Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 44 of 2017

Sebastian Holdings Inc v. Sarek Holdings Ltd. and Others (CL 44 of 2017) [2018] TCASC 5 (18 January 2018);

Law report citations
Media neutral citation
[2018] TCASC 5
Coram
Ramsay-Hale, CJ

Action No. CL-44/2017

IN THE SUPREME COURT OF

THE TURKS AND CAICOS ISLANDS

BETWEEN:

SEBASTIAN HOLDINGS INC.

(acting by Shane Crooks and Malcolm Cohen as joint receivers)

Plaintiff

- and -

(1)     SAREK HOLDINGS LTD.

(2)     ALEXANDER VIK

(3)     PER JOHANSSON

(4)     OTTO INC.

(5)     REITEN & CO CAPITAL PARTNERS VI, GP LIMITED

(6)     REITEN & CO CAPITAL PARTNERS VII, GP LIMITED

Defendants

BEFORE THE CHIEF JUSTICE, THE HON. MARGARET RAMSAY-HALE

Mr. Stephen Wilson QC and Mr. Tim Penny QC and with them Ms. Kerchelle Bain for the Plaintiff by its joint receivers

Mr. Duncan Matthews QC and with him Mr. Tony Beswetherick and Ms. Deborah John-Woodruffe for the Second Defendant

Mr. Peter McKnight for the First and Third Defendants

Heard on the 8th and 9th November 2017

A draft of this judgment was circulated on Friday 5 January, 2018

JUDGMENT

1.             This is the judgment on the application of the First, Second and Third Defendants, Sarek Holdings Ltd. ("Sarek") Alexander Vik ("Vik") and Per Johansson ("Johansson"), to set aside the Order made by this Court granting the Plaintiff, Sebastian Holdings Inc. ("SHI") leave to serve a Writ of Summons outside of the jurisdiction pursuant to Order 11, r. 1 and to set aside service of the Writ on the Defendants.

2.             The Defendants contend, inter alia, that the Writ action, which was commenced in the Turks and Caicos Islands by the joint receivers ("the Receivers") appointed by order of the English High Court1 by way of equitable execution of a judgment debt, was ultra vires the Receivers' powers under the Receivership Order as the Receivers had not sought or received recognition from the local Court before commencing proceedings; that the court could not, in any event, recognise the

1 Order of Popplewell J on 17 February 2017 ("the Receivership Order")

Receivership Order as it did not satisfy the common law criteria for recognition of a foreign judgment; and further, that the issuing of the proceedings was an improper attempt to enforce a foreign judgment.

3.             There is no issue between the parties that the English High Court may appoint a receiver by way of equitable execution over the foreign assets of a company. The power to do so is found in section 37 of the Senior Courts Act which provides that,

"The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court just and convenient to do so.

(2) Any such order may be made either unconditionally or on such terms and conditions as the court thinks just.”

4.             There is no issue between the parties that, as a general principle, if there is "a sufficient connection between the company in respect of which the receiver is appointed ('the defendant') and the jurisdiction in which the foreign receiver was appointed," the foreign court's order is capable of recognition: see Lightman and Moss on the Law of Administrators and Receivers of Companies, 6th ed. at para 30-033 citing Schemmer v Property Resources Ltd. [1975] Ch 273.

5.             On the facts of this case, there is no issue that between SHI and the court appointing the Receivers there was a sufficient connection.

Requirement for Final and Conclusive Judgment

6.             The challenge to the grant of leave on the recognition ground is that the appointment of the Receivers was made ex parte and as such it was not a final and conclusive judgment of the Court; so that the Order appointing the Receivers did not satisfy the common law criteria for recognition of a foreign judgment.

7.             Mr. Matthews QC submits on behalf of Mr. Vik that, whilst the circumstances in which a receiver appointed by a foreign court may secure recognition at common law of his appointment and powers have not been authoritatively settled, the English Court will exercise its powers in support of a receiver appointed by a foreign court on "very strictly limited principles of international law", per Dillon LJ in Derby & Co. Ltd. v Weldon (No.6) [1990] 1 WLR 1139 (CA) at 1150.

8.             Learned Queen's Counsel contends that the paramount principle of international law is that,

"[N]o foreign judgment will be recognised or enforced in England at common law unless it is 'final and conclusive' [and]... a foreign judgment which is liable to be abrogated or varied by the court which pronounced it is not a final judgment”: see Dicey & Morris on Conflicts of Laws, 15th ed at para 14-023.

