Bermuda Supreme Court

Section 103 Of The Companies Act, 1981 – Shares – Compulsory Purchase – Minority Shareholder – Statutory Interpretation

MFP-2000, LP -v- (1) Viking Capital Limited (2) Misa Investments Limited [2014] SC (Bda) 6 Com (7 February 2014)

Ruling On Preliminary Point

Under section 103 of the Companies Act, 1981 ("the 1981 Act"), the holders of not less than 95% of the shares in a company can issue a notice ("a section 103 notice") to acquire the shares of the remaining shareholders on the terms set out in the notice, or, if any of the remaining shareholders applies to the Court, at a price to be set by the Court.

In this matter, the Respondents gave notice to the Applicant under Section 103(1) of their intention to acquire the Applicant's ordinary shares in Viking River Cruises Limited ("the Company") at a price specified in the notice. The notice was dated 29 September 2011 and the Respondents received it on 4 October 2011. The Respondents had the right to issue the notice because they held more than 95% of the ordinary shares in the Company. On 24 September 2012, the Respondents transferred all of their shares in the Company to a company called Viking Cruises Ltd ("VCL"). By an originating summons dated 28 October 2011, which was issued pursuant to Section 103(2), the Applicant applied to the Court to appraise the value of its shares. The point arising by way of preliminary issue is whether the Respondents, who no longer hold more than 95% of the ordinary shares in the Company, are still entitled under Section 103(2) to acquire the Applicant's shares at a price to be fixed by the Court. Justice Hellman noted that the Applicant's construction was the one which best fits the language of the text but, in considering the statutory context (i.e. that the dominant purpose of all these provisions is to facilitate corporate restructuring), the Respondents' construction of Section 103 is the one which best gives effect to that purpose. Justice Hellman found that there was no obvious commercial reason why a purchaser, having served a Section 103 notice, should be required to retain at least 95% of the shares before the appraisal process has been concluded. Conversely, it was noted that there is no economic prejudice to the minority shareholder if, at the date of appraisal or purchase, the purchaser no longer holds at least 95% of the shares or indeed any shares.

Justice Hellman thereby held that Section 103 provides a mechanism whereby the holders of not less than 95% of the shares in the company can purchase the shares of the minority. That means the holders of not less than 95% of the shares at the date when a Section 103 notice is given. The majority need not retain their shares until the minority shares have been acquired or the notice cancelled.

This decision is currently subject to an appeal.


The Bermuda International Conciliation And Arbitration Act, 1993 – Final Award – Enforcement – Public Policy


Reasons For Decision

By Summons dated 4 October 2013, the Applicants applied for leave pursuant to Section 40(1) of the Bermuda International Conciliation and Arbitration Act, 1993 ("the Act") to enter judgment in terms of Consolidated Final Award made against the Respondent on 27 June 2013 and the Addendum made to it on 19 August 2013 in the Singapore International Arbitration Centre ("the Award"). As contemplated by the Act, the application was heard on an ex parte basis and Hellman J granted leave to enter judgment in terms of the Award, subject to the Respondents' right to apply within 14 days of service of the Order to set aside leave. Under the Award, the Respondent was ordered to pay the first Applicant nearly US$5 million plus costs and the second Applicant approximately US$13.5 million plus costs.

By Summons dated 14 November 2013, the Respondent applied to set aside the grant of leave on the following grounds: (i) the dispute deals with disputes not contemplated by and not falling within the submission to arbitrate; (ii) the Award contains decisions on matters beyond the scope of the submission to arbitrate; (iii) the Respondent was unable to present its case; and (iv) the enforcement of the Award would be contrary to public policy.

At the substantive hearing of the Respondent's Summons, the Chief Justice dismissed the application. The reasons for that decision have been outlined below and provide a useful reiteration of the approach of the Bermuda Court to the enforcement of arbitral awards.

The Bermudian courts have, on many occasions, stressed the strong public policy in favour of enforcing foreign arbitral awards, which is reflected in this legislative scheme. The leading Bermudian authority on enforcement of awards made in Convention countries is of some 25 years' vintage: the Court of Appeal for Bermuda decision in Soujuznefteexport -v- Joc Oil Ltd [1989] Bda LR 11. That decision outlined that the approach of the Bermuda Court, if there has been a Convention award under the New York Convention, is that there is a presumption that the tribunal acted within its power and that the award is valid and regular. Although this decision pre-dates the enactment of the 1993 Act, it was held that the quoted pronouncements on the policy approach to be adopted when dealing with an application for the enforcement of Convention Awards are binding on the Bermuda Court.

The Chief Justice noted that it appears to be settled under Bermuda law that enforcement cannot be refused on the grounds that the award contains matters "not submitted to arbitration" when the matters complained of (a) fall within the scope of the arbitration agreement, (b) are adjudicated under the contractually chosen governing law, and also (c) fall within the scope of the specific dispute referred to arbitration in question.

In respect of the public policy complaint, the Chief Justice found that the Respondent had not raised any seriously arguable foundation for declining to enforce the Award on public policy grounds. It was again perhaps unsurprising that the Respondent did not have the temerity to seek to pursue this ground of challenge to the decision of the Singaporean Tribunal before the Singaporean courts.

