Sinel Trust Anguilla Ltd v A.G of Anguilla et Al

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Edwards J
• Judgment Date: 27 August 2003
• Neutral Citation: AI 2003 HC 5
• Docket Number: NO. AXAHCV 2002/20
• Date: 27 August 2003

High Court

Edwards, J.

NO. AXAHCV 2002/20

Sinel Trust Anguilla Ltd

and

A.G of Anguilla et al

Appearances:

Mr. James Corbett QC, Mr. Lynton Tucker QC, Mr. Kenneth Porter and Mrs. Cora Richardson Hodge of Counsel instructed by Keithley Lake and Associates,

Solicitors for the claimants;

Mr. Mark Brantley, Counsel for the 2 ^nd and 3 ^rd defendants;

Mr. Robert Hildyard QC with Mr. Jonathon Wheeler and Solicitor Mr. Harry Wiggin, instructed by Webster Dyrud Mitchell, Solicitors for the 4 ^th defendant;

The 1 ^st defendant having been given notice of the application but not appearing nor being represented.

Trusts - Trustees — Dispute between beneficiaries of a settlement as to the proportion of their interests in a fund established under the laws of Anguilla — Application for surrender of discretion of trustees to court — Court will only allow this in special circumstances

SEALED DECISION

Edwards J

1 This is a determination of the Application by a Trustee brought under Part 67.4 of the CPR 2000, seeking the court's approval of the Trustee's compromise of legal proceedings, and the surrender of its discretion to the court. Because of the nature of the proceedings this decision is to be sealed.

2 The claimant, Sinel Trust Anguilla Limited (STAL) is the Trustee of a settlement known as the AMBER EMPLOYMENT BENEFIT TRUST (AEBT.)

3 The 1 ^st defendant, The Attorney General of Anguilla, ceased being a party to these proceedings by a ruling of this Court on the 11 ^th April, 2002.

4 The 2 ^nd and 4 ^th defendants, Mr. John Felix Bender and Mr. John Koonmen are the two principal beneficiaries to the AEBT fund. The 3 ^rd defendant, Ms. Anne Maxine Patton is the wife of Mr. Bender, and also a beneficiary of the AEBT. Both Mr. Bender and Mr. Koonmen are American citizens, but Mr. Bender resides in Costa Rica and Mr. Koonmen in Japan.

5 As a result of differences between Mr. Bender and Mr. Koonmen, concerning, among other things, the proportion of their interests in the AEBT fund, Mr. Koonmen commenced proceedings in the Jersey Royal Court of the island of Jersey against eight defendants including Mr. Bender and STAL on the 30 ^th November, 2001.

6 The settlement of the AEBT was established under the laws of Anguilla. The forum of administration is Anguilla.

7 On the 20 ^th December, 2001 Mr. Koonmen applied for and obtained an Order for service of the proceedings outside of the jurisdiction on five defendants including STAL and Mr. Bender, requiring their appearance before the Jersey Royal Court on the 8 ^th February, 2002.

8 By a fixed date claim filed on the 27 ^th March, 2002, pursuant to Sections 57 and 58 of the Trusts Act Revised Laws of Anguilla; Cap. T70, Part 67.4 of the CPR 2000, and the inherent jurisdiction of the court, STAL sought directions as to how to address the issues raised by and in the Jersey proceedings.

EVENTS PRECIPITATING COMPROMISE

9 STAL and another Anguilla Defendant, Amber Investment Advisors Ltd. (Anguilla) (AIA) having been served with the Jersey process, issued a summons on the 25 ^th February, 2002 seeking leave from the Royal Court to set aside service out of the jurisdiction or a stay on grounds of forum non conveniens.

10 STAL sought and obtained directions from the Anguilla court on the 30 ^th April, 2002 concerning the Jersey proceedings.

11 On the 19 ^th June, 2002 the Jersey Royal Court dismissed the Summons dated 25 ^th February, 2002.

12 The Anguilla court again gave directions to STAL on the 18 ^th September, 2002, authorizing STAL to pursue an appeal against the decision of the Jersey Royal Court.

13 The Jersey Court of Appeal allowed the appeal on the 14 ^th November, 2002, set aside the Order granting leave to serve STAL out of the jurisdiction, and stayed the Jersey proceedings. Mr. Koonmen was ordered to pay the costs of STAL and the other defendants in the Jersey action.

14 Settlement discussions subsequently took place between Mr. Koonmen and Mr. Bender, resulting in a settlement letter dated 30 ^th December, 2002 signed by both of them.