9.             He relies in support of this submission on the decision of the House of Lords in The Sennar (No.2) [1985] 1 WLR 490, where Lord Diplock, giving the judgment of the court, stated that a foreign judgment will only be recognized where it,

"cannot be varied, re-opened or set aside by the court that delivered it or any other court of co-ordinate jurisdiction although it may be subject to appeal to a court of higher jurisdiction."

10.          The upshot is that only a judgment made on the merits, in that both parties had an opportunity to raise all substantive arguments they wished to raise, is capable of recognition; as was observed by the Court in Nouvion v Freeman (1889) 15 App Cas 1 (HL) on which Mr. Matthews also relies, which stated at page 15 of the judgment,

"There is an essential difference, therefore, between the case where a court of competent jurisdiction has entertained all the controversies between the parties which they could and chose not to raise, and come to a conclusion, which is presumed to be accurate, and this case where there is no ground for saying that all possible controversies between the parties have been decided."

11.          Mr. Matthews submits that an ex parte order such as the one made by the English High Court appointing the Receivers of SHI, is the paradigm example of an order which is neither final nor conclusive nor a decision on the merits as it is, by its very nature, liable to be set aside or varied.

12.          Counsel also commended the decision of the Federal Court of Australia in LFDB v SM [2015] FCA 725 where the court relied at para 100 on the following extract from the judgment in WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721 at 727 that,

"ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, whether or not it assists his application, this is no basis of making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side and, in so doing he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order."

13.          In that case, the court refused to recognise a foreign freezing injunction that had been obtained ex parte under a statutory scheme for registration of foreign judgments which provided that only judgments which were final and conclusive were registrable.

14.          Finally, in seeking to persuade me that a receivership order made ex parte is precluded from recognition, Mr. Matthews also relies on the case of Larkins v National Union of Mineworkers [1985] IR 671, where, he submits, the Court refused to recognize receivers appointed by the English Court on the ground that the receivership order was not "final and conclusive."

15.          In response, Mr. Penny QC on behalf of the Receivers submits that the submissions on behalf of Mr. Vik seek in error to conflate the principles relevant to the enforcement of judgments with those which are applicable to the recognition of foreign receivers. He submits that the only requirement for recognition of the Receivers' appointment by the English Court is that the foreign court be jurisdictionally competent to make the appointment in that there was a sufficient connection between the defendant and the jurisdiction in which the receiver was appointed. He submits that, absent any applicable general principles of conflict of laws precluding recognition, comity requires that the appointment of the Receivers be recognised.

16.          Those principles preclude recognition of a receivership order made, inter alia, to assist in the execution of an award which is penal in nature: see Huntington v Attrill [1893] AC 150 (PC), to enforce a revenue claim of a foreign state: see Government of India v Taylor [1955] AC 491; or to enforce an award made in favour of a public authority.2

17.          Mr. Penny submits that nothing in the Schemmer case, which sets out the jurisdiction of the Court to recognise the order of a foreign court, nor in any of the other cases which subsequently applied the Schemmer test for recognition, makes any reference to any requirement that the order appointing the Receiver be a final order.

18.          He also relies on the Cayman Islands case of Kilderkin Investments v Player [1984] CILR 63 (CICA) which concerned the recognition of an interim receiver appointed ex parte by the Supreme Court of Ontario, Canada in support of the submission that the only relevant criterion for recognition is that there be a sufficient connection between the Court appointing the receiver and the defendant.

19.          Kilderkin was a decision of the Cayman Islands Court of Appeal which allowed the appeal against the order of the Chief Justice discharging an earlier order of the Cayman Islands Grand Court recognising the foreign receiver. As an aside I note that that the appeal was argued on behalf of the appellant by Jonathan Sumption, now Lord Sumption. In the course of his judgment, Carey JA observed at p 103 that,

"....the Grand Court, as does the High Court in England, has an inherent power to recognise foreign-appointed receivers and managers over assets within the jurisdiction based on well-recognised conflict of law principles. Illustrative of this exercise of this jurisdiction is Schemmer v Property Resources Ltd. where one of the points raised before Goulding J was that the plaintiff, a foreign appointed receiver had no locus standi....The learned Judge in a considered judgment held, rightly as I think, that before the English courts would recognise the title of a foreign receiver ...the court had to "be satisfied of a sufficient connection between the defendant and the jurisdiction in which the foreign receiver was appointed..."..."

20.          No requirement that the appointment of the receiver be a final order of the court was found or contended for in the Kilderkin case.

