eSys Technologies Pte Ltd v nTan Corporate Advisory Pte Ltd

eSys Technologies Pte Ltd v [2013] SGCA 27
nTan Corporate Advisory Pte Ltd
construed and, indeed, take its meaning from the rationale, spirit as well as
context underlying those words. The informal standstill does not – and cannot
– constitute a “restructuring” in the manner contemplated in the Engagement
Letter between the parties as it was nothing more than a temporary
arrangement that could be resiled from at any time; put simply, it was an
arrangement that had no real structure or framework or system as such. The
absence of a legal framework immediately undermines the desideratum –
indeed, necessity – of a systematic change in the structure of either the
operational activities and/or financial arrangements of the Appellant; which
change is, in our view, a datum or fundamental requirement or prerequisite
before a “restructuring” can be said to have taken place within the meaning of
the Engagement Letter between the parties.
67 No one can gainsay the fact that, as a result of the Respondent’s efforts
through Mr Tan at the Meeting, some breathing space was obtained for the
Appellant. However, how long that breathing space would last and how much
“commercial oxygen” would result was (as we have noted) unclear. The
Respondent should undoubtedly be remunerated for its efforts in accordance
with the account ordered above (at [50]) for work done in this particular
respect under Time Cost Fees, but it is clear that it is not entitled to the
additional remuneration by way of a VAF as there had been no “restructuring”
for the reasons set out above. In the circumstances, we find that there had been
no “restructuring” within the meaning of the Engagement Letter between the
parties and the Appellant therefore succeeds on this particular issue.
32