North Sound Yacht Vacations Ltd v 1. Terry Turl; 2. Susan Turl
| Jurisdiction | British Virgin Islands |
| Judge | Matthew J. Ag |
| Judgment Date | 25 March 2002 |
| Neutral Citation | VG 2002 HC 10 |
| Docket Number | SUIT NO. 88 of 2000 |
| Court | High Court (British Virgin Islands) |
| Date | 25 March 2002 |
IN THE HIGH COURT OF JUSTICE
SUIT NO. 88 of 2000
(By Counterclaim)
Mr. J. Carrington for North Sound Vacations Ltd. and Brian Rose
Mr. S. Bennett for Terry Turl and Susan Turl
On August 4, 2000 North Sound Vacations Ltd issued a Writ of Summons against the Turls claiming inter alia damages for breach of contract of services with the Company and conversion. The Defendants entered appearance on August 11, 2000.
The Statement of Claim in the action was filed and served on September 26, 2000. On December 18, 2000, the Defence and Counterclaim was filed and served. On February 27, 2001, the Reply and Defence to the Counterclaim was filed and served. On April 3, 2001 Master Hugh Rawlins made an Order on Summons for Directions.
A List of Documents was filed by the Defendants on July 4, 2001. A Case Summary was filed by the Company on the same day; another order was made by Master Rawlins on July 9, 2001. It would appear that the pleadings in this action are closed.
While the BVI proceedings were going on, the Company filed a similar action against the Turls who are citizens of Canada, and who by then were living in Canada, at least one of them, Susan Turl. The Canadian action was filed on September 27, 2000.
On October 12, 2000, a motion for interlocutory relief in Canada was filed and it is alleged that an Anton Pillar Order, a Mareva Order and interim injunctive relief were made.
In this connection, there is an affidavit by a Canadian Barrister and Solicitor, Ronald G. Chapman, filed on October 31, 2001 to the effect that the procedural law in Ontario is not dissimilar to that of the BVI and that the principle of law stated in the SISKINA 1977 3 AER 803 has been specifically followed in Ontario.
In his submissions, Learned Counsel for the Company stated that the evidence is that substantive relief has not been pursued in Canada and the Ontario proceedings are justifiable on the basis that the Company was seeking equitable relief in the form of the Mareva and Anton Pillar Orders against the Defendants who were then in Canada, which relief were not obtainable in the B.V.I. action.
It is the maintenance of these two actions in different jurisdictions by the Company which gives rise to the present proceedings. On July 4, 2001 and by a similar summons filed on January 22, 2001 the Turls ask that the BVI action be dismissed on the ground that it is oppressive and an abuse of process as the Company has filed an identical action in Canada.
In support of that application are two lengthy affidavits filed by Susan Turl on July 4, 2001 and November 15, 2001 to the effect that the issues should be tried in Canada.
Brian Rose, President of the Company, filed two affidavits in opposition on November 1 and 6 2001. Rose stated that the main proceedings in this matter have always been the BVI and the action in Canada concerned the hand over of corporate documents belonging to the Company which were in possession of the Defendants.
I have noted that in her affidavits filed on July 4, 2001, Susan Turl stated that regarding any documents or property which may have been in the possession of herself and her husband which forms part of the Company's claim, those have been handed over to the Company's Solicitors in Canada as a part of the Canadian proceedings.
Learned Counsel for both sides gave very full submissions with authorities which obviously cannot all be incorporated in the judgment. What I propose to do is to state so much of their submissions which will make the rest of the judgment readable.
Learned Counsel for the Turls, it would appear, relied on the law as stated in SPILIADA MARITIME CORPORATION V CANSULEX 1987 1 AC 460 and spelt out at length the seven propositions which may be derived from the speech of Lord Goff of Chievely in that case.
Counsel submitted that the instant action arises out of the claim by a BVI registered company that persons employed to manage its local operations have breached their contracts of employment by, inter alia, misappropriation of money rightly belonging to it. He said the incidents giving rise to the claim could be seen to have occurred in the BVI and in Canada.
Counsel submitted that it is clear the principal witnesses on all important issues in the litigation reside in Canada, they are, Brian Rose and the Turls. Counsel submitted that the assets of the Defendants are located in Canada and any judgment in the BVI would inevitably have to be enforced through the Canadian court system.