Third Party Notice - Joint Liability - Order 15 Rule 4(3) - Directions – Joinder

DENISE RIBAROFF -v- (1) BASIL WILLIAMS (2) CHRISTOPHER DILLON (3) JOHN ECKERT (4) ARUN PURI (5) JAMES WISE and FIDUCIARY PARTNERS TRUST COMPANY LIMITED (as Trustee of the Concordia Employee Benefit Trust) Third Party [2014] SC (Bda) 11 Civ (20 February 2014)

On 22 August 2013, the Plaintiff issued a Generally Endorsed Writ of Summons against the Defendants seeking damages estimated at approximately US$4.8 million for breach of a Sale and Purchase Agreement.

After entering an appearance on or about 12 September 2013, the Defendants issued a Third Party Notice against Fiduciary Partners Trust Company Limited ("Fiduciary"). This sought a contribution in respect of any damages which might become payable to the Plaintiff by the Defendants on the grounds that Fiduciary was jointly or jointly and severally liable under the sale and purchase agreement with the Defendants in respect of the relevant obligations.

After entering an appearance, the Fiduciary filed its Defence and Counterclaim to the Third Party Notice. In the interim, the Defendants issued a Summons seeking directions under Order 16 Rule 4 ("Third Party Directions"). Paragraph 4 of the Fiduciary's Defence admitted that the Third Party "owed joint or several obligations to the Plaintiff... as alleged in paragraph 2 of the Third Party Notice."

In this application, the Defendants sought an Order under Order 15 Rule 4(3) that the proceedings be stayed until the Fiduciary is joined as a Defendant on the grounds that there are causes of action relied upon by the Plaintiff, based on contractual obligations for which the Defendants and Fiduciary would be jointly, but not severally liable.

In summary, the Chief Justice held that the Defendants' Summons was liable to be dismissed provided that Fiduciary (the Third Party) undertook not to pursue the plea (outlined in its Defence and Counterclaim to Third Party Notice) that it can only be strictly liable if the Plaintiff joins it as a Defendant to the main action.

In giving judgment, it was noted that the English rule from which Order 15 Rule 4(3) is derived was revoked over 25 years ago and so no post-CPR persuasive authority exists which sheds light on the way in which the Court's powers under this rule should be exercised. The Chief Justice held that Order 15 Rule 4 (3) of the Rules of the Supreme Court confers on this Court the discretionary power to stay an action, on the application of a defendant, where the plaintiff refuses to join as a defendant a party not before the Court which is jointly liable with the defendant in respect of the claim before the Court. A defendant is not entitled to such relief as of right where the existence of a joint debt can be demonstrated. The exercise of the relevant discretion will be fact-sensitive and subject to the usual case management powers conferred by Order 1A of the rules.

The Chief Justice confirmed his hope that the present decision will enable similar joinder issues to be resolved more expeditiously and pragmatically in the future.

Winding-Up – Minority Oppression – Shareholder Disputes – S111 Companies Act, 1981

Allison Thomas and Ricardo Swan (Petitioners) -v- Fort Knox Bermuda Ltd. and Troy Symonds and Shari Poe [2014] SC (Bda) 15 Com (26 February 2014)

Minority oppression actions or shareholder disputes are relatively common in Bermuda but they rarely if ever go the full distance and end up in trial. In this case, the First Petitioner was a founder, shareholder, and former director of the First Respondent ("the Company"). In his capacity as a member of the Company he has issued a petition in which he applies for relief pursuant to Section 111 of the Companies Act, 1981 ("the 1981 Act"). This was on the ground that the affairs of the Company are and have been conducted in a manner oppressive or prejudicial to his interests as a member.

The Company adopted a neutral position as regards the petition. However, the petition was opposed by the Second and Third Respondents, directors of the Company (in which they hold a majority of the shares).

Section 111 is concerned with the rights of shareholders. In order to achieve relief under Section 111 of the Act, the petitioners had to show that, were it not for the existence of the statutory remedy, it would otherwise be just and equitable to wind up the company. The conduct complained of must be oppressive or prejudicial to the interests of the member as a member. It is not enough that it is prejudicial to his interests in some other capacity (e.g. as a director or employee).

The Petitioners' claim for relief was dismissed with Hellman J providing a basis for rejecting each of the grounds upon which the petition was based:

The Petitoners claimed that certain arrangements of the Company were designed by the Second and Third Respondents to dilute the First Petitioner's shareholding so that they could gain a majority interest in the Company. The Second and Third Respondents rejected the First Petitioner's allegations and asserted that the purpose of the arrangements was to provide the Third Respondent with some measure of security for the extensive sums that she had loaned to the Company. Hellman J held that the dilution of the First Petitioner's shareholding (as of the Second Respondent's shareholding) was on their evidence simply an ancillary consequence of this arrangement. Moreover, it was not sufficient to give the Second and Third Respondents a combined majority of common shares.

The Petitioners also claimed that the removal of the First Petitioner as an employee and director was oppressive or prejudicial. Hellman J disagreed and held that by the date of his dismissal as an employee, the First Petitioner's terms and conditions of employment were no longer subject to equitable considerations but were purely contractual. The Company was within its rights to dismiss him without cause. His appointment as a director was not renewed as his relationship with the Second and Third Respondents was damaged beyond repair and, in Hellman J's judgment, nothing untoward in that.

Hellman J was also satisfied that the Company's failure for a number of years to present audited accounts was due chiefly to lack of funds and, was not oppressive or prejudicial to the First Petitioner who had access to the unaudited accounts.

