Conyers Offshore Case Digest (Issue No.11 April - December 2015)

APRIL 2015 – DECEMBER 2015 

ISSUE NO. 11 

BERMUDA 

BRITISH VIRGIN ISLANDS 

CAYMAN ISLANDS 

OFFSHORE CASE DIGEST 

BERMUDA BRITISH VIRGIN ISLANDS CAYMAN ISLANDS DUBAI HONG KONG LONDON MAURITIUS SINGAPORE / conyersdill.com

BERMUDA | BRITISH VIRGIN ISLANDS | CAYMAN ISLANDS 

Editor 

Bermuda 

Christian R. Luthi 

Assistant Editor 

Bermuda 

Stephanie Hanson 

Contributors 

Bermuda 

Ben Adamson 

Scott Pearman 

British Virgin Islands 

Tameka Davis 

About Conyers Dill & Pearman 

Founded in 1928, Conyers Dill & Pearman is an international law 

firm advising on the laws of Bermuda, the British Virgin Islands, the 

Cayman Islands and Mauritius. With a global network that includes 

130 lawyers spanning eight offices worldwide, Conyers provides 

responsive, sophisticated, solution-driven legal advice to clients 

seeking our expertise on corporate and commercial, litigation, 

restructuring and insolvency, and private client and trust matters. 

Conyers is affiliated with the Codan group of companies, which 

provides a range of trust, corporate secretarial, accounting and 

management services. 

This update is not intended to be a substitute for legal advice or a legal opinion. 

It deals in broad terms only and is intended to merely provide a brief overview 

and give general information. 

Cayman Islands 

Paul Smith 

Erik Bodden 

Hong Kong 

Nigel K. Meeson, QC 

Norman Hau 

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ABOUT 

THE DIGEST 

The Offshore Case Digest offers readers a high 

level summary of the major commercial cases 

decided in Bermuda, the British Virgin Islands 

and the Cayman Islands between April 2015 

and December 2015. Our goal is to provide a useful 

reference tool for clients and practitioners who 

are interested in the development of case law 

in each jurisdiction. 

JURISDICTION 

PAGE 

Bermuda 2 

British Virgin Islands 6 

Cayman Islands 12 

We would welcome any feedback and suggestions from readers on 

the content. If you would like to obtain further information on any 

of the cases, feel free to contact any of the Conyers Dill & Pearman 

litigation team. 

3 / conyersdill.com 

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SUPREME COURT 

SHARE TRANSFER - INJUNCTION TO RESTRAIN COMPANY FROM 

HOLDING SPECIAL GENERAL MEETING TO ADOPT AMENDED 

BYE-LAWS - PRE-EMPTION RIGHTS 

M Pulido -v- UST Holdings Ltd et al [2015] SC (Bda) 67 Com (25 

September 2015) 

A transferee of shares who has not yet been registered on the share 

register of the company does not have standing to obtain interim relief 

prohibiting an impugned meeting. Hellman J found that a transfer of 

shares who contended that they were the legal owner of 50,000 

shares in UST Holdings Ltd (the “Company”), but who had not yet been 

entered on the company register, did not have standing to seek 

injunctive relief to prevent a resolution being put to the members of 

the Company to adopt restated bye-laws in full substitution for the 

Company’s existing bye-laws. 

Under the new proposed bye-laws, the Company could refuse to 

register the Plaintiff as a shareholder without giving any reason. The 

Transferee strongly suspected one of the purposes of restating the 

bye-laws was to allow the Company to prevent him from becoming a 

member. 

It was held that a company is not bound to recognise trusts of shares; 

the company can only look to the man whose name is upon the 

register. A company is not obliged to recognise a person claiming title 

to shares as transferee until an instrument of transfer in the prescribed 

form has been submitted for registration and has been registered. The 

Company could consider the restatement of the bye-laws without 

regard to the Transferee’s beneficial interest. The material distinction 

was held to be not between legal and beneficial ownership, but 

between members and non-members. Only members have standing to 

challenge a proposed restatement of a company’s bye-laws in the 

courts. 

CONFIDENTIALITY IN TRUST PROCEEDINGS - SECTION 47 OF THE 

TRUSTEE ACT - PRIVACY OF BENEFICIARIES 

BCD Trust [2015] SC (Bda) 83 Civ 

Confidentiality in trust proceedings, especially non-contentious 

proceedings, can be a pressing issue for trustees. Trustees sometimes 

need to obtain the guidance of the Bermuda Court, or the exercise of 

the Court’s broad powers under Section 47 of Bermuda’s Trustee Act, 

on entirely non-contentious issues. The trustees may not, however, 

want undue press attention placed on the beneficiaries. Trustees may 

avoid seeking the assistance of the Court if, by doing so, they might 

undermine their beneficiaries’ privacy. For this reason, trustees often 

seek confidentiality orders, which typically provide that the names of 

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the parties involved can be anonymised in the cause book, for the 

hearing to be heard in private and for subsequent access to court files 

by the public to be restricted. 

Confidentiality, however, is increasingly hard to find in modern courts. 

The courts continually trend towards ever greater transparency. While 

non-contentious trust actions were, in the past, heard in chambers 

(which meant members of the public and the press were in practice, 

left outside), chambers hearings are now held in court rooms to which 

the public have ready access. Further, due to recent procedural 

reforms in Bermuda, court papers held in the Registry are increasingly 

open to public and media scrutiny. 

Thus, confidentiality orders are in increasing demand. They can, 

however, be hard to obtain. In England for example, such orders, even 

in non-contentious matters, are treated as exceptional and only 

granted on the basis of cogent evidence of need (V -v- T [2014] 

EWHC 3432 (Ch) Civ). This effectively means that trustees must show 

evidence of a security risk or dangers such as ‘false friends’ latching on 

to minor beneficiaries. 

In BCD Trust [2015] SC (Bda) 83 Civ, Kawaley CJ in an ex tempore 

ruling adopted a liberal and pragmatic approach. The Chief Justice 

emphasised that the Bermuda Constitution specifically permits the 

Courts to hold hearings in private if it considers it necessary or 

expedient for the protection of the private lives of the persons 

concerned in the proceedings. He also commented that, in the 

absence of any obvious public interest in knowing about internal trust 

administration, it was in the public interest to deal with noncontentious 

trust applications as private hearings. 

Trustees who wish to obtain the Court’s guidance, while protecting the 

privacy of the beneficiaries, can be confident that their privacy will be 

protected. 

COMPANY LAW - SHAREHOLDERS - TEST FOR UNFAIR PREJUDICE 

- APPLICATION TO PUBLIC COMPANIES 

Annuity & Life -v- Kingboard [2015] (Bda) LR 97 

Shareholders who believe that they are being treated unfairly have 

several remedies. One of the most effective can be an unfair prejudice 

petition. Such petitions were historically rare in Bermuda, not least 

because the hurdle is a high one. A petitioner must not only show that 

its interests (as shareholder) have been unfairly prejudiced. It must 

also show that the prejudice is so bad that it would justify the winding 

up of the company on just and equitable grounds. 

In Annuity & Life -v- Kingboard [2015] (Bda) LR 97, Kawaley CJ found 

that this test had been met. What makes the case particularly notable 

is that Kingboard is a company publically listed on the Singapore 

Stock Exchange. 

The shareholder’s allegations in Kingboard were two-fold. The first 

allegation was that Kingboard had intentionally depressed its own 

profitability. The Claim was that Kingboard, which produced copper 

foil and sold it to affiliated companies, had been selling its copper foil 

at an under-value. Shareholders in Kingboard, it was claimed, suffered 

at the expense of shareholders in the affiliated companies. The 

second allegation was that, when minority shareholders raised these 

allegations and blocked Kingboard’s ability to sell its copper foil to 

affiliates, as they had the power to do, Kingboard’s reaction had been 

unreasonable. (Kingboard’s reaction had been to cease producing 

copper foil altogether, instead licensing its production facilities to a 

third party. The third party then proceeded to supply copper foil to 

the same affiliates). 

Much of the trial was taken up with the allegations of transfer pricing 

and allegations as to whether or not the licensing arrangement was a 

sham. Ultimately, Kawaley CJ rejected the transfer pricing allegations 

in their entirety and also rejected the Claim that the license 

arrangement was a form of sham. He did, however, find that 

Kingboard’s reaction (ceasing all production of copper foil) to the 

minority shareholders’ concerns about transfer pricing had been 

unreasonable and “a visible departure from the standards of fair 

dealing”. He concluded that the test for unfair prejudice had been met 

and that the remedy was for the majority shareholders to purchase 

the petitioner’s shares at a price to be assessed. 

Both sides are appealing the Judgment and any appeal will likely not 

be heard until 2017. However, the Kingboard decision shows the 

power of the unfair prejudice petition and that it applies equally to 

publicly listed companies as to private. 

INTERNATIONAL COOPERATION (TAX INFORMATION EXCHANGE 

AGREEMENTS) ACT, 2005 (THE “2005 ACT”) - CONTEMPT - 

COSTS 

Minister of Finance -v- A Company [2015] SC (Bda) 51 Civ (24 July 

2015) 

The Plaintiff alleged that the Defendant Company had failed to comply 

with a Production Order made under the 2005 Act. It was common 

ground that, by the date of the hearing, the Company had in fact 

complied; the Plaintiff therefore sought the imposition of a fine. 

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The Company denied that it had in fact breached the Order, and sought 

an Order that each party bear its own costs. The Company asserted that 

it had only been required to disclose documents that were in existence 

and were in its custody, and also that it was only required to disclose 

documents it considered relevant. The Court held that the wide 

definition of “document” as held in Derby & Co Ltd -v- Weldon (No.9) 

[1991] WLR 652 applied to Production Orders under the Act. The Court 

also held that the scope of ‘information’, which may be requested and 

made the subject of a Production Order under the 2005 Act, is much 

broader than particular documents, as may be requested in foreign 

judicial proceedings. As to relevance, the Court held that it is a matter for 

the Court, not for the Company or its legal advisors to determine. If the 

Company believed that some documents were irrelevant, or the Order 

overly burdensome, it should have applied to Court to vary the Order. 