Counsel referred to an agreement between Rose and Terry Turl as regards the former selling 90 percent of the shares of the Company to the latter and the subsequent breach by Rose. He said that issue would be determined by Canadian law.
Counsel relied also on the following authorities:
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(3) THE ABIN DAVER 1984 1 AC 398
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(4) AUSTRALIAN COMMERCIAL RESEARCH DEVELOPMENT LTD V ANZ McCAUGHN MERCHANT BANK LTD 1989 3 AER 65at page 69
in answer to the submissions and authorities by learned Counsel on the other side.
Learned Counsel for the Company submitted that it is a well established principle of law that the Court may stay proceedings before it where there is a lis pendens before a foreign jurisdiction on the same cause of action. However, this discretion is exercised only where the Defendant can satisfy two criteria;
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(i) that the local court is not the appropriate forum to determine the dispute between the parties; and
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(ii) that the action in the local court is vexatious or oppressive.
Learned Counsel for the Turls said that statement of the law was wrong in modern times.
Counsel submitted that the burden is on the Defendants to prove that the Court in the BVI is not an appropriate forum to try the issues between the Parties and that Ontario is the more appropriate forum. I believe learned Counsel for the Turls agreed with that.
Counsel submitted that in order to make the determination whether the BVI is the forum with which the action has its most real and substantial connection, the Court must examine the connecting factors, if any, between this jurisdiction and the cause of action.
Counsel submitted that an interlocutory motion was made for interim relief in the Canadian proceedings in October 2000 and that no further proceedings have taken place in Canada, and in the circumstances, the Claimant in bringing the two actions has not acted vexatiously or oppressively.
He submitted that in any event, even if the Court is of the view that the commencement of proceedings in Ontario and the BVI is oppressive or vexatious, the proper course is to call on the Claimant to elect which proceedings he will pursue.
Counsel relied on the following authorities in addition to some of those already mentioned by learned Counsel on the other side. They are:
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(2) PERUVIAN GUANO CO. V BOCKWOLDT (1881–1885) AER 715
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(3) IONIAN BANK V COUVREUR 1969 2 AER 651
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(4) SNI AEROSPATIALE V LEE KUI JAK 1987 2 AER 510
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(5) MACKINNON V DONALDSON 1986 1 Ch. 482
Both sides in their submissions sought to show the connecting factors to the two jurisdictions under review so it is imperative that I pay heed to them.
Learned Counsel for the Turls submitted that there are 3000 documents in the Company's List of Documents alone and several more in the Defendant's list and all of the documents are presently in Canada. Learned Counsel for the Company replies that all the documents in the BVI case have already been lodged. Earlier, I adverted to the Defendants' List of Documents being filed.
Counsel submitted that it was obvious, I am not sure to whom, that the major part of the case will involve the testimony of persons resident in Canada and the perusal of thousands of documents now located there.
Counsel submitted that a further material factor relates to the proper law to be applied to the issues in this case. He said that most of the matters involve simple issues of contract law in which there is unlikely to be much difference between the law of Canada and that of the BVI as they are both derived from British common law.
Counsel submitted that the issues of defamation arising on the counterclaim of the Turls have little connection to the BVI as the alleged libels were made in email messages sent from Canada to various boat owners and other persons residing mostly outside of the BVI.
Counsel submitted that another material factor would be the place of work and residence of the Parties to the litigation. He said the Defendants reside and work in Canada, and the Company although incorporated in the BVI is controlled from and has its directing mind in Canada. Brian Rose, he said, the directing mind of the Company, is also resident in Canada.
Counsel submitted that it bears reiteration that the major issues to be decided by the Court turns on the terms of the agreements allegedly made between Canadians in Canada concerning the future arrangements for the management and ownership of a BVI company in respect of which both claim to be shareholders.
Learned Counsel for the Company listed the connecting factors in his skeleton arguments as follows:
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(i) the Claimant is incorporated and does business in the BVI;
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(ii) the contract of employment between the Company and the Turls is governed by BVI law as they performed their duties entirely within the BVI;
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(iii) the law by which the tortious...
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