Tsoi Tin Appellant v [1] Tan Haihong [2] Yu Heng International Investments Corporation Respondents [ECSC]
| Jurisdiction | British Virgin Islands |
| Judge | Pereira, CJ,Dame Janice M. Pereira, DBE,Chief Justice |
| Judgment Date | 05 February 2014 |
| Neutral Citation | VG 2014 CA 4,[2014] ECSC J0205-1 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | BVIHCMAP 2013/0023 |
| Date | 05 February 2014 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
(On appeal from the Commercial Division)
Hon. Dame Janice M. Pereira, DBE Chief Justice
BVIHCMAP 2013/0023
James Noble, of Messrs. Harney Westwood & Riegels on behalf of the Appellant Brian Lacy of Maples and Calder on behalf of the First Respondent No appearance by the Second Respondent.
Civil Appeal — Interlocutory appeal — Freezing injunction — Whether person who is not joined or made party to proceedings can have locus standi to appeal — Interpretation of CPR 7.3(5)(b) — Black Swan Jurisdiction — Basis on which an appellate court would disturb the exercise of a trial judge's discretion. Civil Procedure Rules 62.1(2) and 2.4
Mr. T and Mrs. H were married in June 1998. Mrs. H commenced divorce proceedings against Mr. T on 19 th October 2012 whereby she claimed a 70% allocation of the matrimonial assets. Since that time Mrs. H has obtained various injunctions or freezing orders in respect of those assets said to be matrimonial assets which under the law of the People's Republic of China are jointly owned. In March 2008, Mr. T acquired and is the registered holder of 1,800 shares in the second respondent company. The Shares are said to represent approximately 50% of the value of the total matrimonial assets so far as known to date by Mrs. H. On 9 th August 2013, Mrs. H caused a "Stop Notice" to be issued in respect of the Shares and this was served on the Company. On 27 th September 2013, the Company gave notice to Mrs. H of a proposed transfer of the Shares to a Samoan company called Crystal Touch Holdings Ltd (Crystal Touch"). On 7 th October 2013, Mrs. H applied for an injunction to restrain the transfer of the Shares. On 8 th October 2013, the learned trial judge directed that Mr. T be served with the application for a hearing on 10 th October 2013, and at that hearing Mr. T gave evidence that the Shares did not form part of the matrimonial assets, but rather that they belonged to a third party, one Mr. Zhu who he said controlled Crystal Touch. However, no evidence was tendered before the learned trial judge from any person asserting, confirming or denying Mr. Zhu's ownership or entitlement to the Shares, whether directly or indirectly. The learned trial judge granted an injunction against the Company until a further hearing on 5 th November 2013. On 5 th November 2013 the learned trial judge ordered that the injunction against the Company be continued until further order. It is from this order that Mr. T appeals.
Held: dismissing the appeal, with costs to be paid by Tsoi Tin to be assessed unless agreed within 21 days.
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1. Mr. T is not properly an appellant and therefore without more has no standing, to bring this appeal. CPR 62.1(2) defines an "appellant" as " the party who first files a notice of appeal" and CPR 2.4 says that a party " includes both the party to the claim and any legal practitioner on record for that party unless any rule specifies or it is clear from the context that it relates to the client or to the legal practitioner only."
MA Holdings Ltd. v George Wimpey UK Ltd also called George Wimpey UK Ltd v Tewkesbury Borough Council [2008] 1WLR 1649 distinguished.
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2. The contention that a PRC money judgment could not be enforced in any event in BVI having regard to CPR 7.3(5) (b) is not sustainable. This Court has previously ruled that CPR 7.3(5)(b) ought to be accorded a purposive construction and that the words "and registered in the High Court pursuant to Part 72" should be ignored as "mere surplusage" so as to give effect to the intention of the framers of the Rules.
Westburg Anstalt v Profitstar Anstalt BVIHCMAP 2013/0020 followed.
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3. Freezing orders are unlike ordinary interlocutory injunctions. The only purpose of a freezing order is to prevent dissipation of assets available to satisfy a money judgment. They do not depend upon there being a pre-existing cause of action and there is no reason in principle why a freezing injunction should be treated any differently to the circumstances in which a claim is issued which seeks only relief ancillary to a foreign judgment or award such as with anti-suit and Norwich Pharmacal claims.
Mercedes Benz v Leiduck [1996] AC 284 applied and Black Swan Investment I.S.A. v Harvest View Limited and Sablewood Real Estate Limited BVIHCMAP 2013/0020 followed.