The Court applied principles from an earlier Bermuda case, namely Joliet 

2010 Ltd -v- Goji Ltd [2012] (Bda) Lr 75. The Court held that the terms of 

the Production Order were clear, certain and unambiguous. The Court 

was satisfied that the Company was in breach of the Production Order. 

However, as the Company had substantially complied with the Order, 

albeit belatedly, the interests of justice did not require any consideration 

of whether the breaches were deliberate. As the Plaintiff had been the, 

de facto, successful party, the Company was ordered to pay its costs. 

The Court reaffirmed that it was in the public’s interest that Bermuda 

comply with its obligations under Tax Information Exchange 

Agreements, in a timely manner, to enhance its reputation in the sphere 

of international tax enforcement. 

DISCLOSURE OF DOCUMENTS USED BY TRUSTEE IN BEDDOE 

PROCEEDINGS - USE OF DOCUMENTS OUTSIDE OF BEDDOE 

PROCEEDINGS - APPLICATION TO VARY CONFIDENTIALITY 

ORDER 

Trustee N and Others -v- The Attorney General and Others [2015] SC 

(Bda) 50 Com (13 July 2015) 

At the outset of the Beddoe proceedings the Plaintiff Trustee obtained 

a Confidentiality Order as is necessary to protect the information 

being disclosed in the proceedings. The Trustee then filed a number of 

affidavits in the proceedings and provided very considerable 

disclosure. 

The Second Defendant applied to discharge or vary the Confidentiality 

Order so as to grant him leave to use a number of specified 

documents for the purpose of other proceedings (“the Main Action”). 

The Second Defendant asserted that the documents were relevant to 

the pleaded causes of action in the Main Action, and would also 

disclose new causes of action in the Main Action, and new causes of 

action in relation to different trusts. 

The traditional view, set out in Midland Bank Trust Co -v- Green [1980] 

Ch. 590, was that no obligation to disclose arose, as the documents 

were obtained in confidential proceedings. However, the Court noted 

that a general principle had developed, that a claimant in a main 

action should be permitted to participate in the Beddoe hearing as 

fully as reasonably practicable. 

In this case, the Confidentiality Order protected the specified 

documents in any event. However, in the absence of the 

Confidentiality Order, as the specified documents were not privileged 

and did not disclose the Trustee’s view of the strengths or weaknesses 

in the Main Action, if the Trustee wished to rely on the specified 

documents, they ought to have been disclosed. 

The Court also held that the purpose of a Beddoe application is to 

allow the Trustees to obtain guidance from the Court, not to provide a 

hostile litigant with ammunition. It was this purpose that underpinned 

the Confidentiality Order. The Second Defendant got to see material 

that he would not otherwise have seen (at least until discovery, if at 

all). But the disclosure of that material in the Beddoe proceedings was 

on condition that it could not be used for any other purpose. 

It was an important consideration that the Trustee had applied for and 

obtained the Confidentiality Order, and that the Second Defendant 

had not sought to vary it until after the documents had been 

disclosed. 

The Court considered that the use of documents following disclosure 

in Beddoe proceedings was analogous to the implied undertaking 

given in civil disclosure generally, although it will be a more onerous 

task to obtain leave to use documents obtained in Beddoe 

proceedings, as there are strong policy reasons militating against 

disclosure. 

The Court, therefore, applied a two-limb test. Firstly, whether there 

were special circumstances, meaning cogent reasons for disclosure, 

that were particular to the facts of the case, which would not normally 

be present in other cases, as opposed to particular examples of 

generic reasons, which might apply to many cases. Secondly, whether 

such disclosure would cause injustice to the disclosing party (in this 

case, the Trustees). 

Applying that test, the Court found that the reasons given by the 

Second Defendant were examples of generic reasons which might 

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apply to many cases, and as such did not amount to special 

circumstances. 

The Court went on to hold that the Second Defendant should receive 

material that would, in fact, be discoverable in the Main Action in any 

event. It was held that there was no specific prejudice to the Trustee 

from this early disclosure, and, if the Second Defendant was then to 

amend the pleadings in the Main Action, he could do so now, rather 

than having to wait until after disclosure. However, the Court stated 

that it would be wrong to waive or dilute the requirement of special 

circumstances for the sake of good case management. The 

application for leave to use the specified documents for purposes 

other than the Beddoe proceedings was therefore dismissed. 

CONTRACT - ENTITLEMENT TO FEES - UNJUST ENRICHMENT - 

MISTAKE 

Kingate Global Fund Limited (In Liquidation) and Others -v- Kingate 

Management Limited and Others [2015] SC (Bda) 65 (25 September 

2015) 

The Plaintiffs were ‘feeder funds’ for the Bernard L. Madoff Investment 

Securities LLC (“BLMIS”). As a result of the Ponzi scheme run by Mr. 

Madoff, the Plaintiff Funds collapsed and were placed in liquidation. 

The Plaintiffs had paid management fees to the First Defendant 

(“KML”). The Defendants sought the determination of a preliminary 

issue, being whether the fees actually paid were in fact payable under 

the various management agreements and, if so, whether the Plaintiffs 

were able to assert a claim in unjust enrichment against KML and the 

other Defendants. The preliminary issue was brought about following 

the decision of the Privy Council in Fairfield Sentry Ltd -v- Migani & 

Others [2014] 1 CLC 611. 

The management agreements provided that the management fees 

would be calculated by reference to the Net Asset Value (“NAV”) of 

the Plaintiffs calculated by the Administrators. The NAV was also used 

to determine the subscription and redemption prices for investors 

and, in the absence of bad faith or manifest error, the NAV calculation 

was binding as between the Plaintiffs and investors. 

Administrator made a manifest error. The Plaintiff also asserted that in 

practice the calculation was not carried out by the Administrator. 

The Court held that in the absence of bad faith or manifest error, the 

NAV, as calculated by the Administrator, was binding as between the 

Plaintiff and KML for the purpose of calculating the management 

fees. The Court also held that the calculation of the NAV was 

undertaken by the Administrator and that, in the absence of bad faith 

or manifest error, the management fees were properly due to KML 

pursuant to the management agreements. A consequence of the 

receipt of the fees, pursuant to a valid contract, is that the receipt 

could not be unjust for the purpose of unjust enrichment and any 

mistake was not such as to avoid the management agreement. 

However, the Court did find that, if the mistake on the part of the 

Plaintiff was induced by the Defendants, then such inducement would 

negate the right to rely on the contract. Thus, the right to payment 

under the contract would not be a defence to the Claim for unjust 

enrichment for those sums in excess of the true NAV. No findings of 

fact were made, however, as to whether there was such an 

inducement. 

In regards to the ‘bad faith’ or ‘manifest error’, it was held that the 

impropriety of Madoff did not transfer to the Administrators so as to 

render the NAV calculation invalid. It was only the bad faith or 

manifest error of the Administrators themselves that was relevant. 

The Court was asked to consider whether, if the facts are found in the 

Plaintiffs’ favour, they would amount to manifest error. The Plaintiffs 

argued that the Administrator should have spotted certain errors, 

which included ignoring or failing to consider and address 

inconsistencies in the information provided by Bernard L. Madoff 

Investment Securities LLC. The Court was not required to resolve the 

disputes of fact, but held that if the facts were as the Plaintiff 

asserted, the Administrator may have made a manifest error. 

The Judge concluded by noting that in order for the Plaintiff to 

succeed in a claim based on mistake, they must first establish fault on 

the part of the Administrator or KML. 

The Plaintiffs alleged that as a result of the fraud committed by 

Madoff, the NAV calculations were massively overstated and the 

management fees were mistakenly overpaid. KML asserted that it was 

contractually entitled to the fees as calculated by the Administrator 

and that the NAV was binding between the Plaintiffs and KML. The 

Plaintiffs’ response was that in calculating the amount, the 

5




COURT OF APPEAL 

INTERLOCUTORY APPEAL - CIVIL PROCEDURE RULES - SETTING 

ASIDE DEFAULT JUDGMENT - WHETHER A PERSON CAN BRING A 

CLAIM IN HIS OR HER BUSINESS NAME AND OBTAIN A DEFAULT 

JUDGMENT 

Deidre Pigott Edgecombe and Nordel Edgecombe -v- Antigua Flight 

Training Centre Claim No. ANUHCVAP2015/0005 (June 2015) 

This Appeal was against the decision of the Court below to refuse to 

set aside judgment obtained in default on the ground that there were 

exceptional circumstances. The Appellant contended that because the 

Claim was commenced in the name of an entity that was not a legal 

person the Judgment obtained was contrary to law because the 

Respondent, not being a juristic person, could not be a party to and 

obtain judgment in respect of the Claim. 

Rule and the omission of the words “a trading name” would not 

render the Claim bad in law and in any event could be rectified by an 

amendment of the Claim. The Court further held that the Claim could 

be brought in the business name (although not a corporate entity at 

the time) since CPR 22.2(2) provides for a Claim to be made by or 

against a person in his or her business name and that the rules 

regarding claims by or against partners apply as if that person had 

been a partner in a firm when the right to claim arose and the 

business name were the firm’s name. 

Although the Appeal was concerned with whether the Appellant had 

shown that exceptional circumstances existed in the context of a set 

aside application, the Court of Appeal observed that since the 

Appellant’s complaint was that the Judgment should be considered a 

nullity or one which was irregular that the true appeal was to the 

Court’s inherent jurisdiction to set aside the Judgment ex debito 

justitiae. Even then, the Court found that the Appellant’s complaint did 

not warrant the exercise of the Court’s inherent jurisdiction. 

