Edy Gay Addari Appellant v Enzo Addari Respondent

• Jurisdiction: British Virgin Islands
• Judge: GORDON, J.A.
• Judgment Date: 27 June 2005
• Neutral Citation: VG 2005 CA 7
• Judgment citation (vLex): [2005] ECSC J0627-8
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: CIVIL APPEAL NO.2 OF 2005
• Date: 27 June 2005

[2005] ECSC J0627-8

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]

The Hon. Mr. Michael Gordon, QC Justice of Appeal

The Hon. Mr. Denys Barrow, SC Justice of Appeal [Ag.]

CIVIL APPEAL NO.2 OF 2005

Between:

Edy Gay Addari

Appellant

and

Enzo Addari

Respondent

Appearances:

Mr. John Carrington for the Appellant

Mr. Clyde Williams with Mr. Rickie Davis for the Respondent

GORDON, J.A.

1 This is an appeal from an order of the trial Judge to continue a freezing order obtained ex parte after an inter partes hearing. The ex parte order was granted in December 2003 in favour of the Respondent and restrained the Appellant and the HSBC Guyerzeller Bank (BVI) Limited ("the HSBC Bank BVI") from disposing or dealing with any property that the HSBC Bank BVI or its parent bank held on account for or on behalf of the Appellant. There were certain ancillary orders, but this was the principal one. In the December order leave was also granted to serve the Claim Form, Statement of Claim, the amended Notice of Application and related documents on the Appellant out of the jurisdiction in France. 1 At the inter partes hearing the trial Judge confirmed that order.

2 The Appellant is dissatisfied with the judgment of the learned trial Judge and has appealed to this Court on a number of grounds. The first ground to be disposed of is that the learned Judge erred in law in finding that in the light of the evidence the Appellant could be considered a constructive trustee and thereby in the exercise of his discretion could grant leave to serve the Claim Form on the Appellant out of the jurisdiction. This ground was not argued before us nor was any argument advanced in the written submissions on this point.

3 The parties to this appeal were married in August 1967. There was one child of the marriage, Manuel who was born in 1968. The parties obtained a legal separation from an Italian court in 1977 and ancillary thereto was a separation agreement which provided, among other things, for the transfer of the matrimonial home to the Appellant and that the parties would each be responsible for their own maintenance. Notwithstanding the separation order, the learned trial Judge, based on the evidence before him, found that they continued a personal and business relationship until 2002.

4 The Respondent husband gave affidavit evidence of the fact that he was a successful businessman who made substantial monies both from his various entrepreneurial ventures and from investments in various markets such as the stock market. A crucial allegation of the Respondent was that based on advice he received from his lawyers and tax planners ownership of his real and personal properties were registered in the names of third parties to minimise his exposure to tax. He stated that he registered some of his assets in the names of his mother-in-law, his wife, his son, his attorneys and others including holding and off-shore companies, and in that practice is the genesis of these proceedings.

5 According to the Respondent, among his assets are Russian bonds being held in an account in the HSBC Bank BVI amounting to some US$40,000,000.00 which account is in the name of the Appellant wife. In this judgment I shall refer to the bonds variously as bonds or monies. The Respondent claims that he is the beneficial owner of that money and that the Appellant is trying to defraud or otherwise deprive him of it. It is that account specifically that the Respondent sought to have, and the Court ordered, frozen.

6 The Appellant's case, on the other hand is quite simply that she acquired the bonds in 1998 from her own resources and that the Respondent has absolutely no interest, equitable or legal, in them.

7 The first ground of appeal put forward by the Appellant was that the learned trial Judge failed to give appropriate weight to facts that the Respondent in his application for the interlocutory relief failed to disclose or misrepresented. This argument was canvassed before the trial Judge. In Brink's Mat Ltd v Elcombe et al 2 Ralph Gibson LJ set out the principles by which a court should be guided. This was a decision of the Court of Appeal in England and I gratefully adopt the learning.

"In considering whether there has been relevant non-disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following. (1) The duty of the applicant is to make "a full and fair disclosure of all the material facts:" see Rex v Kensington Income Tax Commissioners, Ex parte Princess Edmond de Polignac [1917] 1 K.B. 486, 514, per Scrutton L.J.

(2) The material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers: see Rex v Kensington Income Tax Commissioners, per Lord Cozens-Hardy M.R., at p. 504, citing Dalglish v Jarvie (1850) 2 Mac. & G 231, 238 and Browne-Wilkinson J. in Thermax Ltd. v Schott Industrial Glass Ltd. [1981] F.S.R. 289, 295.

(3) The applicant must make proper inquiries before making the application: see Bank Mellat v Nikpour [1985] F.S.R. 87. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries.

(4) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application; and (b) the order for which application is made and the probable effect of the order on the defendant: see, for example, the examination by Scott J. of the possible effect of an Anton Pillar order in Columbia Picture Industries Inc. v Robinson,. [1987] Ch. 38; and (c) the degree of legitimate urgency and the time available for the making of inquiries: see per Slade L.J. in Bank Mellat v. Nikpour [1985] F.S.R. 87, 92–93.

(5) If material non-disclosure is established the court will be "astute to ensure that a plaintiff who obtains [an ex parte injunction], without full disclosure…is deprived of any advantage he may have derived by that breach of duty:" see per Donaldson L.J. in Bank Mellat v. Nikpour, at p. 91, citing Warrington L.J. in the Kensington Income Tax Commissioners' case [1917] 1 K.B. 486, 509.

(6) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented.

(7) Finally, it "is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded:" per Lord Denning M.R. Bank Mellat v. Nikpour [1985] F.S.R. 87, 90. The Court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms.

"when the whole of the facts, including that of the original non-disclosure, are before [the court, it] may well grant…a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed:" per Glidewell L.J. in Lloyds Bownmaker Ltd. v. Britannia Arrow Holdings Plc., ante…"

8 In exercising his discretion the trial Judge directed himself faithfully along the above quoted guidelines. I, therefore, can find no reason to say that the learned trial judge misdirected himself on the law.

9 The trial Judge analysed the evidence that had been provided by the Respondent and the facts that the Appellant alleged were either concealed or misrepresented. Though the list of such facts referred to in his judgment was not exhaustive of those facts raised before us, I have no reason to doubt that all of the same facts were in fact raised before him. He concluded as follows:

"It is important to keep in mind that, essentially, the pivotal issue that arises on the claim in this case is whether Mrs. Addari holds the assets in the frozen account in trust for Mr. Addari who is the beneficial owner. With this in mind, I do not think that the non-disclosure and alleged misrepresentations that Mr. Carrington raised are material. Some of these matters are peripheral to the claim. Others are contestable issues that are to be canvassed at the trial of the claim. They cannot be resolved on Affidavit evidence untested by cross-examination. They cannot be decided on legal opinions that are accepted without question simply because they are uncontroverted."

10 In DuFour v Helenair Corporation Ltd 3 Sir Vincent Floissac C.J. articulated the basis on which an appellate court would interfere with the exercise of a judicial discretion by a trial judge. He said:

We are thus here concerned with an appeal against a judgment given by a trial judge in the exercise of a judicial discretion. Such an appeal will not be allowed unless the appellate court is satisfied (1) that in exercising his or her judicial discretion, the judge erred in principle either by failing to take into account or giving too little or too much weight to relevant factors and considerations, or by taking into account or being influenced by irrelevant factors and considerations;...