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4. It is sufficiently clear on the facts and circumstances of this case as to why the judge was satisfied, in the interest of justice, that the Shares should be preserved and why no fortification was ordered in respect of Mrs. H's cross undertaking. Indeed the order of the learned trial judge does nothing more than maintain the status quo. It must also be remembered that Mr. T disclaims any beneficial interest in the Shares. It cannot be said that the trial judge's decision in the circumstances of the matter as placed before him, exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong. Accordingly, the threshold for warranting an appellate court's interference has not been met.
Dufour v Helenair Coproration Ltd (1996) 52 WIR 188 followed; Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 and G-v-G [1985] 2 All ER 225 applied.
This is said to be an interlocutory appeal brought by Tsoi Tin ('Mr. T") against the decision of the trial judge (Bannister J, QC (Ag.)) of 5 th November 2013 in which he continued a freezing injunction against the second respondent ('the Company"). The relevant part of the order for the purposes of this appeal is in these terms:
"Until further order, the Respondent,[the Company] whether by itself or by its servants, agents, directors, officers, partners, employees, affiliates or attorneys be restrained from directly or indirectly disposing of, or diminishing the value of, or transferring, selling, or otherwise dealing or making any payment by way of dividend, interest or otherwise, or registering any transfer of, any or all of the shares of the Respondent registered in the name of Tsoi Tin (also known as Cai Tian and formally known as Cai Shaowu)."
The applicant for this injunction, being the first respondent herein (hereinafter called "Mrs. H" merely for ease of reference), was required to provide a cross-undertaking in damages not only to the Company but also to Mr. Tin.
It may be immediately stated that Mr. T was not named or joined as a party to the proceedings below, either at the instance of Mrs. H or the court, neither did Mr. T of his own volition seek joinder as a party. However, it is common ground that Mr. T and Mrs. H are husband and wife who are engaged in a matrimonial dispute in the People's Republic of China ("PRC"). The Company took no part whatsoever in the proceedings below and does not appear on this appeal. The learned trial judge did permit Mr. T to be heard.
The background to this matter may be succinctly stated thus:
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(a) Mr. T and Mrs. H were married in the PRC on 1 st June 1998.
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(b) Sometime in March 2008, Mr. T acquired and is the registered holder of 1,800 shares ('the Shares") in the Company.
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(c) Mrs. H and Mr. T are embroiled in divorce proceedings in the PRC brought by Mrs. H on 19 th October 2012. In those proceedings Mrs. H is claiming a 70% allocation of the matrimonial assets and has obtained various injunctions or freezing orders in respect of those assets said to be matrimonial assets. It is not disputed that as a matter of PRC law, assets, including shares, acquired during the course of a marriage are jointly owned.
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(d) The Shares are said to represent approximately 50% of the value of total matrimonial assets so far as known to date by Mrs. H.
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(e) On 9 th August 2013, Mrs. H caused a "Stop Notice" to be issued in respect of the Shares and this was served on the Company.
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(f) On 27 th September 2013, the Company gave notice to Mrs. H of a proposed transfer of the Shares to a Samoan company called Crystal Touch Holdings Ltd (Crystal Touch"). The 14-day notice period under the Stop Notice expired on 11 th October 2013.
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(g) On 7 th October 2013, Mrs. H applied for an injunction to restrain the transfer of the Shares. On 8 th October 2013, the learned trial judge directed that Mr. T be served with the application for a hearing on 10 th October 2013. On 10 th October, an injunction was granted against the Company until further hearing on 5 th November 2013.
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(h) In his evidence and during the hearing, Mr. T asserted that the Shares did not form part of the matrimonial assets, but rather that they belonged to a third party, one Mr. Zhu who he said controlled Crystal Touch. No evidence was tendered before the learned trial judge from Mr. Zhu or any person on behalf of Crystal Touch asserting, confirming or denying Mr. Zhu's ownership or entitlement, whether directly or indirectly to the Shares.
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(i) On 5 th November 2013, after considering the evidence filed on behalf of both Mrs. H and Mr. T, and hearing submissions on their behalf, the learned trial judge ordered that the injunction against the Company be continued until further order. It is from this order that Mr. T has launched this appeal.
Mr. T, attacks the judge's decision on two main limbs namely, (a) the jurisdiction to grant the injunction, and (b) the exercise of the judge's discretion to granting the relief. However, Mrs. H has raised a primary objection to Mr. T bringing this appeal as she says he has no locus standi to do so as he is not a party to the proceedings and therefore cannot be an ' appellant'. It is therefore necessary to first treat with this objection, which can be dispositive of this appeal.
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