The Appeal was heard on paper before the full panel. Dismissing the 

Appeal, the Court held that Civil Procedure Rules (“CPR”) 22.2 (b)(iii) 

allows a person to bring a claim if they were carrying on business in 

the jurisdiction when the right to claim arose, as “X.Y.” followed by the 

words “a trading name”. The Court found that this case fell within that 

6


INTERLOCUTORY APPEAL - DEFAMATION - LIBEL - CIVIL 

PROCEDURE AMENDMENT TO STATEMENT OF CASE AFTER FILING 

- RULE 20.1 OF THE ENGLISH CIVIL PROCEDURE RULES, 2000 - 

FACTORS TO BE TAKEN INTO ACCOUNT IN DECIDING WHETHER 

OR NOT TO ALLOW AMENDMENT TO STATEMENT OF CASE AFTER 

DATE FIXED BY COURT FOR FIRST CASE MANAGEMENT 

CONFERENCE - LEAVE TO AMEND DEFENCE TO INCLUDE 

ADDITIONAL DEFENCE OF JUSTIFICATION 

Mark Brantley -v- Dwight C. Cozier Claim No. SKBHCAP 2014/0027 

This Appeal was against the decision of the Court below refusing 

permission to the Appellant, Mark Brantley to amend his defence and 

refusing his application for a stay of the proceedings pending the 

determination of unrelated proceedings in the Court of Appeal. The 

amendment was sought four years after the Claim was issued. 

Applying the decisions in Charlesworth -v- Relay Roads Ltd. and 

Others [2000] 1 WLR 230, Clarapede & Co. -v- Commercial Union 

Association (1883) 32 WR 262 and George Allert (Administrator of the 

Estate of George Gordon Matheson, deceased) et al -v- Joshua 

Matheson et al GDAHCVAP2014/0007 (delivered 24 November 2014, 

unreported), the Court held that in exercising its discretion in relation 

to amendments the Court should be guided by the general principle 

that amendments should be made where they are necessary to ensure 

that the real question in controversy between the parties is 

determined, provided that such amendments could be made without 

causing injustice to the other party and could be compensated in 

costs. The Court further held that the amendment should be allowed 

regardless of how negligent or careless the omission from the 

statement of case may have been, and no matter how late the 

proposed amendment was. 

CIVIL APPEAL - SETTING ASIDE STATUTORY DEMAND - SECTION 

157(1) AND SECTION 157(2) OF THE INSOLVENCY ACT, 2003 

- WHETHER STATUTORY DEMAND CONTRARY TO ARBITRATION 

CLAUSE IN CONTRACT - WHETHER THE RESPONDENT WAS 

BARRED BY THE CONVENTION ON THE LIMITATION PERIOD IN 

THE INTERNATIONAL SALE OF GOODS (NEW YORK, 1974). 

C-Mobile Services Limited -v- Huawei Technologies Co Limited Claim 

No. BVIHCMAP 2014/0006 (September 2015) 

This Appeal concerned the decision by the Court below to refuse the 

Appellant’s application to set aside the service of a statutory demand 

on it. The Appellant relying on Section 157(1) of the Insolvency Act, 

2003 (the “Insolvency Act”), sought to set aside the statutory demand 

on various grounds, which it was alleged amounted to there being a 

substantial dispute as to the debt. 

Dismissing the Appeal, the Court held that while Section 157(2) of the 

Insolvency Act gives the Court a discretionary power, Section 157(1) 

did not. Moreover, to exercise the discretion given under Subsection 

(2) the Applicant would need to adduce evidence showing that a 

“substantial injustice would be caused”, unless the demand was set 

aside, this had not been done. The Court held that the test for 

determining whether there was a substantial dispute as to a debt was 

as set out in Sparkasse Bregenz Bank AG -v- Associated Capital 

Corporation Appeal 10 of 2002, an earlier decision of the BVI Court of 

Appeal. The Court also found that since the application to set aside 

had not been made under Section 157(2) of the Insolvency Act, the 

Learned Judge was not being asked to exercise a discretion. 

Accordingly, if having examined the evidence, he was of the view that 

a substantial dispute (as distinct from a fanciful or make-believe or 

mere trifling or frivolous one) existed, he was bound to set aside the 

statutory demand. 

CIVIL APPEAL - ARBITRATION - STAY PURSUANT TO SECTION 6(2) 

OF THE ARBITRATION ORDINANCE - APPLICATION FOR 

APPOINTMENT OF LIQUIDATORS - WHETHER ARBITRATION 

CLAUSE IN CONTRACT BROUGHT THE LIQUIDATION 

PROCEEDINGS WITHIN THE AMBIT OF SECTION 6(2) OF THE 

ARBITRATION ORDINANCE 

C-Mobile Services Limited -v- Huawei Technologies Co Limited Claim 

No. BVIHCMAP 2014/0017 (September 2015) 

Here, the issue on appeal was whether the application to appoint 

liquidators should be stayed pursuant to Section 6(2) of the 

Arbitration ordinance, where the agreement under which the 

underlying debt arose contained an arbitration clause. The Court of 

Appeal dismissing the Appeal held, applying Re Sanpete Builders (S) 

Pte. Ltd [1989] 1 MLJ and Community Development Proprietary Ltd 

-v- Engwirda Construction Co. (1969) 120 CLR 455, that, as a starting 

point, the winding up proceedings were not intended to be caught 

within the ambit of the mandatory stay provisions contained in the 

Arbitration Ordinance unless the Arbitration Agreement itself was so 

drawn to encompass such a proceeding. The Court found that under 

the Arbitration Clause of the agreement it was only matters “arising 

out of or in connection with the formation, construction, or 

performance of” the contract that was required to be referred to 

arbitration and that these winding up proceedings were outside the 

stay provisions of the Arbitration Act. 

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CIVIL APPEAL - EX PARTE HEARING - COURT’S COSTS 

JURISDICTION - CIVIL PROCEDURE RULES - SERVICE OUT OF 

JURISDICTION OF NON-PARTY COSTS APPLICATION - WHETHER 

JUDGE ERRED IN DISMISSING APPLICATION TO SERVE PARTY OUT 

OF THE JURISDICTION - RULE 7.3 OF THE ENGLISH CIVIL 

PROCEDURE RULES, 2000 - RULE 7.14 OF THE ENGLISH CIVIL 

PROCEDURE RULES, 2000 - SECTION 11 OF THE EASTERN 

CARIBBEAN SUPREME COURT (TERRITORY OF THE VIRGIN 

ISLANDS) ACT 

Halliwell Assets Inc et al -v- Hornbean Corporation Claim No. 

BVIHCMAP 2014/0017 (October 2015) 

The Appellants were granted costs orders against the Respondent, 

Hornbeam Corporation and by notice of application sought a third 

party costs Order against Mr. Shulman. Mr. Schulman was not a party 

to the Claim and is a foreigner. This Appeal is against the decision of 

the Learned Judge below to grant permission to serve the application 

notice out of the jurisdiction on Re Shulman. The Court of Appeal held 

that although Rule 7.3(10) (on service of a claim where jurisdiction was 

provided for by an enactment) did not apply to an application for third 

party costs, it was fairly arguable that Rule 7.14 could provide the Court 

with the requisite jurisdiction to serve the application out of the 

jurisdiction if Mr. Schulman could be successfully joined to it and the 

Claim would qualify for service out of the jurisdiction. 

While recognising that at first blush Rule 7.14 did not appear to be 

limited to parties who were already parties to an action and after 

examining the relevant English authorities, which construed similar 

provisions under the English Civil Procedure Rules, the Court of Appeal 

recognised that service out of the jurisdiction of an application under 

Rule 7.14 was not permissible without more and it was necessary to 

show that the proceedings in which the application was issued would 

be one which would qualify for service out under one of the gateways 

contained in Rule 7.3. 

CIVIL APPEAL - TRUST DEED - DISCRETIONARY TRUSTS - DEED 

OF APPOINTMENT - POWER OF APPOINTMENT UNDER TRUST - 

WHETHER POWER OF APPOINTMENT IN TRUST DEED PERMITS 

TRUSTEE TO EXCLUDE A NAMED BENEFICIARY FROM THE 

OBJECTS OF A DISCRETIONARY TRUST IN ADVANCE OF 

APPOINTING CAPITAL TO OTHER NAMED BENEFICIARIES 

Re: Royal Fiduciary Group Limited Claim No. BVIHCMAP 2013/0022 

This is an Appeal against the Learned Judge’s refusal to sanction the 

terms of a draft deed of appointment, the effect of which would be to 

disentitle the Settlor from benefiting under the trust deed, on the 

basis, inter alia, that the Trustee had no power to vary the Trust deed 

as contemplated by the draft deed of appointment and would be a 

nullity. 

In allowing the Appeal and granting the declarations sought in the 

Court below, the Court held applying Muir -v- Inland Revenue 

Commissioners [1966] 1 WLR 1269 and Blausten -v- Inland Revenue 

Commissioners [1972] Ch. 256 that a trustee, in the absence of any 

contrary indication and in the face of a power of appointment in the 

Trust deed authorising the Trustee to appoint property among 

beneficiaries could validly appoint property among two or more 

objects of the Trust while excluding altogether one or more objects. 

The Court, after examining the facts of the case, primarily the 

justification for the intended variation, found that it could “see no 

reason based on principle, in terms of the powers of trustees in the 

exercise of powers of appointment under a trust deed, why the trustee 

in this case could not properly exercise the power of appointment 

conferred on him by the trust instrument in excluding the settlor from 

benefiting under the trust, with the resulting increase in the property 

interests available for distribution to the children and remoter issue of 

the settlor, who are obviously the intended beneficiaries of the settlor’s 

benefaction”. 

The Court found that the appropriate course would be for the Court to 

consider the joinder application and to determine it, on its merits, 

along with the non-party costs application and permissions to serve 

out. The Appeal was allowed and the matter remitted to the Court 

below. 