Finally, Hellman J held that the Company's continuing failure to pay the First Petitioner his deferred salary was not oppressive or prejudicial to him as the Company was not, and has not been at any material time, in a position to pay deferred salary to him or any of the other shareholder employees.

Trusts – Wishes Of Settlor – Jurisdiction And Applicable Law – Choice Of Law – Litigation Funding Agreements

Stiftung Salle Modulable et al v Butterfield Trust [2014] SC (Bda) 13 Com (21 February 2014)

The decision of the Chief Justice resulted from a six-week trial which focused on whether the Defendant Trustee had a contractual obligation to provide funding of 120 million Swiss Francs for the construction of an Opera House in Switzerland. The Trustee had withdrawn funding from the project in 2010 following the death of the settlor. The Plaintiffs were a Swiss charitable foundation which had been established for the express purpose of planning and constructing the Opera House (the "Foundation").

A key consideration in the decision was the question of whether the Trustee's contractual obligations (if any were in fact owed) were governed by Swiss or Bermuda law. In this respect, the Chief Justice held that in the absence of an express choice of law by the parties, the Court would look to either (1) an implied or inferred choice based on the facts of the particular case; or (2) the system of law with which the alleged contract has closest connection. On the facts, the Chief Justice held that Swiss law was the applicable law.

As a result of the above determination, the Chief Justice heard detailed evidence on relevant provisions of Swiss law. The Chief Justice held that the parties had entered into a "donation contract" by which the Trustee agreed to fund the costs of construction of the Opera House subject to a condition that if the project was not feasible, the contract would be dissolved. Such a concept is unknown to Bermuda law where, unless a contract is executed by deed, consideration is required to form a binding contract. The Chief Justice ordered that the Foundation was to be given a reasonable time to demonstrate that the costs of constructing/operating the Opera House were feasible.

The Chief Justice also held that there would have been an implied term that if the Trustee decided that it was not willing to proceed with the funding of the construction of the Opera House (for any bona fide reason), it would be entitled to terminate the contract upon giving reasonable notice and funding all reasonable outstanding costs. In such circumstances, the contract would be dissolved.

Of particular note, the Chief Justice highlighted that while the Settlor remained in favour of the Opera House project prior to his death, the Trustee had no legal obligation to have regard to the Settlor's wishes.

An additional point that was considered in this litigation was that of litigation funding arrangements whereby in this case the Swiss Foundations had entered into such an agreement. In this respect, the Chief Justice provided a useful indicator of the Court's approach to such agreements stating that in light of principles promoting access to the courts, such agreements should be encouraged rather than condemned. However, the argument of the Foundation, that litigation funding costs should be recovered under Bermudian law as contractual damages, was rejected.

This matter is subject to a possible appeal on the grounds that (1) the Court did not have the power to give the Plaintiffs any further time for the production of a new feasibility study; and (2) the Court should not have applied Swiss law.


Court of Appeal


Civil Appeal – Winding-Up – Jurisdiction – Assistance To Foreign Liquidators – Production Of Documents

PriceWaterhouseCoopers -v- Saad Investments Company Limited and Singularis Holdings Limited [2013] CA (Bda) 7 CIV (18 November 2013)

The Court of Appeal for Bermuda (Zacca P, Auld JA and Bell AJA) delivered an important judgment about the jurisdiction of the Bermuda court to assist foreign liquidators by ordering the production of documents by persons in Bermuda.

The interplay or conflict between the decisions of the Privy Council and the UK Supreme Court in Cambridge Gas -v- Navigator [2007] 1 AC 508, Rubin -v- Eurofinance [2012] UKSC 46 and Al Sabah -v- Grupo Torras [2005] 2 AC 333 has been a source of great debate and litigation in the world of cross-border insolvency. The Bermuda Court of Appeal has provided clarity as to the common law position (at least in Bermuda) but less clarity in relation to the scope and control of statutory parallel insolvency procedures.

In summary the position is: (1) The Bermuda court has no jurisdiction at common law to make a production order in aid of a foreign liquidation against persons in Bermuda; and (2) PwC was unable to challenge the exercise by the Bermuda court of its statutory power to make ancillary winding up orders in aid of a foreign liquidation. Once the Bermuda Court has made a winding up order, the Court can then make production orders against persons in Bermuda ancillary to that winding up order.

PricewaterhouseCoopers (PwC) is a Bermuda exempted partnership with its registered office in Bermuda. It is a different legal entity to the PricewaterhouseCoopers Bermuda auditing firm. Through its Dubai branch, PwC Bermuda audited two Cayman companies, Saad Investments Company Limited ("SICL") and Singularis Holdings Ltd. ("SHL"). PwC did not have any office or other physical presence in Cayman. The Cayman Court ordered the compulsory winding up of SICL and SHL, and Joint Provisional Liquidators were appointed in Cayman in 2009. Production orders were made against PwC as former auditors in Cayman that were eventually complied with.

The Cayman orders did not and could not require PwC to produce its own working papers (merely documents that were the property of SICL and SHL).