15 The substance of this letter in summary, states that they wish to bring the Jersey and the Anguilla proceedings speedily to an end on the proposed terms, with provision for release of all claims between them. That upon the execution of a settlement agreement and any other necessary and appropriate agreements and documents by the other parties to the Jersey and Anguilla proceedings, both proceedings will come to an end. They express their intention for the letter to be legally binding on both of them. Their wishes have been communicated to STAL and all the other seven Jersey Defendants, who have been involved in the discussions regarding the proposed terms of settlement.

APPLICATIONS AND FIRST HEARING

16 As a consequence of the settlement letter and other settlement arrangements, and proposals in the spirit of compromise, STAL approached this Court on the 11 ^th June, 2003, seeking, among other things, to amend the Fixed Date Claim.

17 The amendment which was granted on the 17 ^th June, 2002 addressed STAL'S need for further directions from the court regarding the compromise settlement.

18 At the hearing of the Ammended Fixed Date Claim, the court heard submissions from Mr. Corbett QC, who amplified the skeleton arguments filed on the 17 ^th June, 2003. Counsel for the other parties, QC Mr. Hildyard and Mr. Brantley were supportive of STAL's Application. Since negotiations were still in progress concerning the draft Settlement Agreement, the Application had to be adjourned.

19 The matter was part heard and adjourned for the 8 ^th Affidavit of Mr. Joseph Brice to be filed, along with further written submissions from counsel for STAL.

20 The final draft Settlement Agreement was filed on the 2 ^nd July, 2003, with some revised terms. This has necessitated the filing of another application, requesting further amendment of the Amended Fix Date Claim form, and the validation of Mr. Joseph Brice's 9 ^th Affidavit filed on the 2 ^nd July, 2003.

21 The further amendment is necessary so that the directions sought by way of relief will reflect the relevant changes in the terms of the Settlement Agreement. Paragraph (3A) (f) of the Ammended Claim has been further amended, and a new paragraph (3B) has been added.

22 I also have before me the affidavits of counsel, Mr. Mark Brantley and Solicitor Mr. Harry Wiggin who support this Application.

23 Although the draft Re-ammended Fixed Date Claim Form has not been verified by the Claimant, I have permitted the Ammended Claim Form to be further amended in terms of the draft Re-ammended Claim Form filed on the 30 ^th June, 2003. The Re-amended Claim Form duly verified, is to be filed and served within five days from the date of the delivery of this decision.

24 The 9 ^th Affidavit of Joseph Brice sworn to on the 30 ^th June, 2003 and filed on the 2 ^nd July 2003 is deemed to have been validly filed.

25 I turn now to consider the Order requested in the unsigned draft Fixed Date Re-amended Claim.

THE RELIEF SOUGHT

26 By paragraphs (3A) STAL has basically asked this Court to allow STAL to surrender its discretion to the court regarding the matters set out at paragraphs (3A) (a) to (f). If I accede to this request, then I will be exercising the discretion which the law gives to Trustees.

27 The powers of the Trustee under Section 32 and Schedule 2 paragraph 4 (14) of the Trusts Act Cap T 70 (Anguilla), include the power to institute, prosecute and defend any suits or other proceedings affecting the Trustee or the Trust Fund, and to compromise any matter of difference.

28 Section 56 (1) (a) (i) of Cap. T 70 gives the court power to make an order concerning the execution, administration or enforcement of the trust on the application of the Trustee.

29 Part 67.4 (1) (b) and (2) (b) of the CPR 2000 permits a Trustee to issue a claim for the determination of any question arising in the execution of or under a trust.

30 Part 67.4 (1) (a) and (3) (a) of the CPR 2000 allows the Trustee to apply for an order approving any compromise or other transaction.

31 Under Part 67.4 (1) (a) and (3) (b), the court can make an order directing any act to be done in the execution of a trust which the court could order to be done if the trust was being administered or executed under the directions of the court.

32 Although the Trusts Act and the CPR embody the present proceedings, it is the common law that establishes the guidelines regarding the surrender of the Trustee's discretion to the court.

33 It is most unlikely that the court will be persuaded to accept the surrender of the Trustee's discretion in the absence of special circumstances, and where the Trustee is in a better position than the court to know what is in the best interest of the beneficiaries. The court will be persuaded to accept the Trustee's surrender of its discretion in special circumstances, or for a good reason where the trustee is disabled because of conflict of interest (Per Hart J. in Public Trustee v. Cooper [2001] WILR 901, 922 para G.)

34 As the law requires, STAL has put this Court in possession of all the material necessary for me to determine whether such special...