Minton v Goodyear Brokers Ltd 1993 Civil Jur. No. 96

• Jurisdiction: Bermuda
• Judgment Date: 28 July 1993
• Date: 28 July 1993
• Docket Number: Civil Jurisdiction 1993 No. 96
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Wade, J

Civil Jurisdiction 1993 No. 96

James Minton

Plaintiff

and

Goodyear Brokers Limited

Defendant

Mr. Jeffrey Elkinson for the Plaintiff

Mr. Geoffrey Bell for the Defendant

Locabail International Finance Limited v Dimitrios Manios and Transways (Chartering) SA 1988 Civil Appeal No. 4

Ninemia Corp. v Trava SchiffahrtsUNK [1984] 1 All ER 398

The NiedersachsenUNK [1984] 1 All ER 398

K/S A/S Admiral Shipping v Portlink Ferries Ltd.UNK [1984] 1 Lloyds Rep. 166

Continuation of Mareva injunction — Inter partes hearing — Material non-disclosure

DECISION

Wade, J.

This is the inter-parties interlocutory hearing following an interim Mareva Injunction granted on an ex-parte application to the Plaintiff on March 2nd, 1993. The Plaintiff seeks to continue the Mareva Injunction, while the Defendant seeks to have it discontinued or to substantially vary the terms of the order.

The Plaintiff, Mr. James Minton (Mr. Minton) is the former vice-president and general manager of the Defendant, Goodyear Brokers Limited (GBL).

The Defendant GBL is a subsidiary of the Goodyear Tire & Rubber Company (Goodyear).

On 25th February, 1993. Mr. Minton issued a specially endorsed writ against GBL claiming $279,688.89 damages in respect of alleged breaches pursuant to a resolution, of GBL's Board of Directors, dated 24th September, 1992. Simultaneously, on the 25th February, 1993, Mr. Minton filed an ex-parte application seeking a Mareva Injunction. On the 2nd March, 1993, the application was granted by Mr. Kenneth Brown, Acting Judge. The order reads in part as follows:

• ‘1. The Defendant be restrained and an injunction be granted restraining it until further Order whether by itself, servants or agents or principals or otherwise howsoever from transferring, dealing with, charging, mortgaging, assigning, disposing of (otherwise than to the Plaintiff or with prior written consent of the Plaintiff's Attorney) or removing from the jurisdiction any of its assets within the jurisdiction, including but not limited to the account in the name of the Defendant held at the branch of the Bank of N.T. Butterfield & Son Limited, account no. 2010-346124, save and insofar as the unencumbered value of such assets exceeds $279,688.89.

  PROVIDED THAT nothing in this Order shall prevent the Bank from exercising any rights of set-off it may have in respect of facilities afforded to the Defendant prior to the date of this Order

• 2. The Defendant or the Bank of N.T. Butterfield & Son Limited or any third party affected by this Order be at liberty to apply to set aside or vary the terms thereof or seek further directions on giving at least 24 hours notice in writing to the Plaintiff's Attorneys.

• 3. There be an Interlocutory Hearing on this matter at the date and time endorsed by the Registrar on this Order.

• 4. The costs of this Application to be reserved.’

At the inter-parties hearing before me, Mr. Bell, Counsel for GBL, contended that the Mareva Injunction granted on 2nd March, 1993 should not be allowed to continue on the grounds that Mr. Minton: failed to make full and frank disclosure, does not have a good arguable case against GBL, and has not established that there is a risk of dissipation of assets.

Alternatively, Mr. Bell argued that if, contrary to GBL's contention, the Court is satisfied that Mr. Minton has met the matters contended, it was) ‘… nevertheless inappropriate for the court to restrain the payment out of GBL's bank account of the sum of $122,605.53 which GBL maintains is payable to Goodyear India, and Mr. Minton maintains belongs to Goodyear, and the sum of $19.648 in respect of which Mr. Minton recognises in paragraph 6 of his affidavit sworn on 29th June, 1993 that Vredestein has a claim, and which must clearly, on the exhibited material, be payable to them.’ Mr. Bell maintained that in the event that the Court is minded to continue the injunction until trial, it should only do so in respect of the balance after the payments have been made to Goodyear India and Vredestein.

Mr. Elkinson urged the court not to disturb the order made by the Learned Acting Judge. He contended that the Plaintiff has adduced solid affidavit evidence to satisfy the requirements for the granting of the order. The Defendant has not put forward any legitimate reason why the order should be disturbed.

Mr. Minton's affidavit in support of his application for a Mareva Injunction states in part that:

‘… 1. The Plaintiff was (i) the Vice President and General Manager of GBL in charge of the daily activities of the Defendant; and (ii) Director and Officer of two other Goodyear subsidiaries—Path Finder Funding and Goodyear Export Limited responsible for their day to day operations. GBL's objective was to facilitate the parent company, Goodyear Tire & Rubber Company (‘Goodyear’) of Akron in the State of Ohio, in its international purchasing of new material for the international plants which were ultimately owned by Goodyear.

GBL acted as agent for Goodyear in respect of dealing with raw material suppliers wherever they may have been situated in the world. GBL entered agreements and ensured that proper discounts were received, and where appropriate, transmitted pro rata to the particular Goodyear plant involved.

… GBL commenced business in and about December 1975 … as a result of a meeting held on 24th September, 1992, it was resolved by the Directors of GBL to inter alia cease business activities as of the 30th November, 1992, and to declare all employees redundant as of that date, but the redundant employees be paid one month's pay in lieu of notice and separation pay at the rate of 3 weeks pay for every year of the employee's service with Goodyear.

… Whilst there were only 2 Directors present at the meeting of the 24th September, 1992. the minute and resolution were approved by Mr. J.D. Wolff, President of GBL and Vice President of Goodyear.

… in accordance with that Resolution, the Bermuda company has ceased to carry on any business … it is my belief that there are various bank accounts in which money remains which would satisfy part of my claim. I say that it is my direct knowledge that there is approximately $173,000.00 in a bank account at the Bank of N.T. Butterfield & Son Limited, Account No. 2010-346124. I say and it is my belief that, unless restrained by this Honourable Court, the Defendant will remove the said sum of money from the jurisdiction and accordingly any Judgment that this Plaintiff may obtain from this Honourable Court...