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

• Jurisdiction: British Virgin Islands
• Judge: d'Auvergne J
• Judgment Date: 24 November 2004
• Neutral Citation: VG 2004 HC 1
• Court: High Court (British Virgin Islands)
• Docket Number: BVIHCV140/2003
• Date: 24 November 2004

IN THE HIGH COURT OF JUSTICE

BVIHCV140/2003

BETWEEN

IPOC International Growth Fund Limited

Claimant/Respondent

and

(1) LV Finance Group Limited

(2) Transcontinental Mobile Investment Limited

(3) OOO Ct-Mobile

(4) Santel Limited (Applicant)

(5) Avenue Limited (Applicant)

(6) Janow Properties Limited (Applicant)

(7) Barrows Alliance Limited

(8) Cormack Select Ltd

(9) Stegman Universal Ltd

(10) Smart Finance Limited

(11) Carbert International Limited

(12) Carbonell Trading Ltd.

(13) Rampton Enterprises Limited

(14) Alamosa Holdings Limited

(15) Normanton Limited

(16) OOO Alfa-Eco (Applicant)

Defendants/Applicants

Appearances

Mr. Martin Mann, Q.C. with Mr. Michael Pringle for the Claimant/Respondent

Mr. Jeffrey Elkinson with Miss Dawn Smith for First Applicant

Ms. Michelle Matthew holding a watching brief for the Second Applicant

Mr. John Carrington for Third Applicant, 7 ^th, 8 ^th, 9 ^th, 11 ^th, 12 ^th, 13 ^th, 14 ^th 15 ^th Applicants

Mr. Stephen Smith Q.C. with Mr. Jack Husbands and Mr. Robert Levy for the 4 ^th, 5 ^th, 6 ^th and 16 ^th Applicants

d'Auvergne J

1 [1] The above sixteen Applicants filed applications to discharge and/or to vary the orders made by the Court on the 4 ^th of September 2003. These orders, herein after referred to as the 4 ^th of September orders, are as follows:

‘UPON the Claimant's application for the appointment of Joint Receivers of the property identified herein made without notice to the Defendant

AND UPON hearing Counsel for the Claimant Martin Mann Q.C.

AND UPON READING the affidavit of Nicolas Ulmer sworn on 1 September 2003 in support of the application, the second affidavit of Nicolas Ulmer sworn on 2 September 2003, the two affidavits of fitness of Nicholas John Pike sworn on 1 September 2003, the affidavit of fitness of Anthony Lynton sworn on 2 September 2003 and the three several consents to act as joint receivers of Glenn Harrigan, Phillip Rodney Skyes and Mark James Shaw

AND UPON the Claimant by its Counsel Martin Mann Q.C. giving the undertakings set out in Schedule 3 to this Order.

2 APPOINTMENT

• 1. The Court hereby appoints (1) Glenn Harrigan of Road Town, Tortola, British Virgin Islands, (2) Phillip Rodney Skyes and (3) Mark James Shaw both of 1 Snow Hill, London EC1A 2EN as Joint Receivers of all the property and assets identified in Schedule 1 to this Order, together with all profits and income deriving therefrom, until judgment or further order of the Court, and each of the Joint Receivers may act jointly or alone in respect of any act or matter contemplated by this Order.

3 AND IT IS ORDERED THAT:

4 POWERS OF RECEIVERS

• 2. The Joint Receivers shall during the course of their appointment as Receivers have and be entitled to exercise the powers listed in Schedule 2 to this Order, together with all other powers they have by virtue of their appointment.

5 DUTIES OF RECEIVERS

• 3. In addition to the duties of the Joint Receivers arising by virtue of their appointment, the Joint Receivers shall immediately take such steps as are necessary to take control of, and hold and preserve on trust (pending the determination of the true ownership of the same by the court, an arbitrator or otherwise): (a) all the property and assets identified in Schedule 1 to this Order, together with all profits and income deriving therefrom as it arises and (b) all documents, books and papers ordered to be delivered up to them hereunder.

6 SECURITY

• 4. The Joint Receivers shall on or before close of business on Friday 12 September 2003 give security as Receivers to the satisfaction of the Court in the amount of 1.8 million.

• 5. If the Joint Receivers do not give such security by Friday 12 September 2003 or within such further time as the Court may allow, their appointment as Joint Receivers shall immediately cease.

• 6. The Claimant having given the undertaking in paragraph 1 of Schedule 3 to this order, the Joint Receivers have permission to act at once.

7 ACCOUNTS

• 7. The Joint Receivers shall submit their accounts to the Claimant, the Defendants and the Court at 6 (six) monthly intervals.

