent, being the applicant in this encl 18 on the stay application takes the position that the alleged dispute concerning the non-payment of hire clearly falls within the arbitration clause of the Bareboat Charters for the dispute to be resolved by way of arbitration in Singapore under the Rules of Singapore International Arbitration Centre.

[7] The respondent emphasises that s 10 of the Arbitration Act 2005 imposes a mandatory obligation for a stay of proceedings to be granted when the subject matter of the suit is subjected to an arbitration agreement.

[8] The petitioner, on the other hand, not unexpectedly maintains a diametrically opposite stance. The petitioner submits that there is no dispute. It does not deny that the parties have agreed to refer "any dispute" to arbitration, but contends that there is no dispute between the parties, for there never was any disagreement as to the debt due and owing to the petitioner by the respondent.

[9] The petitioner additionally submits that this stay application is made mala fide, for it was filed for the sole purpose of adducing further evidence in an attempt to oppose and further delay the hearing of the petition. The petitioner also claimed that the respondent had never once, before the service of the petition, raised the issue of referring anything to arbitration, despite the arbitration clause that it now sought to rely upon.

Evaluation And Findings Of This Court

A Matter Subject To Arbitration?

[10] This is a stay application under s 10 of the Arbitration Act 2005 . That provision must therefore be the starting point. Section 10 (1) of the ("the AA ")