8


INTERLOCUTORY APPEAL - DERIVATIVE PROCEEDINGS - 

INTERPRETATION OF SECTION 184C(2)(C) OF BVI BUSINESS 

COMPANIES ACT, 2004 (AS AMENDED) - MEANING OF ‘LIKELY’ IN 

WORDING ‘WHETHER THE PROCEEDINGS ARE LIKELY TO 

SUCCEED’ - APPEAL AGAINST FINDINGS OF FACT MADE BY 

LEARNED JUDGE 

Basab Inc. -v- Accufit Investment Inc. and Double Key International 

Limited Claim No. BVI HCMAP 2014/0020(November 2015) 

The Appeal concerns the refusal by the Court to grant leave to the 

Appellant pursuant to Section 184C(2)(c) of the BVI Business 

Companies Act, 2004 (as amended) (the “BCA”) to commence 

derivative proceedings on behalf of the first Respondent, for what it 

contends was the sale at an undervalue of the shares in its wholly 

owned subsidiary. 

The Learned Judge’s refusal was based on his Judgment that the 

intention and effect of Section 184C(2)(c), was that for a claim to be 

”likely to succeed” it must be obvious, without any substantial 

consideration of or debate on the merits that it is likely to succeed and 

the proposed Claim must appear to the Court to be self-evidently 

strong without conducting an inquiry. He observed the application for 

leave under Section 184C was not an occasion for painstaking analysis 

of valuation or other evidence and based on a limited examination of 

the evidence found that the Appellant’s Claim was not likely to 

succeed. 

The Court of Appeal dismissed the Appeal. They found that the 

Learned Judge’s interpretation and application of Section 184C(2)(c) 

of the BCA was wrong because it seemed to be moving into the realm 

of requiring a strong likelihood or almost requiring certainty that the 

proceedings would succeed. Applying the case of Cream Holdings 

Limited and Others -v- Banjeree and Others [2004] UKHL 44, the 

Court found that the correct meaning of the phrase “whether the 

proceedings are likely to succeed” in Section 184C(2)(c) of the BCA 

was “whether it is more probable than not that the proceedings will 

succeed”. The Applicant was therefore not required to demonstrate 

that success was an absolute certainty, or that the probability of 

success was very strong. The Court further held that with regard to 

the level of examination of the evidence required in the present case, 

the threshold for the grant of leave to bring derivative proceedings – 

“whether it is more probable than not that the proceedings will 

succeed” – would require a full and proper examination of the 

evidence then before the Court. The Court further held that the 

potential nature of derivative claims, especially those that may be 

both complex and defended, did not predispose themselves to a 

cursory review and required the Court to evaluate the evidence before 

it and the arguments advanced by both parties in order to determine 

“whether the proceedings are likely to succeed”. 

However, having exercised its discretion afresh, the Court held that the 

evidence did not show that the proceedings were likely to succeed 

and dismissed the Appeal on that basis. 

INTERLOCUTORY APPEAL - CIVIL PROCEDURE RULES - 

APPELLANTS’ DEFENCE STRUCK OUT IN COURT BELOW BY 

LEARNED JUDGE FOR NON-COMPLIANCE WITH PREVIOUS ORDER 

OF COURT WHICH REQUIRED THAT COSTS BE PAID PRIOR TO 

LATE FILING OF DEFENCE - JUDGMENT ENTERED FOR 

RESPONDENT IN HER ABSENCE - WHETHER LEARNED JUDGE 

ERRED IN STRIKING OUT APPELLANTS’ DEFENCE AND ENTERING 

JUDGMENT FOR RESPONDENT IN HER ABSENCE - WHETHER 

STRIKING OUT OF DEFENCE AND ENTRY OF JUDGMENT BY 

LEARNED JUDGE WAS CONTRARY TO CIVIL PROCEDURE RULES 

(“CPR”) 27.2(3) AND RULES OF NATURAL JUSTICE 

Agnes Danzie et al -v- Cecil Anthony Claim No. SLUHCVAP 

2015/0009 (December 2015) 

This Appeal is against the decision of the Court below to strike out a 

defence following the failure by the Respondent to satisfy an Order 

that costs be paid prior to the filing of its defence, and to enter 

summary judgment in the Respondent’s absence without taking 

evidence. 

In allowing the Appeal, the Court of Appeal held that while Civil 

Procedure Rule (“CPR”) 26.3(1)(a) gave the Court a discretion to strike 

out a statement of case or part of one where it appears to the Court 

that there has been a failure to comply with a rule, practice direction, 

order or direction given by the Court in the proceedings, it is a 

well-established principle that this power should only be used 

sparingly. The Court further held that in exercising his discretion, the 

Learned Judge was required to consider what was the appropriate 

response having regard to all of the circumstances, including whether 

there were other alternatives available that would be just in the 

circumstances and that having regard to the very wide case 

management powers of a Judge, striking out the Appellants’ defence 

was not an appropriate response to the breach of the order of the 

Learned Judge by the Appellants. (Real Time Systems Limited -v- 

Renraw Investments Limited and Others [2014] UKPC 6 applied). 

9


In relation to the Summary Judgment hearing the Court of Appeal 

held that while CPR 27.2(3) empowered the Court to treat the first 

hearing as a trial of the Claim, and that trial could be dealt with 

summarily, that doing so did not mean entering Summary Judgment. 

The process contemplated by Rule 27.2 (3) required the Claimant to 

prove its case and a trial conducted. The Respondent did not attend, 

so the Court was wrong to enter judgment. 

INTERLOCUTORY APPEAL - STAY OF SPECTRUM AWARD 2015 

PROCESS - CIVIL PROCEDURE RULES - RULE 56.4(8) OF THE 

ENGLISH CIVIL PROCEDURE RULES, 2000 (the “ECPR”) - 

WHETHER A ‘STAY OF PROCEEDINGS’ UNDER ECPR 56.4(8) 

INCLUDES A STAY OF AN ADMINISTRATIVE DECISION OR 

PROCESS - EXERCISE OF JUDICIAL DISCRETION IN GRANTING 

INTERIM RELIEF - INTERIM INJUNCTION AGAINST PUBLIC BODY 

- ASSESSING WHERE BALANCE OF CONVENIENCE LIES - 

DETERMINING RISK OF INJUSTICE 

Telecommunications Regulatory Commission -v- Caribbean Cellular 

Telephone Limited Claim No. BVIHCVAP 2015/0015 (December 2015) 

This Appeal by the Telecommunications Regulatory Commission (the 

“TRC”) was against the decision of the Judge below to stay the 

implementation of the Spectrum Award, 2015 process. The Spectrum 

Award Process as it was called by the TRC was the procedure to be 

adopted for the allocation of spectrum under various bans to mobile 

network operators in the BVI. The Respondent, Caribbean Cellular 

Telephone Limited (“CCT”) was one such operator and successfully 

obtained leave to make a Claim for judicial review of TRC’s conduct, 

generally, including in relation to the Spectrum Award Process. The 

Respondent also obtained a stay of the Spectrum Award Process 

purportedly pursuant to Section 56.4(8) of the ECPR and applied for 

interim injunctive relief. Injunctive relief was refused and the 

Respondent cross-appealed in relation to same. 

In allowing the Appeal and setting aside the stay of the Spectrum 

Award 2015, the Court held following the decision in Ministry of 

Foreign Affairs, Trade and Industry -v- Vehicles and Supplies Ltd [1991] 

1 WLR 55 that the term “proceedings” as used in ECPR 56.4(8) was to 

be confined to proceedings before a lower court or tribunal exercising 

judicial or quasi-judicial functions and would not include an 

administrative decision or action such as the decisions and actions of 

the TRC. The Court also found that if the evidence (as it had done) 

failed to meet the quality for the grant of injunctions, it would similarly 

fail the test for the grant of a stay as the tests for satisfying either were 

to be treated as essentially the same. Consequently, the Court found 

that there was no basis in law or as a matter of discretion for the 

Judge to grant a stay pursuant to Rule 56.4(8). 

As it related to injunctive relief, the Court held applying Regina -v- 

Secretary of State for Transport, Ex parte Factortame Ltd. And Others 

(No. 2) [1991] 1 AC 603 that when dealing with restraining a public 

body, whether from enforcing the law or from performing their public 

duties as required and contemplated by the law, the balance of 

convenience must be looked at more widely by taking into account 

the public interest in the performance of those responsibilities and 

duties with which the public body is tasked and in seeking to arrive at 

a just result in all the circumstances. The Court found that TRC should 

not be restrained from undertaking and performing its duties in 

serving the wider public interest and the balance of convenience was 

not in CCT’s favour when considered in the wider context having 

regard to what the TRC had sought to accomplish given its mandate 

and that allowing the Spectrum Award 2015 process posed the least 

risk of injustice. 

INTERLOCUTORY APPEAL - LOAN AGREEMENT BETWEEN 

APPELLANT AND RESPONDENT - INTERPRETATION OF CLAUSES 

OF MEMORANDUM OF UNDERSTANDING - CONVERSION OF LOAN 

INTO EQUITY - APPOINTMENT OF LIQUIDATORS - WINDING UP 

- WHETHER APPELLANT BECAME SHAREHOLDER OF 

RESPONDENT BY IMPLIED AGREEMENT TO CONVERT LOAN TO 

EQUITY IN RESPONDENT OR WHETHER APPELLANT CONTINUED 

TO BE CREDITOR OF RESPONDENT AND WAS ENTITLED TO 

APPOINT LIQUIDATORS OF RESPONDENT - WHETHER LEARNED 

JUDGE ERRED IN STRIKING OUT APPELLANT’S APPLICATION TO 

WIND UP RESPONDENT ON JUST AND EQUITABLE GROUND - 

STANDING - ARBITRATION - EFFECT OF ARBITRATION 

Jinpeng Group Limited -v- Peak Hotels and Resorts Limited Claim No. 