8 RECEIVERS' COSTS AND EXPENSES

• 8. The Claimant shall be responsible for all of the Joint Receivers' fees, costs and expenses and shall pay the same on demand without any form of counterclaim, deduction or set off.

9 DELIVERY UP

• 9. Each of the Defendants shall immediately deliver up to the Joint Receivers and/or procure the delivery up to them of all books, documents and papers of the Second or Third Defendants that are within its possession or control, which (without limiting the foregoing) shall be deemed to include:

  • (a) all share registers and

  • (b) all share certificates or other documents of title or agreements purporting to transfer the same relating to (i) the issued shares in, or ownership of, the Second or Third Defendants or (ii) the issued shares in the Russian company OAO MegaFon that are currently or were formerly held by or on behalf of the Third Defendant.

10 INJUNCTION AGAINST DISPOSAL OR DEALINGS

• 10. The Defendants through their servants, agents, officers or otherwise however shall not dispose of or deal with any of the property or assets identified in Schedule 1 to this Order, or any of the books, documents, papers or agreements that are required hereunder to be delivered up, save in a manner to which the Joint Receivers have give their prior written approval for the purpose of the Joint Receivers taking possession or control thereof in accordance with this Order.

• 11. The injunction contained in paragraph 10 hereof shall terminate on 30 September 2003 unless continued or a further injunction is made on further consideration thereof.

• 12. This matter shall be re-listed for further consideration on 29 September 2003 at 09h30.

11 SERVICE OUT OF JURISDICTION

• 13. The Claimant is hereby given permission to serve a claim form on the Second, Third, Tenth, Thirteenth, Fourteenth, Fifteenth and Sixteenth Defendants out of the jurisdiction and to serve them at the addresses or otherwise in the countries specified in paragraph 3 of Schedule 3 to this Order.

• 14. The time for filing an Acknowledgement of Service by each of the said Defendants shall be 28 days after service on it of the claim form.

• 15. The time for filing of a defence by each of the said Defendants shall be 42 days after service on it of the statement of claim.

12 OTHER PROCEEDINGS

• 16. The Claimant is hereby given permission, if so advised, to begin or continue proceedings, including arbitration proceedings, against the Defendants in any other jurisdiction, including proceedings to enforce this Order or for relief of a similar nature.

• 17. The Claimant and the Joint Receivers are hereby given permission in any other civil proceedings, whether brought inside or outside the jurisdiction, to use and rely upon any and all (a) evidence filed by a party in these proceedings or (b) documents or other information disclosed by any party in these proceedings whether pursuant to this Order to otherwise.

13 PARTIES OTHER THAN CLAIMANT OR DEFENDANTS

• 18. It is a Contempt of Court for any person notified of this Order knowingly to assist in or permit a breach of it. Any person doing so may be sent to prison, fined or have his assets seized.

• 19. This Order does prevent any bank from exercising any right of set-off it may have in respect of any facility which it have to any Defendant before it was notified of this Order.

• 20. No bank need enquire as to the application or proposed application of any money withdrawn by any Defendant if the withdrawal appears to be permitted by this Order.

• 21. Save as provided in paragraph 22 below the terms of this Order to not affect or concern anyone outside the jurisdiction of this Court.

• 22. The terms of this Order will affect the following persons in a country or state outside the jurisdiction of this Court.

  • (a) the Defendants and their officers and agents appointed by power of attorney

  • (b) any person who

    • (i) is subject to the jurisdiction of this Court

    • (ii) has been given written notice of this Order at his residence or place of business within the jurisdiction of this Court; and

    • (iii) is able to prevent acts or omissions outside the jurisdiction of this Court which constitute or assist in a breach of the terms of this Order and

  • (c) any other person, only to the extent that this Order is declared enforceable by or is enforced by a court in that country or state.

• 23. Nothing in this Order shall, in respect of assets located outside the jurisdiction of this Court, prevent any third party from complying with:

  • (a) what it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or state in which those assets are situated or under the proper law of any contract between itself and any Defendant; and

  • (b) any orders of the courts of that country or state, provided that reasonable notice of any application for such an order is given to the Claimant's lawyers.

14 PERMISSION TO APPLY

• 24. The Defendants have permission to apply to vary or discharge this Order on two business days prior written notice given to the Claimant and the Joint Receivers.

15 COSTS

• 25. The costs of and associated with this application shall be reserved.’

FACTUAL BACKGROUND

16 [2] On the 10 ^th April 2001 and 14 ^th December 2001, respectively, LV Finance Group Limited the First Applicant, concluded two option agreements with IPOC, the Respondent which the Applicants allege carry on business as an open ended mutual fund. Those agreements purport to give IPOC the option to acquire all of the shares in TMI, the second named Applicant, a Bahamian Company which was then a subsidiary of LV Finance Group, the first named Applicant which...