21.          With respect to the suggestion that the court in Larkins is authority for the proposition that recognition requires that the order appointing the receiver is final and conclusive, Mr. Penny observes that, in the course of argument, the learned Judge was referred to the cases of Perry v Zissis [1977] 1 Lloyd's Rep 607 and Macaulay v Guaranty Trust Company of New York (1927) 44 TLR 99 neither of which sets out the principles articulated in Schemmer for the recognition of a receiver. He submits that, as neither Schemmer nor Kilderkin was cited to the Court, the decision ought to be regarded as being made per incuriam.

2 Also see discussion in Dicey and Morris generally in Chap 5

Discussion

22.          I agree with Mr. Penny that the Larkins case is not authority for the proposition that a court must be satisfied, before recognising a receiver, that the order appointing him was final and conclusive.

23.          Although Barrington J, in addressing his mind to the receiver's claim, observed that a foreign judgment must be "final and conclusive” to be enforceable, he did not decide the case on that ground. Rather, in a case where the receiver's right to a fund, which belonged to the union opposing him, had been obtained under an interlocutory order, the court appointing him having determined it was necessary in order to preserve the fund until the conclusion of a trial, Barrington J decided to hold the line. Bemoaning the lack of authority on point, Barrington J determined that the important thing was the preservation of the fund which the appointment of the receiver was intended to secure. He made no order, being satisfied that the fund which the appointment of the receiver was intended to secure would be equally safe if left in the bank under the terms of the injunction then in place.

24.          In addition, as Mr. Penny points out, Lightman and Moss do not treat Larkins as authority for the proposition that an order appointing a receiver must be ‘final and conclusive' if it is to be recognised, but note merely that the court made no order as the appointment of the receiver was interlocutory (para 30-039).

25.          None of the cases that have followed Schemmer have sought to add a gloss that the order must be final and conclusive. The decision of the Cayman Islands Court of Appeal in Kilderkin which held that where competence is established, comity requires that the receiver is recognised, is directly on point and has been cited in several leading cases, and in Lightman and Moss,3 as authority for that proposition.

26.          While the observations of the Australian court on the nature of ex parte orders are undoubtedly correct, the decision itself provides no assistance as the court was there concerned, not with the recognition of a foreign receiver, but with the registration of a freezing order in a statutory regime which required that, to be registered, all foreign judgments had to be final and conclusive.

27.          The weight of authority makes it clear that recognition is a matter of comity and that the only pre-condition to recognition, which is not otherwise precluded by general principles of private international law, is that there is a sufficient connection between the jurisdiction in which the foreign receiver is appointed and the defendant.

28.          I would also note that, whether granted ex parte or after an inter partes hearing, the essence of an order appointing a receiver post-judgment to aid in the execution of a judgment is that it is not a final order. The appointment does not determine any matter in dispute or give rise to a cause of action estoppel. The Court may on application or on its own motion vary or set aside the order and once the judgment is satisfied, the order will cease to have effect. Taken to their logical conclusion, the submissions on behalf of the Defendants would suggest that a receiver appointed by a foreign court could never be recognised, which is plainly unsustainable.

3 Para 30-032

29.          As the defendant here, SHI had submitted to the jurisdiction of the court making the order appointing the Receivers, comity demands, in the absence of any disqualifying features of the appointment, that they be recognised. This ground of objection is not made out.

Improper Method of Enforcement

30.          Mr. Matthews also submits that there is a further impediment to the pursuit of the claim by the Receivers as the Judgment Creditor is seeking, via the vehicle of the receivership, to enforce a foreign judgment in the TCI by direct execution, without having first brought an action upon the judgment.

31.          In support of this submission, he makes the startling assertion that Schemmer is only authority for the recognition of receivers who are appointed as a protective measure to preserve assets and not for receivers who are appointed post-judgment for the purpose of enforcing the judgment.

32.          Learned Queen's Counsel also relies on Perry v Zissis (supra) which he contends is authority for the proposition that a foreign judgment creditor cannot obtain the appointment of a receiver in England without first bringing a claim to enforce the foreign judgment.

33.          He relies on a passage of the judgment where Roskill LJ, giving the judgment of the Court, said that were it not so,

"... a party who had obtained a foreign award...could proceed to execution in this country under these rules without having converted that award into an English judgment. I venture to think that one has only to state that proposition for its impossibility to be manifest." p.615

34.          In response, Mr. Penny points out that Perry is concerned with the enforcement of judgments. In that case, the court held that the US plaintiffs were not entitled to come to England and seek to enforce their California judgments directly in the English courts, but would have to issue a common law action on the foreign judgment in the usual way, which is uncontroversial. The fact overlooked by Mr. Matthews, however, is that the court in Perry found that the California appointed receiver had a direct claim against the party in England who was holding monies to which the receiver was beneficially entitled by virtue of the order made by the California court. There was no appeal against that finding which supports the Receivers' position in this case.

