Globe-X Management Ltd et Al v Johnson et Al

• Jurisdiction: Anguilla
• Judge: Gordon J.A.
• Judgment Date: 23 May 2005
• Neutral Citation: AI 2005 CA 3
• Docket Number: Civil Appeal No. 4 of 2003
• Court: Court of Appeal (Anguilla)
• Date: 23 May 2005

Court of Appeal

Alleyne, C.J. (Ag.); Gordon, J.A.; Barrow, J.A. (Ag.)

Civil Appeal No. 4 of 2003

Globe-X Management Limited et al

and

Johnson et al

Appearances:

Mr. Kenneth Porter with Ms. Merlene Barrette for the first appellants.

Mr. Patrick Patterson with Ms. Eustelle Fontaine for the second appellant.

Mr. Robert Hildyard Q.C. with Mr. James Hilsdon for the respondents.

Conflict of laws - Foreign winding up order — Jurisdiction of foreign Court — Recognition — Discretion comity — Companies incorporated in Bahamas re — domicile in Anguilla — Winding up order made in Bahamas and respondents appointed liquidators — Whether order to be recognised in Anguilla — Trial judge making order of recognition — Appeal — International Business Companies Act — Law applicable to insolvency proceedings — Whether trial judge misdirecting herself — East Caribbean Supreme Court Act, s.10 — Power of judge to apply practice and procedure in force in England in absence of local rules — Finding that winding up petition presented to Bahamian Courts prior to re — domiciliation of companies and Bahamian Courts had jurisdiction to hear petition — Appeal dismissed.

Gordon J.A.

1 This appeal arose out of judgment of the High Court on an application made by the respondents that the winding-up, and their appointment as joint liquidators, of the first appellants (hereafter “the Globe-X companies”) be recognised and given full effect in the jurisdiction of Anguilla together with a number of other Orders ancillary to the principal request.

2 The Globe-X companies were incorporated in the Bahamas some time in the early 1990s and carried on business as investment managers trading in commodity future contracts and government securities globally. On the 12th July 2002 two petitions for winding up were filed in the Supreme Court of the Commonwealth of the Bahamas. The petitioner was a company called Cinar Corporation. Also on the 12th July 2002 the Globe-X companies were re-domiciled in Anguilla as International Business Companies. The learned trial judge found as a fact that the Certificate of Continuation was issued by the Registrar of Companies in Anguilla at about 4.00 pm. Crucially, the learned trial judge found that the petitions for winding-up had been presented in the Bahamas before that hour. In other words, as between the petitions and the Certificate of Continuation, the petitions were first in time.

3 Silicon Isle Limited, the second appellant (hereafter “Silicon”) is a company incorporated in Anguilla. On or about 14th May 2002, (some two months before the re-domiciliation of the Globe-X companies to Anguilla) Silicon became the sole shareholder of the Globe-X companies having purchased the shares from the previous shareholder. On that date, Silicon alleges, it also became a creditor of the Globe-X companies in the sum of some US $29 million.

4 The learned trial judge on May 12, 2003 granted an Order that the Winding-up of the Globe-X companies by the Bahamian Court and the appointment of the liquidators, the respondents, be recognised and given full effect in the jurisdiction of Anguilla together with a number of ancillary orders as sought by the respondents. The liquidators were armed with a ‘letter of request’ from the Bahamian Court seeking the Anguillan Court's assistance in the interests of justice and good international relations. Written reasons for the decision were delivered shortly after.

5 The Globe-X companies appealed on three grounds, namely, (i) that the learned trial judge misdirected herself as to the law applicable to insolvency proceedings in Anguilla having regard to the specific language in the International Business Companies Act; (ii) that the learned trial judge erred in law in holding that the Bahamian Court had jurisdiction to make the winding-up orders at all; and, (iii) that the trial judge was wrong in law in holding that the foreign liquidation in the Bahamas fell within the established bases of recognition at Common Law and that equity, convenience and comity demand that a foreign liquidation should be recognised by this Court. Silicon also appealed against the trial judge's Order on the same three grounds.

6 I will deal with the second ground of appeal first, to wit that the learned trial judge erred in law in holding that the Bahamian Court had jurisdiction to make the winding-up orders at all. It will be recalled that the learned trial judge found as a fact that the winding-up petition had been presented in the Bahamian Courts prior in time to the re-domiciliation of the Globe-X companies in Anguilla. Learned counsel for the Globe-X companies conceded in response to a question by the Court that in Anguilla a winding-up order related back to the filing of the petition. However, it was his position that whilst this might be so in Anguilla, the Court would be unable to state that this was so in Bahamas in the absence of expert evidence on Bahamian law.

7 In Dicey & Morris, The Conflict of Laws 13th Edition at paragraph 9-001 the learned authors state the following as Rule 18:

• “(1) In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or sometimes by certain other means.

• “(2) In the absence of satisfactory evidence of...