Privy Council
Advising Convoy Global Holdings Limited, which resulted in the recent landmark Privy Council decision in London of Convoy Collateral Ltd (Appellant) v Cho Kwai Chee (also known as Cho Kwai Chee Roy) (Respondent) (British Virgin Islands) which materially changed common law freezing injunctions for the first time in 44 years.
Advising a client on the successful winding up of a BVI joint venture company, with substantial shipping interests in Asia, on just and equitable grounds arising from irretrievable deadlock at board and shareholder level. The Eastern Caribbean Court of Appeal had overturned the first instance decision to appoint liquidators and the Privy Council subsequently was asked to consider whether the Court of Appeal had been correct to interfere in the first instance findings of fact and exercise of discretion to appoint liquidators. The Privy Council allowed the appeal, ruling on the novel point of law of when deadlock must be established.
Privatisation
Acting as Cayman Islands counsel to China Biologic Products Holdings, Inc. on its take-private transaction valued at approximately US$4.76 billion.
Shareholder disputes
Acting for the majority shareholders of a Hong Kong-based airline in a high-profile shareholder dispute. The airline is owned and operated through a BVI holding company, with a mix of Cayman Island, BVI, and Hong Kong subsidiaries. Harneys assisted the client shareholders to take control of the board of directors of the BVI company and its group entities, which in turn led to taking control of the operation of the airline. Injunctions were obtained for the clients in BVI and Hong Kong to prevent interference in the ownership and operation of the group.
Acting for the majority shareholders of a BVI company that owned and operated a charter airline business in South Africa. The case set a precedent before the BVI courts on the valuation of shares on a buy-out.
Acting in a shareholders’ dispute concerning the operation of a BVI company which holds a significant stake in a high-value luxury residential development in Macau. The derivative proceedings included claims for breach of fiduciary duties, fraud, and relief under the member remedies provisions of the BVI Business Companies Act.
Acting in BVI proceedings defending a claim arising from a shareholder dispute raising issues of corporate governance and the interplay of a terminated shareholders agreement. Successfully opposed injunctive relief in the BVI and obtained a stay of the BVI proceedings in favour of arbitration.
Fund disputes
Acting in BVI proceedings as to the status of failed subscription money for an investment into a Madoff exposed fund. The subscription money was paid into an account in Bermuda operated by the BVI fund. The failed subscriber successfully established a trust claim over the subscription money seeing a return of all funds for all failed subscribers, rather than the funds forming part of the pool of assets available to creditors of the fund.
Serving as Chairperson of the Liquidation Committee for Fairfield Sentry for eight years. The liquidation of Fairfield Sentry, the largest exposed feeder fund to the Madoff fraud, has led to numerous key decisions from the Courts in BVI, New York, and the Privy Council that impact fund practice on issues such as clawback of redemption proceeds, claims against fiduciaries, and status of redeemed shareholders.
Acting for a stable of six BVI mutual funds, with Cayman co-funds, in action against a high-profile former director and other fiduciaries. The matter saw the intervention of US authorities to trace and freeze assets, and at BVI level considered a multitude of issues including the validity of shareholder action to reconstitute the board, declaratory relief as to proper control of the shareholder of the funds, and thus the funds.
Acting for the principal of a Cayman Islands fund in opposing a winding up petition brought against the fund by an investor on just and equitable grounds. The petition was dismissed with the Court returning operation of the fund to its principal.