35.          In the Bahamian case of Chamberlain v. Miss Boots (The) [1992] BHS J No. 84 on which Mr. Penny also relies, the learned Judge disapproved of the suggestion that Perry was authority for the proposition that a foreign equitable receiver would not be recognised by the Bahamian court.

36.          Mr. Penny also says that it is notable that the only proposition for which Perry is cited as authority by Dicey and Morris is that the circumstances in which the Court will recognise the powers of a receiver appointed by a foreign court will include where the foreign court had jurisdiction over the defendant whose property is made subject to the receivership.5

4At para 22

5See para 30-131

37.          Mr. Penny submits that the true nature of a receivership by way of equitable jurisdiction is as elucidated by the Court of Appeal in Masri v Consolidated Contractors International UK Ltd (No2) [2008] EWCA Civ 303. Mr Masri obtained an order appointing a receiver in relation to one of the judgment debtor's revenues from an oil concession in Yemen. The judgment debtor appealed against the order.

38.          Delivering the judgment for the Court dismissing the judgment debtor's appeal, Collins LJ stated,

"[52] The starting point is the effect of the receivership order. Receivership by way of equitable execution is summarized in Snells' Equity (31st edn, 2005) p 437 (para 17-25) as follows:

'A judgment creditor normally obtains satisfaction of his judgment by execution at common law, using the writ of fieri facias, attachment of debts and, formerly, in the case of land, the writ of elegit. There were cases, however, where the creditor could not levy execution at law owing to the nature of the property, the principal case being where the property was merely equitable, such as an interest under a trust or an equity of redemption. Another example was a covenant of indemnity or other chose in action of which the debtor has the benefit, but which could never be reached by attachment. In order to meet this difficulty, the Court of Chancery evolved a process of execution by way of appointing a receiver of the equitable interest, and if necessary supplement this by an injunction restraining the judgment debtor from disposing of his interest in the property. This process was not 'execution' in the ordinary sense of the word, but a form of equitable relief for cases where execution was not possible. The effect of such an appointment 'is that it does not create a charge on the property, but that it operates as an injunction against the judgment debtor receiving the income or dealing with the property to the prejudice of the judgment creditor."

[53] The authorities bear out the proposition, important in this case, that the appointment does not have a proprietary effect.

[56] The phrase 'by way of equitable execution' attached to the receiverships ordered following judgment is, it has been said, capable of giving rise to confusion. As Cotton LJ said in In re Shepherd (1889) 43 Ch D 131, 135:

'Confusion of ideas has arisen from the use of the term 'equitable execution'. The expression tends to error. It has often been used by judges, and occurs in some orders, as a short expression indicating that the person who obtains the order gets the same benefit as he would have got from legal execution, but equitable relief, which is granted on the ground that there no remedy by execution at law; it is taking out of the way a hindrance which prevents execution at common law.'"

39.          In the course of his judgment, Collins LJ cited the observation of Bowen LJ in Re Shepherd, Atkins v Shepherd (1889) 43 Ch D 131 at 137, that:

"Equitable execution is not like legal execution; it is equitable relief, which the Court gives because execution at law cannot be had. It is not execution, but a substitute for execution."

40.          And concluded at para 69, that:

"[T]he expression by way of equitable execution" refers to the purpose of the appointment but does not turn it into a process of execution."

Discussion

41.          I cannot improve on Collins LJ's elucidation of the meaning of 'equitable execution' which makes plain the error of Vik's submission that the appointment of the Receivers was by way of enforcement of the judgment and therefore improper on the ground that the English judgment was not first made a judgment of this Court.

42.          The Receivers here, acting under the terms of the order appointing them, are concerned with recovering, for the benefit of SHI, funds allegedly siphoned away by the Second and/or Third Defendants to the action and transferred to the First Defendant. While this action may assist in the ultimate collection of the debt, it does not amount to enforcement of the judgment. There is no merit in this ground.

Ultra Vires

43.          The third jurisdictional challenge is that the Receivers acted ultra vires the terms of the Receivership Order.