BVIHCMAP2014/0025 

This was an Appeal against the decision of the Judge below to strike 

out an application to appoint liquidators over the Respondent (the 

“Application”) on just and equitable grounds. The Respondent applied 

to strike out the Application on the grounds that the Appellant had 

impliedly agreed to convert the loan which it had given to the 

Respondent into equity and therefore was not a creditor and did not 

have standing to apply for liquidators on the just and equitable 

ground. 

The Court below in striking out the Application and after carrying out 

a very limited analysis on the nature of the dispute between the 

parties, said that any challenge by the Respondent to the Appellants 

10


standing, other than a hopeless one, would be sufficient to establish a 

sufficient dispute for the purpose of removing the Appellant’s status 

as a creditor. In setting aside the order striking out the Appellants 

Application the Court held, inter alia, (i) following Sparkasse Bregenz 

Bank AG -v- In the Matter of Associated Capital Corporation 

BVIHCVAP2002/0010, that while the Learned Judge was correct to 

observe that the winding up Court should not be used to resolve 

disputes about debts or to decide issues of fact on a summary basis, 

the Court had a duty to carry out a preliminary investigation of the 

facts to determine whether a dispute that a debtor company raises in 

relation to a debt in winding up proceedings is one which has been 

raised on genuine and substantial grounds and thus he erred in failing 

to apply the correct legal test in the circumstances, which was 

whether the dispute raised by the Respondent, was one that was 

raised on genuine and substantial grounds, (ii) notwithstanding that 

the Application was presented by the Appellant as creditor on the just 

and equitable grounds alleging misconduct, it was still a creditor’s 

application and therefore, the applying creditor was seeking a 

collective remedy on behalf of itself and all the other creditors of the 

Respondent, accordingly this was not a Claim by the Appellant to 

recover its debt from the Respondent Company and (iii) while the 

arbitration clauses were designed to resolve disputes between the 

contracting parties, once the Appellant had submitted its dispute to 

the Court as the basis of a creditor’s winding up application, it became 

an issue between the Respondent and its creditors over the 

Company’s ability to pay its debts as they fall due and therefore fell 

outside the scope of Section 18(1) of the Arbitration Act (i.e. the 

Section which provides for a stay of arbitration proceedings). 

decision to dismiss the Appellant’s application for permission to serve 

the Claim out of the jurisdiction on the foreign defendants. The Court 

dismissed the Appeal on the basis that on the alleged scheme taken 

at its highest was nothing more than a failed investment in an illiquid 

real estate development and did not have the trappings of a 

conspiracy to deliberately deprive the Appellants of their investment. 

However, the Court did find that the Learned Judge erred in finding 

that the relationship of principal and agent between the Company and 

its direct/sole shareholder defeated the allegation of conspiracy. 

The Court of Appeal applying Belmont Finance Corporation Ltd. 

-v- Williams Furniture Ltd. and Others [1979] Ch. 250 and Lim Leong 

Huat -v- Chip Hup Hup Kee Construction Pte Ltd [2009] 2 SLR 318 

that a director, even if he/she is the controlling mind of a company, 

could combine with that company to injure a third party in 

circumstances where the company was not the victim, but the 

beneficiary of the conspiracy. 

In so far, it concerned the application for service out of the jurisdiction 

the Court of Appeal held that the Learned Judge was right in finding 

that the BVI was not the appropriate forum for the trial of the 

conspiracy claim notwithstanding that some of the alleged 

conspirators were BVI companies because the Appellants and the 

main parties to the alleged conspiracy were not resident in the BVI 

and the events underlying the claims for breach of trust and 

conspiracy all occurred in Singapore. (Nilon Limited and Another -v- 

Royal Westminster Investments SA and Others [2015] UKPC 2 

applied.) 

INTERLOCUTORY APPEAL - CONSPIRACY - LAWFUL MEANS 

CONSPIRACY - INTENTION TO INJURE - AGENCY - LIABILITY OF 

DIRECTOR FOR CONSPIRACY TOGETHER WITH COMPANY OF 

WHICH HE/SHE IS DIRECTOR - WHETHER LEARNED JUDGE 

EXERCISED HIS DISCRETION IMPROPERLY - APPLICATION BY 

RESPONDENT TO STRIKE OUT APPELLANTS’ CLAIM IN COURT 

BELOW - APPLICATION BY RESPONDENT FOR SUMMARY 

JUDGMENT - APPLICABLE LEGAL TESTS - WHETHER BVI IS 

APPROPRIATE FORUM FOR TRIAL OF APPELLANTS’ CONSPIRACY 

CLAIM 

Lin Chee Keen and Steven Ng -v- Fam Capital Management Limited 

Claim No. BVIHCMAP2015/0002 (December 2015) 

This was an Appeal against the decision of the Learned Judge below 

to strike out the Claim for conspiracy on the basis that a conspiracy 

could not arise between a company and its sole controller and his 

11




COURT OF APPEAL 

CAYMAN ISLANDS TAX INFORMATION AUTHORITY - REQUESTS 

FOR INFORMATION - AUSTRALIAN TAX INFORMATION EXCHANGE 

AGREEMENT 

Cayman Islands Tax Information Authority -v- MH Investments and 

another CICA 31 of 2013 G391/2012 (31 July 2015) 

In February 2011, the Australian Tax Office (the “ATO”) made a request 

of the Cayman Islands Tax Information Authority (the “Authority”) for 

information pursuant to Article 5 of the Australian Tax Information 

Exchange Agreement. The request was in connection with an active 

investigation into the Australian taxation affairs of Mr. Vanda Russell 

Gould (“Mr. Gould”) and Mr. John Scott Leaver (“Mr. Leaver”). The ATO 

had identified that Mr. Gould and Mr. Leaver and their respective 

associated entities had made multiple transactions with offshore 

entities registered in the Cayman Islands. The Cayman Islands entities 

that were identified were J.A. Investments Limited (“JA”) and M.H. 

Investments Limited (“MH”). The ATO was concerned that the 

transactions represented attempts by the Australian residents to 

evade tax properly payable in Australia by establishing offshore 

arrangements. The ATO believed that Mr. Gould and/or Mr. Leaver 

were the ultimate beneficial owners and controllers of JA and MH and 

had omitted income and/or claimed deductions in their Australian tax 

returns. 

In April 2011, following the request from the ATO, the Authority issued 

and served on FCM Limited (the registered agent of JA and MH) a 

notice to produce the information required by the ATO. In order to 

take this step, the Authority was taken to have determined: (i) that the 

request was in compliance with the Australian Tax Information 

Exchange Agreement and (ii) that the information was not required 

for proceedings in Australia or for related investigations. FCM Limited 

provided the information requested on 4 May 2011 and the Authority 

forwarded this information to the ATO. The ATO sent a further request 

for information on 27 May 2011 and the Authority sent to FCM Limited 

two further notices to provide information. On 20 September 2011 the 

Authority sent the information produced by FCM Limited to the ATO. 

Further requests followed and on 19 October 2011, the ATO sent a 

request seeking the Authority’s consent to disclose documents 

obtained from FCM Limited relating to the Cayman Island entities to 

HMRC in the United Kingdom. The ATO also requested consent to use 

the documents obtained from FCM Limited in proceedings before the 

Australian Federal Court, which were subsequently provided by the 

Authority. 

12


On 18 September 2012, JA and MH applied to the Grand Court for 

judicial review of the decisions of the Authority. The relief sought was: 

(i) a declaration that the decisions were ultra vires of the powers 

granted to the Authority by the Law; (ii) an order of certiorari, 

quashing of the decisions and (iii) an order that the Authority provide 

JA and MH with copies of all documents which it held relating to the 

requests. 

Quin J made orders including, amongst others, an order of certiorari 

quashing the decisions of the Authority and a declaration that the 

decisions to comply with the requests from the ATO were unlawful 

because the Authority had failed to apply to the Grand Court under 

the relevant sections of the Tax Information Authority Law (the 

“Law”). 

The Authority appealed challenging the Judges finding that the 

Respondents should have been served with notices of the requests 

under Section 17(c) of the Law. 

The Court of Appeal held that JA and MH were the subjects of the 

requests and on that basis it was bound to find that decisions to 

execute the requests without having served the Section 17(1) notices 

on JA and MH were necessarily ultra vires and dismissed the Appeal. 

It followed that the decisions to serve notices under Section 8(4)(b) of 

the Law, requiring FCM Limited to provide information, were made 

without taking into account material which the Law required that the 

Authority should take into account; and that the Judge of first 

instance was correct to conclude that those decisions should be set 

aside. 

GRAND COURT 

DETERMINATION OF FAIR VALUE - SECTION 238(1) COMPANIES 

LAW - VALUATION ACTION - APPRAISAL ACTION 

In the Matter of the Companies Law (2013 Revision) and In the Matter 

of Integra Group FSD 92 of 2014 (AJJ) (13-17 April and 26 May 2015) 

This is the first time that the Court has considered the meaning of “fair 

value” within Section 238(1) of the Companies Law (2013 Revision) (the 

“Law”). A petition, being described as a “valuation action” or an 

“appraisal action”, was presented by the Integra Group (the “Company”), 

by which the Court was required to determine the fair value of its Class A 

Common Shares in accordance with the provisions of Section 238(11) of 

the Law. 

Under Section 238, dissenting shareholders are not required to accept a 

merger or consolidation agreement which has been approved by the 

requisite majority. Instead, they are entitled to dissent and demand 

payment for the fair value of their shares. Section 238(1) provides that: 

“A member of a constituent company incorporated under this Law shall 

be entitled to payment of fair value of his shares upon dissenting from a 

merger or consolidation.” 

The Company’s offer was not accepted by the dissenting Shareholders 

and after the requisite period a petition was duly presented on 20 

August 2014. The Court was therefore required, in accordance with 

Section 238(11) of the Law, to determine fair value of the dissenting 

Shareholders’ shares and to determine a fair rate of interest, if any, to be 

paid by the Company upon the amount determined to be payable in 

respect of the shares. 

