British Virgin Islands: Conyers Secures US$178 Million Judgment For Claimant In Long-running BVI Shareholder Dispute

On 24-25 October 2023, Justice Wallbank of the BVI Commercial Court presided over a valuation trial in the matter of Soemarli Lie v Ng Min Hong & Success Overseas Finance Limited BVIHC(Com) 2020/147 (the "Valuation Trial").

The Valuation Trial was the second phase of long-running proceedings following the Claimant's success in establishing all five allegations of unfair prejudice made against the Defendant and majority shareholder, Mr. Ng, in a judgment on liability handed down on 23 November 2021 (the "Liability Judgment"). Our previous article on the Liability Judgment is available here.

Following the Liability Judgment, the Court ordered that the Defendant purchase the Claimant's shares (the "Shares") in Success Overseas Finance Limited (the "Company") at a price to be determined by the Court. The Company's subsidiaries operated a highly successful palm oil business in Indonesia, with profits generally paid by way of dividends to the shareholders of the Company (including the Claimant), such dividends totalling millions of dollars per year. However, as a result of the Defendant's acts of unfair prejudice, the Claimant had not been paid any dividends for over seven years.

Leading up to the Valuation Trial, the Defendant failed to provide key disclosure on the financial position of the Company as at 13 July 2017 (the "Valuation Date"). The Court found the Defendant's non-disclosure to be deliberate and wilful. It therefore made an unless order, requiring disclosure, in default of which the Defendant would be debarred from defending the Valuation Trial. The Defendant failed to comply with the unless order and therefore stood debarred. The Court of Appeal rejected an appeal against the unless order in July 2023 and the day before the commencement of the Valuation Trial, it also dismissed the Defendant's application for leave to appeal to the Privy Council and for a stay.

At the Valuation Trial, in light of the Defendant's inadequate disclosure, the Claimant's valuation expert had to conduct a historic valuation as at 31 December 2015 (the date of the last available consolidated financial statements) and roll this forward to 13 July 2017, having regard to the following key metrics over the period between December 2015 and the Valuation Date: (i) the price of crude palm oil (CPO) and (ii) the share price of peer listed companies.

Justice Wallbank accepted the high end of the valuation range advanced by the Claimant's expert and ordered that the price to be paid for the Claimant's Shares was USD154 million. The Court further ordered quasi-interest on the purchase price at the rate of 2.5% per annum from the Valuation Date to 25 October 2023 (in the total sum of USD24.19 million).

Comment

The Court's judgment represents not only a huge success for the Claimant, but also underlines the BVI Court's willingness (more generally) to do justice between the parties, even in the face of inadequate disclosure. The Claimant faced trenchant opposition from the Defendant to his disclosure obligations. Rather than allowing this to stymie the Valuation Trial, the Court accepted the roll-forward approach adopted by the Claimant's valuation expert which was considered to be "measured" and "robust" in the difficult circumstances of the case.

Additionally, the Court ruled (consistent with the Claimant's submissions) that adverse inferences ought to be drawn against the Defendant on account of his non-disclosure, such that any doubt as to where in the range the final price should lie ought to be resolved in the Claimant's favour.

The judgment operates as a cautionary reminder to any litigant who fails to take disclosure obligations seriously. The BVI Commercial Court remains adept at navigating complex high-value disputes even in the face of recalcitrant parties who fail to adhere to the Court's orders.

Richard Evans (Partner) and Dr Alecia Johns (Counsel) of Conyers acted for the Claimant throughout the proceedings and at the Valuation Trial, led by Matthew Hardwick KC.

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