Abuse Of Process And The Court Of Appeal's Approach To Appeals From Without Notice Decisions In The BVI

• Published date: 08 July 2022
• Subject Matter: Corporate/Commercial Law, Corporate and Company Law, Directors and Officers, Shareholders
• Law Firm: Collas Crill
• Author: David Harby and Dave Marshall

In this article David Harby and Dave Marshall outline the findings of the Eastern Caribbean Supreme Court's (the "Court") Court of Appeal in Greater Sail Limited v Nam Tai Property Inc, Nam Tai Group Ltd & Nam Tai Investment (Shenzhen) Co Ltd ¹ where the Court considered the proper approach to an appeal against the grant of interim mandatory and prohibitory orders, before the inter partes (or on notice) hearing of the application.

The Collas Crill perspective

This case suggests that respondents who wish to challenge injunctions that have been obtained without notice in the BVI should do so by seeking to discharge these, rather than pursuing an appeal before the return date hearing, when the Court will have an opportunity to consider the respondent's evidence and submissions.

In the majority of cases any intervening prejudice to the respondent can be avoided by an early application to the Court, or through the cross-undertaking or payment into Court that an applicant normally has to provide to compensate a respondent in the event that the without notice interim injunction should not have been granted.

The case

The pertinent facts of the case are these.

In October 2021, the Court ordered that a special meeting of the shareholders of the First Respondent, Nam Tai Property Inc (a BVI company) ("Nam Tai") should be held on 30 November 2021. The meeting was duly held and resolutions were passed removing four of the incumbent directors from office and appointing a slate of new directors.

Following the court-ordered shareholders' meeting (the "Meeting"), the new board attempted to take control of the assets and affairs of the Nam Tai group of companies, including the Third Respondent, Nam Tai Investment (Shenzhen) Co Ltd (a company incorporated in the People's Republic of China) and other subsidiaries in China.

However, on 1 December 2021, immediately following the Meeting, the Appellant, Greater Sail Limited (a BVI company) ("Greater Sail) sent letters to the Shenzhen Administration for Market Regulation Bao'an and Guangming Branches, requesting them not to approve any changes regarding Nam Tai's management and legal representative.

As a result, Nam Tai's new officers and managers were unable to take control of its assets and affairs, as well as those of many of its group of companies, including office premises, bank accounts and corporate seals.

On 26 January 2022, the Respondents to the Appeal (who were the claimants in the High Court) (the "Respondents")...