The Court held that the point, immediately before the merger decision 

was made, was the appropriate valuation date (the “Valuation Date”). 

The Court was therefore required to determine the fair value of the 

Company’s business as a going concern at the point immediately before 

the merger was approved, it further held that the fair value of the 

dissenting Shareholders’ shares was held to be their proportionate share 

of this amount without any minority discount or any premium for the 

forcible taking of their shares. 

Section 238 of the Law does not dictate any valuation methodology. 

However, it is well established in both Canadian and Delaware 

jurisprudence that fair value should be proved by techniques or methods 

which are generally considered acceptable in the financial community 

and are otherwise admissible in court. Two expert witnesses were used 

in the case and it was generally accepted and agreed by the witnesses 

that there are three main approaches to an appraisal exercise of the kind 

that was required to be performed by the Court; the market approach, 

the income approach and the cost (or asset based) approach. 

The Court’s approach to the valuation of the Company was to combine 

an income approach, using the discounted cash flow methodology (75% 

weighting) with a market approach, using a guideline public company 

methodology (25% weighting). It was concluded that the fair value of 

the Company at the Valuation Date was US$105 million and the fair value 

of the dissenting Shareholders’ shares at the Valuation Date was their 

proportionate share of US$105 million (US$11.70 per share) without any 

minority discount or premium for forcible taking. 

By Section 238(11) the Court was also required to determine the fair 

value “together with a fair rate of interest, if any, to be paid by the 

13


Company upon the amount determined to be the fair value.” The Court 

determined that a fair rate of interest would be the mid-rate between the 

Company’s assumed return on cash (0.2%) and the Company’s assumed 

USD borrowing rate (9.7%) being 4.95% per annum. 

Costs of the proceedings were ordered at a later hearing and the 

Company was ordered to pay the dissenting Shareholders’ costs, to be 

taxed on a standard basis if not agreed. 

PETITION STRUCK OUT AS ABUSE OF PROCESS - SECTION 95(3) 

COMPANIES LAW - AGREEEMENT NOT TO PRESENT WINDING UP 

PETITION 

In the Matter of the Companies Law (2013 Revision) and in the Matter of 

the Exempted Limited Partnerships Law 2014 and in the Matter of Rhone 

Holdings, L.P. (12-13 August 2015) 

Rhone Holdings, L.P. was a Cayman Islands exempted limited 

partnership (the “Partnership”). The Petitioners, who were all limited 

partners in the Partnership, filed a winding up petition on the just and 

equitable ground, seeking to have the Partnership wound up in 

accordance with the Companies Law (2013 Revision) (the “Law”) and 

the Exempted Limited Partnership Law (2014 Revision) (the “ELPL”). 

The Partnership had two general partners: Rhone Capital (GP) Ltd. 

(“Capital GP”) which was controlled by the Petitioners, and Rhone 

Holdings SLP, L.L.C. (“Holdings GP”) which, along with the Director of 

Holdings GP, was one of the Respondents. 

On the hearing of an, ex parte, application filed with the winding up 

petition, the Court made, amongst other orders, an order appointing 

joint provisional liquidators (“JPLs”) of the Partnership. 

Following this, the Respondents filed a Summons seeking orders and 

directions that the petition be struck out as an abuse of process; that 

the Petitioners pay the Respondents costs occasioned by the Petition 

on the indemnity basis; and that the costs of the JPLs be paid by the 

Petitioners. The Honorable Justice Ingrid Mangatal delivered the 

Judgment and made the orders sought by the Respondents in 

substantially the same terms. 

In reaching the decision, Mangatal J considered a number of clauses in 

the Amended & Restated Limited Partnership Agreement. Clause 5.12, 

which was particularly relevant to the issue in the case, read as follows: 

5.12 Bankruptcy. The parties agree not to cause…the appointment of a 

receiver, trustee, custodian, sequestrator, liquidator, administrator, 

conservator, or similar official for the Partnership or Rhone II, or (b) the 

Partnership or Rhone II to (1) voluntarily commence any proceeding or 

file any petition seeking winding up, liquidation, dissolution, 

reorganization or other relief under any bankruptcy, insolvency, 

receivership or similar law of any jurisdiction now or hereafter in 

effect… 

After considering the relevant sections of the Law and the ELPL, 

Mangatal J determined that if partners can agree that a partnership 

can only be determinable by mutual agreement, they can also agree 

not to present a winding up petition and, specifically in the case, not to 

do any of the other matters set out in Clause 5.12 of the LPA. 

Furthermore, there was no principle of public policy that was offended 

by Clause 5.12; indeed Mangatal J discussed a number of reasons why 

it is, in keeping with public policy, that limited partners are allowed to 

enter into agreements regarding the duration of the limited 

partnership as they think fit. 

WINDING UP PETITION - APPLICATION BY SHAREHOLDERS TO 

STRIKE OUT PETITION ON GROUNDS DIRECTORS NOT 

AUTHORISED 

In the Matter of China Shanshui Cement Group Limited (Unreported, 

25 November 2015) 

The Grand Court of the Cayman Islands confirmed, in a decision by 

Mangatal J, that the directors of a company do not have statutory 

authority to petition the Court to wind up the company (whether the 

company is solvent or insolvent) without the sanction of a resolution 

of shareholders, unless the articles of association of the company 

expressly provide otherwise. 

In this case a winding up petition, submitted by the directors of the 

company, was struck out for lack of standing to file the petition. This 

decision has re-affirmed the application in the Cayman Islands of the 

English case of Re Emmadart Ltd [1979] 1 Ch. 540 in which Brightman 

J had concluded that: 

“The practice which seems to have grown up [in England], under which 

a board of directors of an insolvent company presents a petition in the 

name of the company where this seems to the board to be the sensible 

course, but without reference to the shareholders, is in my judgment 

wrong and ought no longer to be pursued, unless the articles confer 

requisite authority…”. 

The decision restores what was generally understood to have been the 

position under Cayman Islands law until the position was impacted by 

the first instance decision of Jones J in the Cayman Islands case of Re 

China Milk Products Group Ltd [2011] 2 CILR 61 (“Re China Milk”). Jones 

14


J (applying Section 94(2) of the Companies (Amendment) Law, 2007) 

held, in 2011, that the Directors of an insolvent company are entitled to 

present a winding up petition on behalf of a company without 

reference to shareholders and irrespective of the terms of the 

company’s articles. 

Section 94(2), provides as follows: 

“Where expressly provided for in the articles of association of a 

company the directors of a company incorporated after the 

commencement of the Law have the authority to present a winding up 

petition on its behalf without the sanction of a resolution passed at a 

general meeting”. 

Jones J concluded that the Cayman Legislature must have intended 

that Section 94(2) would only apply to solvent companies. 

In this matter, Mangatal J declined to follow the Judgment of Jones J 

in Re China Milk. Although the Company in Re China Shanshui Cement 

was incorporated before 2009 (and hence Section 94(2) was found to 

be irrelevant), Mangatal J concluded that: 

“…whatever the intention of the Legislature may have been, all Section 

94(2) did was to provide statutory confirmation that, as was previously 

held in Re Emmadart, where the articles of association of a company 

expressly authorise its directors to present a winding up petition on its 

behalf, the directors do not also need to obtain the sanction of a 

resolution passed in general meeting”. 

The restriction on directors statutory authority to petition the Court to 

wind up the company, as confirmed by the Re Emmadart case, has 

been criticised (and reversed by statute in England) and not followed 

in some Commonwealth countries. However, as a result of this 

decision, it is now clear that the position in Re Emmadart does 

represent the law in the Cayman Islands. 

Editor’s note – The position in the Cayman Islands should be 

contrasted with the postion in Bermuda where it has been held that 

the directors will have standing to petition on behalf of an insolvent 

company, provided that the bye-laws do not prohibit such an 

application (see Re First Virginia Reinsurance Ltd. [2003] BLR 47). 

This authority has been relied on in order to facilitate director 

instigated petitions in numerous cases since. 

APPARENT BIAS - JUDGES SITTING IN MULTIPLE JURISDICTIONS 

Wael Almazeedi -v- BTU Power Company (in official liquidation) 

(Unreported, 20 November 2015) 

This Appeal considered two important questions. First, when sitting in 

Jurisdiction A in a case concerning parties who are domiciled in 

Jurisdiction B, should a judge disclose their connection with 

Jurisdiction B or even recuse himself? Second, does it make a 

difference that the party domiciled in Jurisdiction B is closely 

connected with the government in Jurisdiction B or that the Judge’s 

status as a judge in Jurisdiction B may depend on the power of the 

government in that jurisdiction to terminate that status? 

Justice Sir Peter Cresswell, a judge of the Financial Services Division of 

the Grand Court of the Cayman Islands, heard the petition for the 

winding up of the Respondent, made a winding up order and 

appointed the Respondent’s liquidators. Cresswell J was also unknown 

to BTU Power Company’s (“BTU”) sole director and chief executive 

officer Mr. Wael Almazeedi (the “Appellant”), a supplementary judge 

of the Qatar International Court. 

The problem with this connection was that a number of the 

preference shareholders in BTU, who had presented the winding up 

petition, were in fact related to the Qatari Government. The concern in 

these circumstances was that the Judge may have been subject to the 

doctrine of apparent bias: that is to say that, in the absence of any 

actual bias, nevertheless the appearances of the thing are such that 

the Judge should not have sat on the case in question. 

The modern test for apparent bias was stated by Lord Hope in Porter 

-v- Magill 1 in these terms: 

“The question is whether the fair-minded and informed observer, 

having considered the facts, would conclude that there was a real 

possibility that the tribunal was biased”. 

