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

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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 <strong>2015</strong> 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
Page 1 and 2: APRIL 2015 - DECEMBER 2015 ISSUE NO
Page 3 and 4: ABOUT THE DIGEST The Offshore Case
Page 5 and 6: BERMUDA the parties involved can be
Page 7 and 8: BERMUDA apply to many cases, and as
Page 9 and 10: BRITISH VIRGIN ISLANDS INTERLOCUTOR
Page 11 and 12: BRITISH VIRGIN ISLANDS INTERLOCUTOR
Page 13 and 14: BRITISH VIRGIN ISLANDS standing, ot
Page 15 and 16: CAYMAN ISLANDS On 18 September 2012
Page 17 and 18: CAYMAN ISLANDS J (applying Section
Page 19: CAYMAN ISLANDS The Judgment of the

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

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