Feb 2016
CAYMAN ISLANDS
GRAND COURT
CONTRIBUTORY’S WINDING UP PETITION – JUST AND EQUITABLE – LOSS OF SUBSTRATUM – OPPRESSION, WILFUL DISREGARD AND UNDERMINING APPLICANT’S RIGHTS AND INTERESTS – LACK OF PROBITY AND LOSS OF CONFIDENCE IN MANAGEMENT – INVESTIGATION OF COMPANY’S AFFAIRS
The Learned Judge, Mangatal J, dismissed the windingup petition after considering all the affidavit evidence and cross examination of the Parties (which was ordered previously in December 2015 with reasons to follow which are set out below). The Petitioner’s reasons for the Fund to wind up on just and equitable grounds were: (a) loss of substratum; (b) oppression, wilful disregard and undermining of the Petitioner’s and the Investor Group’s rights and interests; (c) lack of probity and loss of confidence in management; and (d) the need for an independent investigation.
Mangatal J adopted the approach set out in Banco Economico S.A.-v- Allied Leasing and Finance Corporation [1998] CILR 92 in which the Learned Smellie J (as he then was) referred to In Re ABC Coupler & Engr Ltd [1962] 1 WLR 136 and considered by Templeman J in In Re Armvent [1975] 1 WLR 1679 that “where grave charges” are made “against individuals the court could not in the exercise of its discretionary jurisdiction be satisfied with prima facie evidence but require the petitioner to substantiate his case more fully…which would require where practicable the evidence of witnesses with direct knowledge…and upon which they could be cross examined…”. Further, Mangatal J referred to CWR O. 3, R. 11(2)(h) in which the Court may give directions regarding cross examination and that the true nature of the issues in the case is what must be considered.