In coming to a decision, this particular case required Right Honourable 

Justice Sir Bernard Rix to consider the role that the Minister of Finance 

plays in the appointment and removal of judges in Qatar. The Minister 

of Finance is in fact a pivotal figure in determining certain 

appointments and removals of members of the Court. His Excellency 

Ali Shareef Al Emadi (“Mr. Al Emadi”) was appointed Minister of 

Finance and Chairman of the Council of Ministers on 26 June 2013. The 

appointment of Mr. Al Emadi was significant because he had 

previously been CEO of a subsidiary of one of the original petitioners 

in the winding up, and also significant preference shareholder in BTU. 

1 . [2011] UKHL, [2002] 2 AC 357 AT [103] 

15


After a review of the common law position and applying the modern 

test for apparent bias, Mr. Justice Rix came to the conclusion that as at 

the time when the winding up order was made, the fair-minded and 

informed observer would have concluded that it was not uncommon 

for a judge to have to deal with litigation in which the government of 

the country in which he was a judge was interested. However, in these 

circumstances, where the litigation was brought in a different country 

from that of the government interested in that litigation, it was 

unnecessary for the litigation to be conducted by a judge who was 

also a judge of that government’s country. When the litigation was 

commenced, Mr. Al Emadi was not Minister of Finance and chairman 

of the Council of Ministers in Qatar. The conclusion was that the 

fair-minded and informed observer would not have concluded that 

the Judge’s independence and impartiality were compromised at that 

point. However, the position changed when Mr. Al Emadi became 

Minister of Finance and Chairman of the Council of Ministers. At that 

point Mr. Al Emadi had a direct interest in claims that BTU had made 

against Mr. Wael Almazeedi and in defeating the proofs of debt that 

Mr. Wael Almazeedi had brought against BTU. The fair-minded and 

informed observer, knowing of the role of Mr. Al Emadi, would 

consider that there was a danger that the Judge’s independence and 

impartiality were compromised and in that sense that there was a 

danger of bias. It was held that all Orders of the Judge in the 

proceedings after Mr. Al Emadi was appointed on 26 June 2013 should 

be set aside. 

Judges should therefore disclose their connection with any relevant 

jurisdiction and consider recusing themselves if appropriate, such as if 

a judge is closely connected with the government of that jurisdiction 

and the judge’s status as a judge may depend on that government. 

SECTION 37 OF THE COMPANIES LAW (2007 REVISION) - 

STATUTORY CONSTRUCTION - SHARE CAPITAL - CLAW-BACK 

CLAIMS 

DD Growth Premium 2X Fund (in official liquidation) -v- RMF Market 

Neutral Strategies (Master) Limited (Unreported 20 November 2015) 

In this case, the Cayman Islands Grand Court clarified that redemption 

proceeds paid to investors by insolvent companies out of share 

premium cannot be clawed back by a liquidator under Section 37(6) 

of the Companies Law (2007 Revision) (the “Law”). 

The liquidators of DD Growth Premium 2X Fund (the “Fund”) sought 

an appeal to claw-back redemption payments to RMF Market Neutral 

Strategies (Master) Limited (“RMF”) made at a time when the Fund 

was insolvent. 

The Fund was a feeder fund incorporated in the Cayman Islands, 

which fell into difficulties in late 2008 and early 2009 and faced a 

large number of redemption requests. One such investor was RMF 

whose request gave rise to a liability of more than US$62 million, 

which was paid in part at a time when the Fund was cash flow 

insolvent. 

When the Fund was subsequently wound up it transpired that it had, 

in effect, become a Ponzi scheme. There was no suggestion that any 

of the redeeming investors knew about the fraud. The Fund’s 

liquidators instigated proceedings seeking to recover redemption 

payments in the amount of US$22 million paid to RMF at the end of 

2008. 

Due to the timing of the redemption payments, it was the construction 

of the Law that fell to be considered. 

The Liquidators’ argument was based upon Section 37(6)(a) of the 

Law which provides that: 

“A payment out of capital by a company for the redemption or 

purchase out of its own shares is not lawful unless immediately 

following the date on which the payment out of capital is proposed to 

be made the company shall be able to pay its debts as they fall due in 

the ordinary course of business”. 

The liquidators sought to argue that the payments made to RMF were 

payments made out of capital at a time that the Fund was insolvent 

and that, in effect, payments out of either share capital or share 

premium were impermissible. 

At first instance, the Chief Justice dismissed this argument and found 

that the provisions of Section 37(6)(a) had not been breached as only 

a, de minimis, amount of US$1/1000 per share represented share 

capital, with the remainder representing share premium, the use of 

which was permissible pursuant to the Law. This is the position that is 

found in the current version of the Law. 

On appeal, the Court of Appeal held that Section 37 of the Law must 

be read in conjunction with Section 34 of the Law, which provides that: 

payments by a company out of share premium for the redemption or 

purchase of its own shares are not payments out of capital and as such 

are not subject to any solvency requirement. The Court of Appeal 

attached particular importance to Section 34(2)(f), which refers to the 

use of share premium “for providing for” the premium payable on 

redemption which is held to cover payment for the premium due. 

It is now clear that for the purposes of Section 37(6), share capital is 

given its natural meaning and represents only the par value of shares. 

16


The Judgment of the Court of Appeal makes sound commercial 

common sense and comes as a relief to many investors, as well as a 

disappointment to many liquidators. 

SECTION 145 COMPANIES LAW - PREFERENCE - SECTION 93 

COMPANIES LAW - SOLVENCY 

In the Matter of Weavering Macro Fixed Income Fund Limited (In 

Liquidation) -v- Skandinaviska Enskilda Banken AB (Publ) 

(Unreported, 4 December 2015) 

The Plaintiffs were the Joint Official Liquidators (the “JOLs”) of a 

Cayman fund, Weavering Macro Fixed Income Fund (the “Company”). 

In the months prior to its liquidation, the Company made three 

redemption payments to the defendant, Skandinaviska Enskilda 

Banken AB (Publ) (“SEB”), a Swedish financial institution and investor 

in the Company. In these proceedings the JOLs sought a declaration 

that these three payments were invalid pursuant to Section 145(1) of 

the Companies Law (the “Law”) and an order that those monies be 

returned. 

Magnus Peterson, the Company’s controlling mind in the payment of 

the relevant redemptions, made a decision to pay a number of 

investors, including SEB, in priority, on the basis that those investors 

were switching to another fund within the Weavering group. 

Section 145(1) of the Law provides: 

“Every conveyance or transfer of property, or charge thereon, and 

every payment obligation and judicial proceeding, made, incurred, 

taken or suffered by any company in favour of any creditor at a time 

when the company is unable to pay its debts within the meaning of 

section 93 with a view to giving such creditor a preference over the 

other creditors shall be invalid is made, incurred, taken or suffered 

within six months immediately preceding the commencement of a 

liquidation”. 

Before determining whether the payments were made with a view of 

giving a preference under Section 145(1), Clifford J was required to 

establish whether the Company was “unable to pay its debts within 

the meaning of Section 93”, when each such payment was made. The 

test of inability to pay debts under Section 93(3) is one of commercial 

insolvency, a so-called cash flow test rather than a balance sheet test. 

It is based on a Company’s present inability to pay debts as they fall 

due. Clifford J was satisfied that the JOLs had discharged the burden 

of proving the Company was unable to pay its debts on the relevant 

redemption dates. His Lordship was then required to determine 

whether the relevant redemption payments were made with a view of 

giving a preference under Section 145(1). 

It is important to note that the Cayman Islands legislature has not 

followed the UK in replacing its voidable preference regime. Therefore, 

the English authorities in the former regime there continue to be 

relevant in the Cayman Islands. The Chief Justice reviewed the 

applicable case law in RMF Market Neutral Strategies (Master) Limited 

-v- DD Growth Premium 2X Fund [2011] 2 CILR 61 (“DD Growth”). Prior 

to DD Growth there was limited Cayman authority on the relevant test 

to be applied to determine the question of preference. The Chief 

Justice summarised the principals as follows: 

“The onus is on the person alleging a fraudulent preference to prove to 

the satisfaction of the court that the payment impugned was made by 

the bankrupt with the intention of preferring the payee over his other 

creditors; 

It is competent for the court to draw the inference of an intention to 

prefer from all the facts of the case; 

The intention to prefer, which must be proved, must be the principal or 

dominant intention; there might, however, be a valid distinction 

between an intention to prefer and the motive for that intention”. 

The principles set out by the Chief Justice in DD Growth were 

determined to be applicable to the current case. Therefore, it was 

necessary to show that the intention to prefer SEB was the principal 

or dominant intention when making the redemption payments. 

Clifford J was satisfied that each of the SEB redemption payments 

were made with the principal or dominant intention of preferring SEB 

as a member of a particular class of creditors, the Swedish Redeemers. 

In this case, there was not mere selection, but the added dimension of 

conscious decision making resulting in a particular section for 

payment. An Order was made that SEB repay the sums received from 

the three redemption payments to the JOLs. 