In 2012, some three years after the Cayman winding up orders, the JPLs obtained an ancillary winding up order in Bermuda against SICL. They subsequently obtained ex-parte orders against PwC (1) under Section 195 of the Companies Act requiring the production of extensive documentation relating to SICL, including the auditor's working papers and (2) at common law against both SICL and SHL requiring the production of substantially the same extensive documentation. PwC challenged the making of these orders, and was unsuccessful at first instance before Kawaley CJ. PwC appealed to the Bermuda Court of Appeal. The Court of Appeal unanimously held that there is no common law power to order production of documents equivalent to the statutory powers contained in Section 195 of the Companies Act in circumstances not falling within the terms of that section. In other words, absent a Bermuda winding up order, there could be no reliance on the terms of Section 195 or a common law equivalent power. The doctrine of modified universalism as espoused by Lord Hoffman in Cambridge Gas -v- Navigator Holdings [2007] 1 AC 508 provides no basis in Bermuda for a common law power equivalent to the statutory power in circumstances where the statute is inapplicable.

By a majority, however, the Court of Appeal also held that since a winding up order had been made against SICL in Bermuda, the powers under Section 195 were available to the court and a production order could be made. The decision of the Bermuda Court of Appeal in PwC Bermuda -v- Kingate Global Fund Ltd [2011] Bda LR 32 was binding on the Court of Appeal and provided that PwC could not challenge jurisdiction of the Court to make the production order because that would amount to a collateral attack on the Bermuda winding up order. PwC had no standing to challenge the making of the Bermuda winding up order. The dissenting judgment of Sir Robin Auld JA contains a powerful critique of the existing law and holds that PwC is able to challenge the making of the Section 195 production order.

Civil Appeal – Tax Information Exchange Agreements – Disclosure Of Basis For Request – Statutory Notice To Deliver Up Information –

The Minister of Finance -v- Bunge Ltd [2013] CA (BDA) 4 CIV

This appeal was against the judgment of Hellman J dated 13 March 2013 which granted an application for judicial review made by Bunge Limited ("Bunge") in relation to a statutory demand for information made by the Minister of Finance, the Appellant, under the International Cooperation (Tax Information Exchange Agreements) Act, 2005 ("the 2005 Act"). The 2005 Act "makes general provision for the implementation of tax information exchange agreements entered into by the Government of Bermuda... with other jurisdictions". The relevant Agreement was made between the Governments of Bermuda and Argentina and came into force on 14 October 2011 ("the Agreement").

Bunge, a company located in Bermuda, was served with a statutory Notice to deliver up information pursuant to Section 5 of the Act. It referred to a request for information received from the Government of Argentina in accordance with the Agreement, and it directed Bunge to deliver to the Minister all such information within Bunge's possession, custody or control in relation to the 'tax payer' in question. The Notice contained the Minister's assertion that the Request made by Argentina "is in accordance with" the Agreement; it specified some but not all of the information that the Agreement required Argentina to provide to Bermuda in support of its Request; and it included certain unexplained demands for information.

Bunge's submitted that the person on whom a notice is served must know the terms of the request in order to determine that the Minister is entitled to the information pursuant to the Agreement. In order to comply with the Agreement, Bunge contended that Argentina must have provided to Bermuda with detailed information to support its request for the information sought and that Bunge was entitled to that information.

The Minister disputed that the terms of the request must be disclosed, contending that it was a document received in confidence from the Government of a foreign country, which it is not required to disclose under the terms of the 2005 Act.

It was held that on the true construction of the 2005 Act, the person on whom the notice is served is entitled to see, and the Minister is bound to produce, the terms of the Request, so far as they are relevant to the notice that is given. Without production of the terms of the Request, the person cannot know that the notice is valid. It was also held that disclosing the terms of the request in the above circumstances does not involve any breach of Bermuda's international obligations under the Agreement.

It was noted in the judgment that the submissions for the Minister came close to suggesting that the person on whom a notice is served under Section 5 of the 2005 Act must accept the Minister's decision that the notice is in accordance with the request received from the foreign state, thus (possibly) raising the constitutional issue as to whether the Minister has an unlimited discretion which cannot be questioned even by the Courts. It was highlighted that this would clearly be impossible as the face of Section 8A of the Act permits judicial review.


Trusts – Application For Documents – Confidentiality – Information Control Clause – Duties Of Trustees – Role Of Protector

In the Matter of an Application for Information about a Trust [2013] CA (BDA) 8 CIV

Reasons for Decision

This Appeal arises from a judgment of the Chief Justice on the Application of a beneficiary under a Bermuda Trust. The Order of the Chief Justice required the Trustee to produce Trust Accounts and related documents to the Applicant, with safeguards intended to maintain their confidentiality and restricting the use that he may make of them. The Protector, who is also the principal beneficiary of the Trust, brought the appeal, naming the Applicant as First Respondent and the Trustee as Second Respondent.

The Applicant was a beneficiary of an absolute interest in 35% of the Trust the assets of which are believed to be worth in the region of US$1 billion. The Appellant was the Principal Beneficiary of the majority (65%) of the Trust assets. The originating application raised the novel question of the impact of an information control clause or mechanism on this Court's supervisory jurisdiction over a Bermudian trust. However, the Appeal was dismissed, for reasons which echoed those of the Chief Justice.

It was noted to be common ground that the Court exercises a supervisory jurisdiction in order to ensure that the affairs of a private trust are conducted lawfully and in accordance with the wishes of the settlor. This enables the Court to require the production of trust documents and information to a beneficiary of the trust.