44.          The Receivership Order provides at the material part,

"5. The Receivers shall have the power to take all such steps as may seem expedient to recover and preserve the Receivership interests and the sums receivable and in particular shall have power to do the following:

g.             take all such steps as may be reasonably necessary to have this Order recognised and/or enforced in any other jurisdiction;

h.             bring, defend, continue or compromise any application, proceedings or any other action in any jurisdiction as they may think fit, acting on behalf of the First Defendant as Receivers, whether using their own names or the name of the First Defendant, in order to collect, get in, take possession of, receive and/or recover the Receivership Interests.....provided, however, that in the case of proceedings brought in a jurisdiction outside England and Wales, such right is subject to the Receivers' right to bring such proceedings being (i) admitted by the defendant to the proceedings or (ii) recognised by the Court of the legal system of the jurisdiction where the proceedings are brought before they are commenced or (iii) raised formally by the Receiver as an issue in the proceedings at the first opportunity to do so."

45.          Mr. Matthews contends that the Receivers were obliged to apply for recognition before they issued the Writ. He suggests that their failure to do so means that when they commenced these proceedings they were acting in excess of the powers conferred upon them by the English Court. He also submits that the Receivers failed to raise their right to bring the proceedings "as an issue in the proceedings at the first opportunity to do so" and submits further that they may not now cure their default by their cross-application for recognition.

46.          It is right that no formal application to recognise the Receivers was made and no order granted in terms. That said, this Court was fully aware that the Receivership Order was made by the English High Court and that it had appointed the Receivers by way of equitable execution in aid of a judgment given against SHI in proceedings in England to which SHI had been a party and was satisfied that the Receivership Order gave the Receivers the right to institute proceedings on behalf of SHI and that the proceedings the Receivers had instituted in the Turks and Caicos Islands fell within the terms of the order appointing them. This Court then, as a matter of comity, lent its machinery in aid of that order, implicitly recognising the Receivers' right to bring the proceedings.

47.          On my reading of paragraph 5, if the Defendants accepted the Receivers had the right to commence the proceedings then, by virtue of clause 5h (i) of the Receivership Order, nothing more would have been required of this Court. In the circumstances, it seems to me that the vires of instituting proceedings without first applying for recognition is not a relevant issue.

48.          As to 5 h (iii), I construe that provision to mean that once a Defendant to proceedings challenges the Receivers' right to institute those proceedings - makes it an issue in the proceedings - the Receivers must raise the issue formally with the Court at the first opportunity to do so. I do not accept the suggestion made on behalf of Vik that this provision required the Receivers to raise the issue before instituting the proceedings. If that were so, it would render 5 h (ii) otiose and contradict 5 h (i) which makes it clear that the Receivers need not raise the issue at all if the Defendants accept their right to act.

49.          On one view, it may be said that the Receivers were required to raise the issue with the Court as soon as they were notified by a Defendant that their right to institute the particular proceedings was not accepted (at the earliest opportunity) but I accept the submissions on behalf of the Receivers made by Mr. Wilson QC that raising the issue at the first inter partes hearing was the earliest opportunity which would allow the Court to hear and determine all issues in dispute on the question of the Receivers' rights.

50.          I remain satisfied that the Receivers were properly appointed by the English High Court as equitable receivers of SHI, a Turks and Caicos Island company that submitted to its jurisdiction, to assist in execution of the judgment and that the Court was right to lend its machinery to their efforts to recover property against which execution may later be made.

51.          If formal recognition of the Receivers by order were required, then I would so order, subject to a consideration of the issue which has been raised by Vik, which is that the Receivers' application for recognition is improperly constituted as the Receivers have failed to join SHI.

The Joinder Issue

52.          Mr. Matthews submits that the question of whether the Court should recognise the Receivers' rights to bring this action is a matter on which SHI is entitled to be heard. In support of this submission, Mr. Matthews relies on Schemmer where the Receivers gave notice of their application for recognition to the company over whose assets they had been appointed. The company appeared and successfully challenged the application. I do not think Schemmer's case can be said to establish any such principle. In Schemmer's case the company over whose assets the receiver sought to claim had not been a defendant to the proceedings before the American court which appointed the receiver nor had it submitted to the Federal jurisdiction. In those circumstances, the company would necessarily be given notice of the Receiver's claim to be entitled to its assets.