17

INDEX 

CONTENTS BY SUBJECT 

SECTION: 

Injunctions 

2 BERMUDA - SHARE TRANSFER - INJUNCTION TO RESTRAIN COMPANY FROM 

HOLDING SPECIAL GENERAL MEETING TO ADOPT AMENDED BYE-LAWS 

- PRE-EMPTION RIGHTS 

4 BERMUDA - DISCLOSURE OF DOCUMENTS USED BY TRUSTEE IN BEDDOE 

PROCEEDINGS - USE OF DOCUMENTS OUTSIDE OF BEDDOE PROCEEDINGS 

- APPLICATION TO VARY CONFIDENTIALITY ORDER 

Trusts 

2 BERMUDA - CONFIDENTIALITY IN TRUST PROCEEDINGS - SECTION 47 OF 

THE TRUSTEE ACT - PRIVACY OF BENEFICIARIES 

8 BVI - CIVIL APPEAL - TRUST DEED - DISCRETIONARY TRUSTS - DEED OF 

APPOINTMENT - POWER OF APPOINTMENT UNDER TRUST - WHETHER 

POWER OF APPOINTMENT IN TRUST DEED PERMITS TRUSTEE TO EXCLUDE 

A NAMED BENEFICIARY FROM THE OBJECTS OF A DISCRETIONARY TRUST 

IN ADVANCE OF APPOINTING CAPITAL TO OTHER NAMED BENEFICIARIES 

Companies 

2 BERMUDA - SHARE TRANSFER - INJUNCTION TO RESTRAIN COMPANY 

FROM HOLDING SPECIAL GENERAL MEETING TO ADOPT AMENDED 

BYE-LAWS - PRE-EMPTION RIGHTS 

3 BERMUDA - COMPANY LAW - SHAREHOLDERS - TEST FOR UNFAIR 

PREJUDICE - APPLICATION TO PUBLIC COMPANIES 

9 BVI - INTERLOCUTORY APPEAL - DERIVATIVE PROCEEDINGS - 

INTERPRETATION OF SECTION 184C(2)(C) OF BVI BUSINESS COMPANIES ACT, 

2004 (AS AMENDED) - MEANING OF ‘LIKELY’ IN WORDING ‘WHETHER THE 

PROCEEDINGS ARE LIKELY TO SUCCEED’ - APPEAL AGAINST FINDINGS OF 

FACT MADE BY LEARNED JUDGE 

13 CAYMAN ISLANDS - DETERMINATION OF FAIR VALUE - SECTION 238(1) 

COMPANIES LAW - VALUATION ACTION - APPRAISAL ACTION 

16 CAYMAN ISLANDS - SECTION 37 OF THE COMPANIES LAW (2007 REVISION) 

- STATUTORY CONSTRUCTION - SHARE CAPITAL - CLAW-BACK CLAIMS 

Costs 

8 BVI - CIVIL APPEAL - EX PARTE HEARING - COURT’S COSTS JURISDICTION 

- CIVIL PROCEDURE RULES - SERVICE OUT OF JURISDICTION OF NON-PARTY 

COSTS APPLICATION - WHETHER JUDGE ERRED IN DISMISSING APPLICATION 

TO SERVE PARTY OUT OF THE JURISDICTION - RULE 7.3 OF THE ENGLISH 

CIVIL PROCEDURE RULES, 2000 - RULE 7.14 OF THE ENGLISH CIVIL 

PROCEDURE RULES, 2000 - SECTION 11 OF THE EASTERN CARIBBEAN 

SUPREME COURT (TERRITORY OF THE VIRGIN ISLANDS) ACT 

Contract 

5 BERMUDA - CONTRACT - ENTITLEMENT TO FEES - UNJUST ENRICHMENT 

- MISTAKE 

Procedure 

6 BVI - INTERLOCUTORY APPEAL - CIVIL PROCEDURE RULES - SETTING ASIDE 

DEFAULT JUDGMENT - WHETHER A PERSON CAN BRING A CLAIM IN HIS OR 

HER BUSINESS NAME AND OBTAIN A DEFAULT JUDGMENT 

7 BVI - INTERLOCUTORY APPEAL - DEFAMATION - LIBEL - CIVIL PROCEDURE 

AMENDMENT TO STATEMENT OF CASE AFTER FILING - RULE 20.1 OF THE 

ENGLISH CIVIL PROCEDURE RULES, 2000 - FACTORS TO BE TAKEN INTO 

ACCOUNT IN DECIDING WHETHER OR NOT TO ALLOW AMENDMENT TO 

STATEMENT OF CASE AFTER DATE FIXED BY COURT FOR FIRST CASE 

MANAGEMENT CONFERENCE - LEAVE TO AMEND DEFENCE TO INCLUDE 

ADDITIONAL DEFENCE OF JUSTIFICATION 

9 BVI - INTERLOCUTORY APPEAL - CIVIL PROCEDURE RULES - APPELLANTS’ 

DEFENCE STRUCK OUT IN COURT BELOW BY LEARNED JUDGE FOR 

NON-COMPLIANCE WITH PREVIOUS ORDER OF COURT WHICH REQUIRED 

THAT COSTS BE PAID PRIOR TO LATE FILING OF DEFENCE - JUDGMENT 

ENTERED FOR RESPONDENT IN HER ABSENCE - WHETHER LEARNED JUDGE 

ERRED IN STRIKING OUT APPELLANTS’ DEFENCE AND ENTERING JUDGMENT 

FOR RESPONDENT IN HER ABSENCE - WHETHER STRIKING OUT OF 

DEFENCE AND ENTRY OF JUDGMENT BY LEARNED JUDGE WAS CONTRARY 

TO CIVIL PROCEDURE RULES (“CPR”) 27.2(3) AND RULES OF NATURAL 

JUSTICE 

10 BVI - INTERLOCUTORY APPEAL - STAY OF SPECTRUM AWARD 2015 PROCESS 

- CIVIL PROCEDURE RULES - RULE 56.4(8) OF THE ENGLISH CIVIL 

PROCEDURE RULES, 2000 (the “ECPR”) - WHETHER A ‘STAY OF 

PROCEEDINGS’ UNDER CPR 56.4(8) INCLUDES A STAY OF AN 

ADMINISTRATIVE DECISION OR PROCESS - EXERCISE OF JUDICIAL 

DISCRETION IN GRANTING INTERIM RELIEF - INTERIM INJUNCTION AGAINST 

PUBLIC BODY - ASSESSING WHERE BALANCE OF CONVENIENCE LIES - 

DETERMINING RISK OF INJUSTICE 

18

INDEX 

Arbitration 

7 BVI - CIVIL APPEAL - ARBITRATION - STAY PURSUANT TO SECTION 6(2) OF 

THE ARBITRATION ORDINANCE - APPLICATION FOR APPOINTMENT OF 

LIQUIDATORS - WHETHER ARBITRATION CLAUSE IN CONTRACT BROUGHT 

THE LIQUIDATION PROCEEDINGS WITHIN THE AMBIT OF SECTION 6(2) OF 

THE ARBITRATION ORDINANCE 

Insolvency/Winding Up/Liquidation 

Tax Information Exchange Agreements 

3 BERMUDA - INTERNATIONAL COOPERATION (TAX INFORMATION EXCHANGE 

AGREEMENTS) ACT, 2005 (THE “2005 ACT”) - CONTEMPT - COSTS 

12 CAYMAN ISLANDS - CAYMAN ISLANDS TAX INFORMATION AUTHORITY 

- REQUESTS FOR INFORMATION - AUSTRALIAN TAX INFORMATION 

EXCHANGE AGREEMENT 

7 BVI - CIVIL APPEAL - SETTING ASIDE STATUTORY DEMAND - SECTION 157(1) 

AND SECTION 157(2) OF THE INSOLVENCY ACT, 2003 - WHETHER 

STATUTORY DEMAND CONTRARY TO ARBITRATION CLAUSE IN CONTRACT - 

WHETHER THE RESPONDENT WAS BARRED BY THE CONVENTION ON THE 

LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS (NEW YORK, 

1974) 

10 BVI - INTERLOCUTORY APPEAL - LOAN AGREEMENT BETWEEN APPELLANT 

AND RESPONDENT - INTERPRETATION OF CLAUSES OF MEMORANDUM OF 

UNDERSTANDING - CONVERSION OF LOAN INTO EQUITY - APPOINTMENT OF 

LIQUIDATORS - WINDING UP - WHETHER APPELLANT BECAME 

SHAREHOLDER OF RESPONDENT BY IMPLIED AGREEMENT TO CONVERT 

LOAN TO EQUITY IN RESPONDENT OR WHETHER APPELLANT CONTINUED 

TO BE CREDITOR OF RESPONDENT AND WAS ENTITLED TO APPOINT 

LIQUIDATORS OF RESPONDENT - WHETHER LEARNED JUDGE ERRED IN 

STRIKING OUT APPELLANT’S APPLICATION TO WIND UP RESPONDENT ON 

JUST AND EQUITABLE GROUND - STANDING - ARBITRATION - EFFECT OF 

ARBITRATION 

14 CAYMAN ISLANDS - PETITION STRUCK OUT AS ABUSE OF PROCESS 

- SECTION 95(3) COMPANIES LAW - AGREEEMENT NOT TO PRESENT 

WINDING UP PETITION 

14 CAYMAN ISLANDS - WINDING UP PETITION - APPLICATION BY 

SHAREHOLDERS TO STRIKE OUT PETITION ON GROUNDS DIRECTORS NOT 

AUTHORISED 

17 CAYMAN ISLANDS - SECTION 145 COMPANIES LAW - PREFERENCE - SECTION 

93 COMPANIES LAW - SOLVENCY 

Administrative Law – Judicial Review 

11 BVI - INTERLOCUTORY APPEAL - CONSPIRACY - LAWFUL MEANS 

CONSPIRACY - INTENTION TO INJURE - AGENCY - LIABILITY OF DIRECTOR 

FOR CONSPIRACY TOGETHER WITH COMPANY OF WHICH HE/SHE IS 

DIRECTOR - WHETHER LEARNED JUDGE EXERCISED HIS DISCRETION 

IMPROPERLY - APPLICATION BY RESPONDENT TO STRIKE OUT APPELLANTS’ 

CLAIM IN COURT BELOW - APPLICATION BY RESPONDENT FOR SUMMARY 

JUDGMENT - APPLICABLE LEGAL TESTS - WHETHER BVI IS APPROPRIATE 

FORUM FOR TRIAL OF APPELLANTS’ CONSPIRACY CLAIM 

15 CAYMAN ISLANDS - APPARENT BIAS - JUDGES SITTING IN MULTIPLE 

JURISDICTIONS 

19

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Conyers Offshore Case Digest (Issue No.11 April - December 2015)

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