The Appellant's submitted that the Trust Deed contains express terms (Clause 9.2) which, they say, have the effect of extinguishing the right, or which at least prevent the Applicant from exercising it in the present case. In view of this, it was submitted that Clause 9.2 should be applied in accordance with its terms because the Court's fundamental duty in supervising the Trust is, so far as possible, to ensure that the settlor's wishes as expressed are both respected and given effect to. The Applicant's response was that the express terms do not preclude the Court from exercising its supervisory jurisdiction, and that it should do so in the present situation of the Trust.

The Court of Appeal held that Clause 9.2 does not go so far as to release the Trustees from their duty to make their own decision, nor does it entitle them simply to pass on the request so that the Protector can decide. With that being correct, it was further held that the Trustees are required to make their own decision, in the interests of the Trust and in accordance with the intentions of the Settlor as set out in the Trust Deed. If they are minded to release the information, they must seek the consent of the Protector before doing so. The question then arose as to what grounds the Protector's consent can properly be withheld.

In the judgment of the Court of Appeal, the Protector was bound by the same constraints as the Trustees and it was noted that Clause 9.2 encompassed the release of information to beneficiaries as well as to strangers to the Trust. It was held that there was no indication that the Settlor intended that they should be deprived of information to which they are entitled as of right under the general law. Just as the Trustees were expected to exercise their discretion accordingly, so is the Protector in deciding whether to refuse consent to a proposed release. The Protector cannot lawfully refuse consent in a case where the Settlor is taken to have approved the release, any more than the Protector can vary the terms of the Trust.

This decision is currently being appealed to the Privy Council.


High Court


Bearer Shares – Effect Of Failure To Deposit With Custodian – Ability To Transfer Disabled Bearer Shares To Company For Conversion, Exchange, Redemption, Purchase

Maria Helen Moraes Scripilliti -v- Clomar Corporation Claim No BVIHCV 222 of 2013

The Applicant applied for relief in her personal capacity and as administratrix of the estate of Clovis Scriptilliti ("the Estate"). She sought declarations that the shares in Clomar Corporation, a BVI company, (the "Company") were legally and/or beneficially owned 50:50 by the Estate and herself respectively and an Order rectifying the Company's register of members to reflect that fact under Section43(1) of the BVI Business Companies Act, 2004 ("BCA"). The shares in the Company had been issued as bearer shares.

Two issues arose: the first, whether personal service on a former Registered Agent was proper service on the Company. The Court held that it was not but that the Company might have been properly served on the registered office under BCA Section 101.

The second issue is of greater significance. In 2005, the BVI introduced legislation which required existing BVI companies which had issued bearer shares prior to 1 January 2005 to either convert their bearer shares to registered shares or immobilise them. A period of grace was allowed, but unless they had previously been cancelled, redeemed or acquired by the company, all bearer shares were required to be deposited with a custodian by 31 December 2010. Bearer shares not deposited were disabled and would not carry any of the entitlements that it would otherwise carry, namely the entitlement to, vote, a distribution and a share in the assets of the company on liquidation, or could it be transferred and/or the subject of a valid mortgage or charge.

The bearer shares the subject of the application had not been deposited with a Custodian. The Claimant submitted that BCA Section 68(3)(b) and Section 78(3)(b) allowed bearer shares which had not been deposited with a Custodian nevertheless to be transferred to the Company for conversion or exchange into registered shares, for redemption, purchase or other acquisition by the company or to be forfeited and cancelled.

The Court rejected this submission and held that those provisions could not be read in isolation, that they were subject to the mandatory provisions of the BCA which disabled bearer shares unless deposited with a Custodian and they only applied if the mandatory provisions had been complied with. The fact that the mandatory provisions had not been complied with was due to inadvertence.

Trusts – Discretionary Trust – No Express Power In Trustee To Vary Identity Of Beneficiaries Or Terms Of Settlement – Whether Power Of Appointment Available To Exclude Beneficiary And Vary Terms Of Settlement

Claim No BVIHC (COM) 112 of 2013 Royal Fiduciary Group Limited (November 2013)

This case concerned an application by the trustee of a discretionary trust ("the Trust") for a declaration that it had the power under the deed of settlement to permanently exclude the settlor from benefitting under the Trust. The settlor, along with his children and remoter issue, were beneficiaries of the Trust and there was no express power under the Trust to vary the identity of the beneficiaries or the terms of settlement. A worldwide freezing order had been previously made in England against the settlor and included assets of the Trust and the trustee by its application sought to ensure that the Trust asset would not be available to settle the obligations of the settlor.

In seeking in effect to exclude the settlor from the Trust, the trustee sought to rely on a decision of the English Court of Appeal in Blausten -v- Inland Revenue Commissioners [1972] Ch 256. There the Court held that it was within the terms of the power of appointment for the trustees to appoint income and to advance or appoint capital to a special class which, for fiscal reasons, specifically excluded the settlor's wife by executing a deed of appointment irrevocably declaring that they would hold the capital of the trust fund on trusts identical to those in the original settlement for the specified class but redefined so as to exclude the settlor's wife during his lifetime. The wife would then be written back into the Trust after his death.

The Commercial Court Judge preferring the judgment of the first instance judge declined to follow the Court of Appeal in Blausten and refused to sanction the execution of a deed varying the terms of settlement to remove the settlor. In his judgment, this was not a power conferred by the Trust.


