In a recent decision of the Cayman Islands Grand Court1 it was confirmed that the authority of the director signing a share transfer form, provided as part of the security package for an equitable share mortgage, should be assessed when the transfer was originally authorized and executed, rather than when dated at the time of enforcement.
Taking security over shares in a Cayman Islands company: the basics
The Cayman Islands does not have a statutory regime that governs the granting, perfection or enforcement of security over shares in a Cayman company. Accordingly, the methods of taking security are derived from English common law.
Security will typically be created under the terms of a security document in the form of an equitable mortgage which specifies the defaults that entitle the mortgagee to enforce the security and the powers and remedies it is entitled to. The mortgagor will normally provide the following documents to the mortgagee:
- the original shares certificates (if any) for the secured shares;
- a share transfer form for the secured shares, signed but undated;
- an irrevocable proxy for the secured shares in favour of the mortgagee;
- a resolution of the directors of the company authorising the entry into and execution of the security documents;
- a certified copy of the company's register of members showing the creation of the security; and
- a notice from the company's registered office acknowledging the security; undertaking not to issue any restrictions notices with respect to the secured shares; and undertaking to register any transfer of the secured shares once it has received notice from the mortgagee that the security has become enforceable.
Background
On 6 April 2020, Hongkong and Shanghai Banking Corporation Limited ("HSBC") made a loan to Sino-Ocean Capital Holding Limited (the "Borrower"). In 2023, HSBC obtained further security in the form of an equitable mortgage over shares in OP Multi Strategies Investment Fund (the "Defendant") owned by Glory Class Ventures Limited ("Glory Class"), a BVI subsidiary of the Borrower's parent company. The equitable mortgage required Glory Class to execute an undated instrument of transfer in favour of HSBC. By unanimous written resolution of Glory Class's board of directors dated 6 April 2023, director Chan Ka Man was authorised to, and proceeded to, execute the undated instrument of transfer, which was provided to HSBC around the time of the execution of the equitable mortgage as a closing deliverable.
Events of Default and Enforcement
On 10 January 2024, the Borrower was asked to repay more than US$52 million due under the loan and when it failed to do so, an event of default under the equitable mortgage occurred. HSBC appointed Yeung Ka Man (the "Plaintiff") and Wing Sze Tiffany Wong as Receivers to enforce the equitable mortgage over the secured shares. On 5 July 2024, the Receivers executed the undated instrument of transfer and sought to register their title to the mortgaged shares in the Defendant's register of members.
Objections Raised
Glory Class objected, arguing that Chan Ka Man was no longer a director on 5 July 2024 and lacked authority to execute the instrument of transfer on behalf of Glory Class. In addition, the equitable mortgage included a clause providing that:
"The Mortgagor shall, within ten (10) Business Days of the date of resignation of any director of the Mortgagor who executed any item listed in Clauses 5(a)(iii) and 5(a)(iv) executed by another duly appointed director of the Mortgagor, together with a certified copy of the updated register of directors of the Mortgagor."
The Receivers contended that Chan Ka Man's authority was established when he executed the undated instrument as a duly authorised officer.
Court Application
The Receivers applied to the Grand Court of the Cayman Islands for an order to rectify the Defendant's register of members to reflect the Receivers as the registered shareholders of the mortgaged shares previously held by Glory Class.
The Defendant ultimately decided not to oppose the rectification application.
Held
The Grand Court granted the order sought by the Plaintiff to rectify the register of members of the Defendant. The rectification was to replace the name of the Mortgagor, Glory Class Ventures Limited, with the name of the Plaintiff, Yeung Ka Man, in respect of the mortgaged shares in the Defendant.
In reaching his decision, the Honorable Justice Kawaley noted that if the Plaintiff was required to establish that the officer of the mortgagor who executed the undated transfer instrument was also an officer at the time when the security was executed and dated by the Receiver, the whole rationale for the well-established commercial practice of undated instruments of transfer being executed as at the date of the relevant security agreement and then being dated by the secured creditor if the need for enforcement subsequently arose would be rendered nugatory. The fundamental purpose of the practice is to avoid the need for the mortgagee to seek the cooperation of the mortgagor at the enforcement stage.
As a matter of contractual interpretation and having regard to the contract's commercial purpose, the equitable mortgage expressly contemplated that either the Receiver or the Mortgagee could exercise all powers of the mortgagor and date and execute the undated transfer instrument and although there was a clause requiring further authorisation if an authorised officer was replaced, it was considered that this provision could not sensibly be construed as intended to invalidate a signature previously affixed to a transactional document by a duly authorised officer of the mortgagor.
This recent court decision serves only to bolster the reputation of the Cayman Islands as a robust and creditor friendly jurisdiction, especially for sophisticated lenders. Whilst there are restructuring solutions for debtors, creditors have significant legal tools to enforce claims including a coherent, sensible, common law system. The helpful clarification in this recent case is further evidence of that.
Footnote
1. Yeung Ka Man (As joint and several receiver appointed over shares and related rights of Glory Class Ventures Limited in Op Multi Strategies Investment Fund) v OP Multi Strategies Investment Fund (11 March 2025) [2025] CIGC (FSD) 20.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