53.          SHI was a party to the English proceedings and it is a party to these proceedings which are brought by the Receivers in its name and for its benefit. There could be no need to join it to any application for recognition. The company was free to intervene in these proceedings, of which it is well aware through Mr. Johansson who is said by the Receivers to be SHI's controlling mind, but did not seek to do so.6

The Conduct Issue

54.          There only remains to be determined whether, in the exercise of its discretion, this Court should set aside the Order giving leave to serve out on the ground that the Receivers did not make a fair presentation of relevant matters to this Court on the ex parte hearing contrary to their duty to make full and frank disclosure and/or have acted without the requisite independence in incepting the TCI proceedings and/or acted oppressively in the manner of serving the proceedings outside the jurisdiction.

55.          It follows from the foregoing discussion that I do not accept there was any breach of duty to make full and frank disclosure to the Court.

56.          Mr. Matthews contends that the Receivers have failed to act impartially in that they have issued this claim in what he contends is blind reliance on the evidence provided to them by Deutsche Bank where their duty required them to carry out their own investigations of the allegations made against Mr. Vik. In support of this proposition, he relies on the fact that the Receivers instituted these proceedings some 6 weeks after their appointment; that in their evidence before this Court they recite evidence previously served by Deutsche Bank in the English proceedings; and that the Receivers failed to engage in any pre-action correspondence with Mr. Vik thus depriving him of the opportunity to comment on the allegations of fraud made against him.

57.          Mr. Matthews invites me to dismiss the justifications offered by the Receivers for failing to do so, which include an assertion that there was no requirement under TCI rules for pre-action correspondence; that Messrs Vik and Johansson were shown in the English proceedings to be dishonest such that engaging in a pre-action correspondence would have been of little or no benefit to the Receivers; and that pre-action correspondence would have tipped off the Defendants who might have sought to evade service. He notes that the Receivers do not address in their evidence the complaint that they failed to undertake any independent investigation.

6At the date of the writing of this judgment, SHI's application to set aside the Receivership Order has been dismissed and the Order made final.

58.          It seems to me that, whatever the content of a receiver's duty to act impartially, it could never require a receiver to ignore the facts found by a Court if those facts assist him in forming a view as to the best way to proceed in exercising his mandate. It is plain from Mr. Crooks' evidence7 that the Receivers used the Court record for that very purpose.

59.          A Court should be slow, in any event, to second-guess receivers who are acting in good faith and exercising their best judgment to recover assets. As Ferris J pointed out in Mirror Group Newspapers plc v Maxwell (No. 2) [1998] 1 BCLC 638, receivers are appointed "because of their professional skills and experience and they are expected to exercise proper commercial judgment in the carrying out of their duties."

60.          The Receivers' failure to observe the pre-action protocol is not, without more, evidence of bad faith and the speed at which they moved to institute proceedings is not a valid source of complaint. I think it is right, as Mr. Wilson submits, that the Receivers are required to act impartially as between SHI and Deutsche Bank but not towards the Defendants or any of them who are opposing parties in what is hostile adversarial litigation.

61.          Mr. Matthews also urges the Court to find that the Receivers behaved oppressively in that they failed to serve the application for leave to serve out and the evidence supporting it when they served the proceedings on Mr. Vik abroad; failed to provide a legible note of the proceedings; and, having hampered him in the conduct of his defence by late service of the requisite documents, they unreasonably refused to consent to an extension of time for service of his Defence. None of these matters amount to conduct which could, on any view, be called oppressive nor are the matters complained of of such a nature as should be censured by this Court by setting aside of the grant of leave.

Johansson and Sarek

62.          The Defendants Johansson and Sarek adopt the submissions made on behalf of Vik in toto. In addition, Mr. Johansson seeks to set aside the grant of leave and the service of the Writ on the ground that he is not a necessary and proper party as no claim is made against him in a personal capacity.

63.          This is plainly not so. It is alleged that he is the principal actor who signed all the relevant deeds of transfer on behalf of Sarek by which the Reiten Interests (also the Receivership Interests) were transferred away from SHI. The claim against him is set in paras 6, 8 and 9 of the Amended Writ and amplified in the Statement of Claim. The submission is devoid of merit and Johansson's Summons is dismissed.

64.          Sarek by its Summons seeks to have the service of the Writ set aside on the ground that it is an exempted company. This is not a ground for setting aside service and it was not strenuously argued by Mr. McKnight. The summons is dismissed.

7 Crooks (2) dated 6 October 2017.

65.          I therefore dismiss the Summonses of the First to Third Defendants and allow the Summons issued by the Receivers. I will hear Counsel on costs.

DATED THE 18TH DAY OF JANUARY 2018

CHIEF JUSTICE