Statutory Demand - Application To Set Aside-Whether Failure To Comply With Request For Further Evidence Capable Of Amounting To Dispute - Creditor Failing To Value Security And Claiming For Gross Amount Of Debt - Whether Giving Rise To Substantial Injustice – Section 157(2) Insolvency Act, 2003 Considered – Debtor Relying On Cross Claim - Whether Made Out On Fact

Zaria Global Limited -v- Pillar Securitisation Sarl Claim No BVIHC (COM) 0035 of 2013 (January 2014)

This case concerned an application by Zaria Global Limited (Zaria) to set aside a statutory demand served on it by Pillar Securitisation S.a.r.l ("Pillar") on several grounds including the failure by Pillar to give further disclosure and a defect in the statutory demand itself. The Court said that it did not think that by challenging Pillar to give further disclosure of what was plainly asserted as a fact, Zaria raised a substantial dispute for the purpose of setting aside a statutory demand. Further, the Court held that although Section 157(2) gives the Court the power to set aside a statutory demand if substantial injustice would otherwise be caused by a defect in the demand including where a creditor failed to value any security held for the debt that on these facts substantial injustice had not been caused. The Court said he may have concluded differently if Zaria had indicated a readiness to pay the unsecured part of the debt and he could see no practical good coming from Pillar having to amend the statutory demand to take account of the security.

Bvi Discretionary Trust - Sole Asset Entire Issued Share Capital Of Investment Company - Management Of Investments Delegated To Professional Managers - Almost Entire Value Of Trust Fund Lost - Duties Of Trustee - Whether Trustee Under A Duty To Review - Performance Of Managers - Approach To The Assessment Of Equitable Compensation - Court's Power To Award Interest In Equity

Appleby Corporate Services (BVI) Limited -v- Citco Trustees (BVI) Limited Claim No BVIHC (COM) 156 of 2011

In this case the current trustee of a BVI discretionary trust, Appleby Corporate Service (BVI) Limited ("Appleby") sought an order requiring the former trustee, Citco Trustees (BVI) Limited ("Citco") to reconstitute the trust fund by compensating the trust for losses which it claims were suffered by the trust as a result of the negligence of Citco. The sole asset of the trust was the entire issued share capital of an investment company. The investments were delegated to professional managers who disregarded contractual investment guidelines with a resultant loss of almost the entire value of the trust fund.

The Court held that any person, such as a trustee, holding property on behalf of others who delegates dispositive powers and functions such as the management of investments representing the properly held, is under a duty to have in place appropriate risk management procedures in order to be able to satisfy himself that such delegated powers and functions are adhered to and not abused by the agents to whom they have been delegated. Applying the well-established principle as set out in the case of Bartlett -v- Barclays Bank Trust Co Ltd [1980] 1 Ch 515, the Court held that a trustee should not (subject always to the provisions of the trust in question) take more risks with the trust property than would a prudent man of business with his own. Further, Citco, as sole owner of the Company, being the only asset of the Trust, had a duty not only to respond to information giving cause for concern about the management of the Company's assets but also to inform itself at appropriate intervals on the state of the Company's portfolio and the manner in which it was being managed.

The Court held that among the duties owed by Citco to the beneficiaries of the Trust was a duty to take reasonable steps to satisfy itself at appropriate intervals that the investment guidelines were being observed and that the overall value of the fund had not been affected by any abuse on the part of investment manager of its delegated authority. Having found that Citco did not undertake regular periodic review of the investment managers conduct or never addressed itself to the question whether continued delegation was in the best interests of the company that these failures amounted to a negligent breach of duty on the part of Citco.

The Court held that Citco could not rely on Section 31(1) of the Trustees Act to exonerate itself since that was a section dealing with vicarious or secondary liability and here the breach of duty was that which was owed directly to the beneficiaries. In the Court's judgment, a trustee cannot escape liability by saying that the proximate cause of the resulting loss was the default of the agent to whom powers have been lawfully delegated.

Finally, the Court held the Citco's failure to spot what was happening was causative of the depreciation in the value of the Trust fund and that it was obliged to reconstitute the trust fund to the value which it would have had if Citco had conscientiously performed its duty of supervision. The Court confirmed that although it did not have the power to award pre-judgment interest on common law claims, it had the inherent power to award interests in equity.


Court of Appeal


Civil Appeal – Interlocutory Appeal Filed With Leave – Entitlement Of Voluntary Liquidators To Fees After They Form View That Company Is Insolvent – Insolvency Act, 2003, Section 182, 430 – Bvi Business Companies Act, 2004, Section 209, 210 – Appeal Against Judge's Findings Of Fact

Jackson IP and James Wardell -v- Griffin Industries Limited (In Liquidation) Claim No BVIHCMAP 2013/0006

This case concerned an appeal by the former joint voluntary liquidators ("the appellants") against parts of an Order made by Justice Bannister in the Commercial Court.

Following their replacement, the appellants applied for their remuneration in the amount of HK$6,4 million. The creditors committee fixed the appellants remuneration at less than half of that, in the amount of HK$3,1 million.

On application to the Court to fix their remuneration, the trial judge found that the appellants had realised the majority of the company's assets within the first 12 months of their appointment and further found that from 26 August 2007 the appellants remuneration should be limited to work which fell only within the (limited) scope of Section 182 of the Insolvency Act, 2003 ("IA"). Section 182 provides for the voluntary liquidators to take the company's assets into their custody and control, dispose of perishable goods, and to doing all such things necessary to protect the company's assets.

