Possible Next Steps for Hyflux Investors

I am not a lawyer and neither do i have any experience in litigation. After reading the news about the charges filed against the CEO, CFOs and directors for various disclosure-related issues like omissions in the 2011 offer information statement and non compliance with accounting standards, it brought me back to the time when i read the following portions of the Securities and Futures Act (SFA).

https://www.channelnewsasia.com/singapore/hyflux-former-ceo-olivia-lum-cfo-directors-charged-court-tuaspring-3079541

https://www.businesstimes.com.sg/companies-markets/former-hyflux-ceo-cfo-independent-directors-charged

https://www.straitstimes.com/business/ex-hyflux-ceo-olivia-lum-ex-cfo-and-four-others-charged-for-violations-of-securities-and-futures-act

Civil liability for false or misleading statements

254.—(1)  Where an offer of securities or securities‑based derivatives contracts is made in or accompanied by a prospectus or profile statement, or, in the case of an offer referred to in section 280, where a prospectus or profile statement is prepared and issued in relation to the offer, and — (a) a false or misleading statement is contained in — (i) the prospectus or the profile statement; or (ii) any application form for the securities or securities‑based derivatives contracts; (b) there is an omission to state any information required to be included in the prospectus under section 243 or there is an omission to state any information required to be included in the profile statement under section 246, as the case may be; or (c) there is an omission to state a new circumstance that — (i) has arisen since the prospectus or the profile statement was lodged with the Authority; and (ii) would have been required by section 243 to be included in the prospectus, or required to be included in the profile statement under section 246 (as the case may be) if it had arisen before the prospectus or the profile statement was lodged with the Authority, the persons referred to in subsection (3) are liable to compensate any person who suffers loss or damage as a result of the false or misleading statement in or omission from the prospectus or the profile statement, even if such persons, unless otherwise specified, were not involved in the making of the false or misleading statement or the omission. [4/2017] (2)  For the purposes of subsection (1), a false or misleading statement about a future matter (including the doing of, or the refusal to do, an act) is taken to have been made if a person makes the statement without having reasonable grounds for making the statement. (3)  The persons liable are — (a) the person making the offer; (b) where the person making the offer is an entity — (i) each director or equivalent person of the entity; and (ii) if the entity is also the issuer, each person who is, and who has consented to be, named in the prospectus or profile statement as a proposed director or an equivalent person of the entity; (c) where the issuer is controlled by the person making the offer, one or more of the related parties of the person making the offer, or the person making the offer and one or more of that person’s related parties — (i) the issuer; (ii) each director or equivalent person of the issuer; and (iii) each person who is, and who has consented to be, named in the prospectus or the profile statement as a proposed director or an equivalent person of the issuer; (d) an issue manager to the offer of the securities or securities‑based derivatives contracts who is, and who has consented to be, named in the prospectus or the profile statement; (da) an underwriter (but not a sub‑underwriter) to the issue or sale of the securities or securities‑based derivatives contracts who is, and who has consented to be, named in the prospectus or the profile statement; (e) a person named in the prospectus or the profile statement with the person’s consent as having made a statement — (i) that is included in the prospectus or the profile statement; or (ii) on which a statement made in the prospectus or the profile statement is based, but only in respect of the inclusion of that statement; and (f) any other person who made the false or misleading statement or omitted to state the information or circumstance (as the case may be) but only in respect of the inclusion of the statement or the omission to state the information or circumstance.

From a laymans point of view just based on reading superficially the passage above, it does look like some investors do have a recourse in their investments. Certainly best to consult a lawyer to know the details better.

However, a lawyer is very very expensive for the ordinary investor in Singapore due to lack of support from the TOP, like litigation funding, contingency fees or just plain educating and informing the general public on their legal rights and recourse for matters related to investments. 

To be clear, i am not refering to pro bono, small claims tribunal e.t.c which is for the segment of the population who can't afford to invest normally , relating more to criminal law. and for small sums like below $10k.  

I am refering to the lack of support and recourse to civil law matters and the middle class Singaporeans who are neither too poor or too rich to afford legal services without the affordances of litigation funding and  contingency fees.

Anyway, there seems there is a group of very ordinary middle class Singaporeans trying to solve this problem on their own. 

https://governanceforstakeholders.com/2022/11/17/re-posting-a-message-on-behalf-of-a-group-of-hyflux-preference-shareholders-and-perpetual-securities-holders/

Can we use how Reit Manager Fees are structured to determine the Reit Perfomance?

Some investors look at how the Reit managers are compensated to determine whether there is an alignment of interest. 

The logic is, if the interest is aligned, then the long run performance of the Reit should be better than if it wasn't. 

This makes sense.

If investors feel the pain when their Reit's lose money, at the very least, the Reit managers should, rightly, also share in the misery. 

The opposite is also true, if investors make money, Reit manager should be rewarded. 

The management fees of Reit managers come in two components:

• Base fee
• Performance fee

Acquisition and disposal fees are largely similar across the Reits, 1%  of acquired property value and 0.5% of disposed property value.

Base Fee

Performance Fee

In my previous article, i found that the growth of DPU over time is the single most important metric to judge a Reit's performance as a growing DPU would naturally result in a growing Reit price too.

This makes sense as people buy Reits for their distributions. 

All the financial chicanery will over time be laid bare in the DPU.

I have compiled the DPU trend of Reits here on this page. 

Do you think the structure of the Reit Manager fees affect the DPU over time?

3 Reits stood out for me.

• Lippo Mall Trust
• Keppel Reit
• Ara Logistic Trust

If you look at their DPU trend over time, they have been trending down. 

Yet, they have been paid for performance by way of performance fees.

Lippo Mall Trust

Lippo Mall Trust

And to put things in perspective, its performance fee is nearly as much as it's base fee for Lippo in cash.

Keppel Reit

Ara Logistic Trust