Conyers Offshore Case Digest (Issue No.11 April - December 2015)
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.
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.
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
BRITISH VIRGIN ISLANDS<br />
standing, other than a hopeless one, would be sufficient to establish a<br />
sufficient dispute for the purpose of removing the Appellant’s status<br />
as a creditor. In setting aside the order striking out the Appellants<br />
Application the Court held, inter alia, (i) following Sparkasse Bregenz<br />
Bank AG -v- In the Matter of Associated Capital Corporation<br />
BVIHCVAP2002/0010, that while the Learned Judge was correct to<br />
observe that the winding up Court should not be used to resolve<br />
disputes about debts or to decide issues of fact on a summary basis,<br />
the Court had a duty to carry out a preliminary investigation of the<br />
facts to determine whether a dispute that a debtor company raises in<br />
relation to a debt in winding up proceedings is one which has been<br />
raised on genuine and substantial grounds and thus he erred in failing<br />
to apply the correct legal test in the circumstances, which was<br />
whether the dispute raised by the Respondent, was one that was<br />
raised on genuine and substantial grounds, (ii) notwithstanding that<br />
the Application was presented by the Appellant as creditor on the just<br />
and equitable grounds alleging misconduct, it was still a creditor’s<br />
application and therefore, the applying creditor was seeking a<br />
collective remedy on behalf of itself and all the other creditors of the<br />
Respondent, accordingly this was not a Claim by the Appellant to<br />
recover its debt from the Respondent Company and (iii) while the<br />
arbitration clauses were designed to resolve disputes between the<br />
contracting parties, once the Appellant had submitted its dispute to<br />
the Court as the basis of a creditor’s winding up application, it became<br />
an issue between the Respondent and its creditors over the<br />
Company’s ability to pay its debts as they fall due and therefore fell<br />
outside the scope of Section 18(1) of the Arbitration Act (i.e. the<br />
Section which provides for a stay of arbitration proceedings).<br />
decision to dismiss the Appellant’s application for permission to serve<br />
the Claim out of the jurisdiction on the foreign defendants. The Court<br />
dismissed the Appeal on the basis that on the alleged scheme taken<br />
at its highest was nothing more than a failed investment in an illiquid<br />
real estate development and did not have the trappings of a<br />
conspiracy to deliberately deprive the Appellants of their investment.<br />
However, the Court did find that the Learned Judge erred in finding<br />
that the relationship of principal and agent between the Company and<br />
its direct/sole shareholder defeated the allegation of conspiracy.<br />
The Court of Appeal applying Belmont Finance Corporation Ltd.<br />
-v- Williams Furniture Ltd. and Others [1979] Ch. 250 and Lim Leong<br />
Huat -v- Chip Hup Hup Kee Construction Pte Ltd [2009] 2 SLR 318<br />
that a director, even if he/she is the controlling mind of a company,<br />
could combine with that company to injure a third party in<br />
circumstances where the company was not the victim, but the<br />
beneficiary of the conspiracy.<br />
In so far, it concerned the application for service out of the jurisdiction<br />
the Court of Appeal held that the Learned Judge was right in finding<br />
that the BVI was not the appropriate forum for the trial of the<br />
conspiracy claim notwithstanding that some of the alleged<br />
conspirators were BVI companies because the Appellants and the<br />
main parties to the alleged conspiracy were not resident in the BVI<br />
and the events underlying the claims for breach of trust and<br />
conspiracy all occurred in Singapore. (Nilon Limited and Another -v-<br />
Royal Westminster Investments SA and Others [<strong>2015</strong>] UKPC 2<br />
applied.)<br />
INTERLOCUTORY APPEAL - CONSPIRACY - LAWFUL MEANS<br />
CONSPIRACY - INTENTION TO INJURE - AGENCY - LIABILITY OF<br />
DIRECTOR FOR CONSPIRACY TOGETHER WITH COMPANY OF<br />
WHICH HE/SHE IS DIRECTOR - WHETHER LEARNED JUDGE<br />
EXERCISED HIS DISCRETION IMPROPERLY - APPLICATION BY<br />
RESPONDENT TO STRIKE OUT APPELLANTS’ CLAIM IN COURT<br />
BELOW - APPLICATION BY RESPONDENT FOR SUMMARY<br />
JUDGMENT - APPLICABLE LEGAL TESTS - WHETHER BVI IS<br />
APPROPRIATE FORUM FOR TRIAL OF APPELLANTS’ CONSPIRACY<br />
CLAIM<br />
Lin Chee Keen and Steven Ng -v- Fam Capital Management Limited<br />
Claim No. BVIHCMAP<strong>2015</strong>/0002 (<strong>December</strong> <strong>2015</strong>)<br />
This was an Appeal against the decision of the Learned Judge below<br />
to strike out the Claim for conspiracy on the basis that a conspiracy<br />
could not arise between a company and its sole controller and his<br />
11