The restriction on remuneration was imposed as the Judge found there to be clear evidence that the appellants were aware that the company was insolvent by 26 July 2007 (the date of the statement of affairs which revealed the insolvency). Instead of sending a notice to the official receiver in the BVI 'forthwith' (as required by Section 209 of the Business Companies Act) years elapsed until notice was sent in November 2011.

The Judge noted that voluntary liquidation should effectively be frozen once the opinion was reached that the Company was insolvent, and it would be wrong to award the appellants remuneration for carrying out tasks other than those falling within Section 182 of the IA. The whole point of the scheme, as the Judge noted, was to ensure that no further expenses would be incurred by the voluntary liquidators other than the expenses in carrying out the limited functions prescribed by Section 182. The Court of Appeal agreed with the findings of the trial judge and dismissed the appeal with costs.


Westburg Anstalt -v- Profitstar Anstalt Claim No BVIHCMAP 2013/0020

The claim was for the enforcement in the BVI of a final and conclusive monetary judgment of the Supreme Court of Lichtenstein. The trial judge had found that the Court had no power under CPR 7.3(5) to allow service out of the jurisdiction of a claim form where the claim was to enforce a judgment made by a foreign court or tribunal, which had not been registered in the High Court pursuant to Part 7 2 of CPR 2000.

At the time of judgment CPR 7.3(5) provided:


(5) A claim form may be served out of the jurisdiction if a claim is made to enforce any judgment or arbitral award which was made –

(a) within the jurisdiction; or

(b) by a foreign court or tribunal and registered in the High Court pursuant to Part 72.

Based on a literal reading of Rule 7.3(5) Westburg could not rely on this gateway since the judgment was not made within the jurisdiction and was not registrable, and therefore had not been registered under the relevant enactment. The Court of Appeal determined that, notwithstanding the literal language of the rule by applying a purposive approach, one could readily use CPR 7.3(5). The words "and registered in the High Court pursuant to Part 72" were, it concluded, erroneous and "mere surplusage", which could safely be ignored.

Immediately following the delivery of the judgment, the CPR was amended, effective 1 February 2014, such that CPR 7.3(5) now reads: "A claim form may be served out of the jurisdiction if a claim is made to enforce any judgment or arbitral award which was made by a foreign court or tribunal and is amenable to be enforced at common law."


Civil Appeal – Interlocutory Appeal – Freezing Injunction – Whether Person Who Is Not Joined Or Made Party To Proceedings Can Have Locus Standi To Appeal – Interpretation Of Cpr 7.3 (5)(B) – Black Swan Jurisdiction – Basis Upon Which An Appellate Court Would Disturb The Exercise Of The Trial Judge's Discretion– Civil Procedure Rules 62.1(2) And 2.4

Tsoi Tin -v- Tan Haihong and Yu Heng International Investments Corporation Claim No BVIHCMAP 2013/0023

This case concerned an interlocutory appeal brought by Tsoi Tin ("Mr T") against the decision of the trial judge, Mr Justice Bannister, to continue a freezing injunction against the respondent (the "Company").

Mr T and Tan Haihong ("Mrs H") are husband and wife engaged in a matrimonial dispute in the People's Republic of China. Mrs H alleged that the Company shares represented approximately 50% of the value of the total matrimonial assets (of which she was entitled to half). Mrs H caused a stop notice to be issued in respect of the shares and obtained an injunction to restrain the transfer of the shares. Mr T appealed the Order.

Mr T was not named or joined as a party to the first instance proceedings, although he did attend the proceedings as an interested person and the trial Judge heard submissions on his behalf on that basis. Mr T appealed the freezing injunction challenging the jurisdiction to make the order and the exercise of the judge's discretion to grant the relief.

Mrs H raised a primary objection saying that Mr T had no locus standi to bring the appeal as he was not a party to the proceedings and could not therefore be an "appellant".

The Court dismissed the appeal and held that Mr T was not properly an appellant, and therefore had no standing to bring the appeal since he was not an appellant within the meaning of CPR 62.1(2) which defines an "appellant" as "the party who first files a notice of appeal". CPR 2.4 defines a party as "includes both the party to the claim and any legal practitioner on record for that party".


Grand Court


Winding Up – Liability For Costs When The Petition Is Withdrawn

In the Matter of the Companies Law (2012 Revision) (As Amended) and in the Matter of Aramid Entertainment Fund Limited, Grand Court of the Cayman Islands (Financial Services Division) Cause No, FSD 95 of 2013, per Foster J (25 October 2013)

This ruling concerns liability, in the particular circumstances, for costs on the withdrawal of a creditor's winding up petition. The company concerned contended that the petitioner should pay the company's costs of and incidental to the petition. The petitioner contended that there should be no order for costs so that the parties should each bear their own costs or, alternatively, that a decision on liability for costs in each respect of the withdrawn petition should await the outcome of litigation between the petitioner and company in another jurisdiction.

The Judge took the view that the law is clear and well established that the Court has a broad discretion to depart from the usual rule in relation to the costs of a winding up petition which is dismissed or withdrawn if it considers that some other order should be made in the particular circumstances. The question which is usually appropriate for the court to consider in the case of a dismissed or withdrawn winding up petition when the petitioner opposes the company getting its costs and seeks a no order for costs or applies for its own costs or makes some other application in relation to costs, is whether the presentation of the petition was reasonable in all circumstances.


