IPOC International Growth Fund Ltd v LV Finance Group Ltd and Others

• Jurisdiction: British Virgin Islands
• Judge: ALLEYNE J.A.,Brian G.K. Alleyne,Justice of Appeal
• Judgment Date: 12 January 2004
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: CIVIL APPEAL NO. 21 OF 2003
• Date: 12 January 2004

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian G.K. Alleyne Justice of Appeal

CIVIL APPEAL NO. 21 OF 2003

BETWEEN

IPOC International Growth Fund Limited

Applicant

and

[1] LV Finance Group Ltd.

[2] Trancontinental Mobile Investment Limited

[3] OOO CT-Mobile

[4] Santel Limited

[5] Avenue Limited

[6] Janow Properties Limited

[7] Barrows Alliance Limited

[8] Cormack Selct Ltd

[9] Stegman Universal Ltd

[10] Smart Finance Limited

[11] Carbert International Ltd

[12] Rampton Enterprises Limited

[13] Alamosa Holings Limited

[14] Normanton Limited

[15] 000 Alfa-Eco

Respondents

ALLEYNE J.A.

1 This is an application for an extension of time (should an extension be necessary) within which to apply for leave to appeal, and for leave toapplicant also seeks an order for an expedited hearing of the appeal, leave to appeal a costs order made on 20^th November 2003 following an unsuccessful application to the High Court for leave to appeal the order of 4^th November, and costs of this application.

2 The application arises out of an amended application by the applicant filed on 23^rd October 2003 seeking, against the Receivers (not named in the title of the action), an order directing them forthwith to transfer to the applicant, without prejudice to its claim for specific performance of an option agreement, the sum of US$16 million approximately, together with all interest earned thereon, held by them. The applicant also sought the following further orders;

(3) An order directing the receivers to take all necessary and lawful steps to have themselves entered as stakeholders in the charter of CT Mobile in place of the Fourth to Sixth defendants.

(4) An order directing the Receivers to exercise the legal rights of stakeholders in CT Mobile, including certain specified rights listed in a schedule to the application notice, to the extent that such is necessary or desirable for certain stated purposes.

(4A) Further or alternative directions as to the Receivers' future conduct of the receivership as the court shall think fit.

(5) Against the fourth to sixth defendants, an order requiring each of them forthwith to take all such steps and execute all such deeds or documents or powers of attorney as the Receivers may reasonably request for certain specified purposes.

(6) An order restraining the said defendants during the period of the Receivers' appointment from doing certain specified acts in relation to CT Mobile.

(7) An order empowering the receivers, in the event of breach of the order sought in paragraph (5), to take all such steps and execute all such deeds, documents and powers of attorney on behalf of the defaulting defendants as was envisaged by the receivers' request.

3 The matter came on before the High Court on 4^th November, at which time all named parties were represented by counsel. There was no appearance of or for the Receivers. Mr. Mann Q.C. for the applicants stated at the outset ‘My Lady, we are before you for directions on injunctions.’ He went on to say that the Receivers had asked them (the applicants) for clarification ‘and we apply (for directions) on their behalf.’ Mr. Mann Q.C. continued; ‘We don't anticipate that Your Ladyship will be asked to make any directions today save only this direction which is to allow the Receivers to release $16 million which they are holding at the moment pending the outcome of the dispute.’ Learned Queens Counsel then referred to a direction which he said was being noted on behalf of the Alfa Purchasers, Mr. Levy and Mr. Husbands, counsel for the fourth to sixth defendants. These defendants are referred to as the Alfa Purchasers. He continued; ‘I don't think that Mr. Elkinson and Mr. Carrington (counsel for the first, and the seventh to fifteenth defendants respectively) are totally in agreement with it, but I suspect there won't be much between us.’ I take this to mean, and I do not think there is any disagreement on this, that Mr. Mann was generally in agreement with that proposal which, as he explained, anticipated that the judge would deliver judgment on the hearing which concluded on the 1^st October, and in the meantime, if the court's list could accommodate it, the application for the several orders would be heard on 26^th November.

4 The learned judge immediately informed the parties that the court's list could not accommodate that proposal. Mr. Mann appears to have accepted that situation and proceeded to explain to the court the ‘great urgency’ of the receivership directions. However, he conceded that he could not then, on that day, argue that urgency, and said in respect of the receivership directions ‘We have to take it on the chin,’ and continued ‘but we have notified the party that we would like to have a $16 million in which nobody but us has an interest back. I should be able to dispose of it rather quickly. The Receivers take a neutral position about that and will abide by the order of the court.’ Learned Queens Counsel then briefly put forward his case for the return of that sum, and said; ‘As for directions, My Lady, Iwon't deal with that any further at the moment, because I no doubt will listen to what the other counsel have to say about that. All I would urge is that it is inordinately urgent for us that we have these directions. The Receivers are not able to do anything effectively.’ Counsel explained briefly the nature of his concerns and the basis of his sense of the ‘extreme urgency and importance’ of the receivership directions.

5 A further proposal was then put forward (the Carrington directions). Learned...