Cayman – Procedure - Strike Out – Employment – Share Option Agreement – Loss Of Opportunity To Acquire Shares – Specific Performance

Seth Pinegar -v- iSoftstone Holding Limited, Grand Court of the Cayman Islands (Financial Services Division) Cause No. FSD 584 of 2012, per Smellie CJ (7 March 2014)

The action was brought by Mr. Pinegar (the "Plaintiff"), a resident of the People's Republic of China ("PRC"), against iSoftstone Holding Limited ("IHL"), a Cayman Islands company listed on the New York Stock Exchange. The Plaintiff claims damages for breach of his employment agreement with IHL's subsidiary, an agreement which includes vested share option agreements provided through IHL.

The breach is alleged to have resulted in the loss of opportunity to connect IHL shares (acquired by exercise of options) into American Depository Shares ("ADS s") and to acquire and track those ADS s to which the Plaintiff claims to have been entitled. Alternatively, the Plaintiff claims specific performance of the share option agreements, including the right of conversion to ADS s. IHL counterclaims for the sum of US$1,210,058.00 said to be due from the Plaintiff as withholding taxes arising from the exercise of certain of the vested share options. This is the amount which IHL claims it is liable, as counterparty to the share option agreements, to pay to the Revenue of the PRC.

On 13 September 2013, the Chief Justice heard competing applications: that by the Plaintiff to strike out IHL's counterclaim and a cross-summons by IHL for summary judgement on its counterclaim, in the event the Plaintiff's strike out application failed. The Chief Justice dismissed both applications.

Firstly, on the Plaintiff's strike out application, he found it arguable that IHL would be entitled to be indemnified in respect of sums which it had personally been compelled to pay abroad in the PRC in satisfaction of the foreign government's claim, even though the claim itself may be unenforceable in the Cayman Islands (citing Re Reid [1971] 2 W.L.R. 121). The Chief Justice also found that the question of whether the claim in substance was an attempt to collect Foreign Tax (Wahr-Hansen -v- Compass Trust Co. Ltd [2007] CILR 55) was a matter for evidence at trial.

It followed that the Chief Justice could not accede to IHL's summary judgement application on its counterclaim due to the questions of PRC Tax Law that needed to be resolved.

Nigel Meeson QC and Michael Mulligan of Conyers Dill & Pearman (Cayman) Limited appeared on behalf of Isoftstone Holding Limited.


Bankruptcy – Audit Of Accounts Of The Trustee In Bankruptcy – Role Of Auditor

In the Matter of the Bankruptcy Law (Cap.7) (1997 Revision) and In the Matter of Patricia H. Millard, a Debtor, and In The Matter of William H. Millard, a Debtor, Grand Court of the Cayman Islands (Financial Services Division) Cause Nos. FSD 60 and 61 of 2013, per Jones J (26 November 2013)

In the most recent ruling on Bankruptcy Laws in the Cayman Islands the Court had to consider whether the role of the Auditor General to audit the accounts of a Trustee in bankruptcy can be waived by a direction of the Court.

In the current proceedings the Trustee's Agents asked for a direction that the Auditor General shall not be required to audit the accounts of the Trustee in Bankruptcy, essentially on the grounds that it would service no useful purpose in the circumstances where the administration has been delegated to professional insolvency practitioners.

The Court rejected this position as it found that the Auditor General has a statutory duty to audit the accounts and that the Court has no power to relieve the Auditor General from the performance of his duty.

The Court took the opportunity to examine the history of the laws in relation to personal bankruptcy in the Cayman Islands and how to interpret them so that they would have a practical effect on current financial practices.

Michael Mulligan of Conyers Dill & Pearman (Cayman) Limited appeared on behalf of the Auditor General of the Cayman Islands.


Winding Up – Standing To Wind Up A Company If Finance Documents Contain An Exclusive Jurisdiction Clause For A Jurisdiction Other Than The Cayman Islands

In the Matter of the Companies Law (2013 Revision) and in the Matter of Rightway China Real Estate Limited and in the Matter of the Companies Law (2013 Revision) and in the Matter of Dash Limited, Grand Court of the Cayman Islands (Financial Services Division) Cause Nos. FSD 130 and 131 of 2013, per Henderson J (3 February 2014)

The Petitioners are a group of lenders in a syndicated loan arrangement. The loan had been in default for some time and the Petitioners sought a winding up of the debtors, Rightway China Real Estate Limited and Dash Limited.

The fundamental question which the Court had to decide was whether the Petitioners had standing under the finance documents to seek a winding up of the borrowers and its guarantor when the majority of the lenders by value are opposed to that course and in circumstances where the creditors had agreed that a foreign court (Hong Kong) has exclusive jurisdiction to decide questions of law arising from the finance documents according to the Law of Hong Kong.

The Judge was of the view that there was a good arguable case for the proposition that a debtor company could only be wound up at the instance of the creditors acting jointly through the Security agent. If that proposition can be established, the petition must be dismissed pursuant to Section 95(2) of the Companies Law (2013 Revision).

The Judge further held that the Hong Kong Court should decide questions of law arising from the finance documents according to the law of Hong Kong and adjourned the petition generally with liberty to restore after the Hong Kong court has ruled upon the right of the individual creditors to pursue the winding up.

Michael Mulligan of Conyers Dill & Pearman (Cayman) Limited appeared for Home Fortune Enterprises Limited.

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