Mubarak v Mubarak and Twenty First Century Holdings Ltd

• Jurisdiction: Bermuda
• Judgment Date: 19 April 2002
• Date: 19 April 2002
• Docket Number: Civil Jurisdiction 2001 No. 134
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Simmons, AJ

Civil Jurisdiction 2001 No. 134

BETWEEN:

Aaliya Mubarak

Plaintiff

and

Iqbal Mubarak

First Defendant

and

Twenty First Century Holdings Ltd

Second Defendant

Mr. N Hargun for the Plaintiff

Ms. A Di Iorio for the 2nd Defendant

The following cases were referred to in the judgment:

Mercedes-Benz AG v LeidukUNK [1995] 3 All ER 929

Berliner Bank AG v Karageorgis and Silver Carriers SABDLR [1997] Bda LR 37

Hunter v BP Exploration Company (Libya) Ltd [1980] 1 NZLR 104

Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v R'As al-Khaimah National Oil Co. (No. 2)WLR [1987] 3 WLR 1023

TSB Private Bank International SA v Chabra & anotherWLR [1992] 1 WLR 231

The Siskina (Cargo Owners) v Distos SAELR [1979] AC 210

Mercantile Group (Europe) AG Aiyela and othersELR [1994] QB 366

C Inc plc v L and another Times Law Report May 4th 2001

Camdex International Ltd v Bank of Zambia (No. 2)UNK [1997] 1 All ER 728

Mareva injunction — Joinder — Registration of foreign judgment — Whether jurisdiction

RULING of Simmons, AJ

The Application

By a summons filed on the 23^rd April 2001 the second defendant seeks an order that the plaintiff's originating summons filed herein on 17^th April 2001 be struck out as against it as showing no cause of action. In the alternative the second defendant seeks an order that the Mareva injunction granted by this court on the 19^th April 2001 be discharged or varied. A further alternative ground of relief sought in the summons has been met, since filing, by a consent order which has been duly signed and issued.

The Background

The plaintiff and first defendant were husband and wife. They married in 1983. The first defendant has since 1980 operated several successful jewellery businesses. His business dealings are complicated therefore for present purposes I set out only skeletal facts. In March of 1994 the plaintiff and first defendant incorporate the second defendant company in Bermuda. They were the sole shareholders. They moved to England with their three children in August 1997 where they remain resident. In December of that year a fourth child was born to them.

Prior to coming to England most of the plaintiff's and the first defendant's shares in the second defendant company were bought in by the second defendant. A loan account was set up in the first defendant's name as a consequence of that transaction. The loan is believed to be in excess of $35,000,000, is unsecured and interest free. A discretionary trust was established in September of 1997 into which all the remaining shares of the plaintiff and the first defendant in the second defendant company were transferred. The plaintiff, the first defendant and their children were the beneficiaries. Subsequently the first defendant removed the plaintiff as a beneficiary of the trust. The loan is the subject of the wife's enforcement actions.

Thereafter, in March of 1998 the plaintiff and the first defendant separated. On 24^th July 1998 she filed a petition for divorce in the English High Court Family Division. At the same time she applied to court for and obtained an ex parte worldwide Mareva injunction. The injunction was later varied by consent of the parties. In the subsequent ancillary relief proceedings the first defendant chose to not make any representations. By a judgment and order dated 10^th December 1999 the plaintiff was awarded inter alia a lump sum of £4,875,000 against the first defendant.

In January 2000 the first defendant made various applications to the court to vary or stay enforcement applications made by the plaintiff. By order of that English High Court dated 20^th January 2000 enforcement of payment of the lump sum award was stayed on the basis that provided for the first defendant to make instalment payments. It would appear from affidavit evidence filed in this matter that no payment has been made.

The Bermuda Proceedings

On an ex parte application made by the plaintiff on 19^th April 2001, this court granted the plaintiff leave to issue and to serve an originating summons out of the jurisdiction on the first defendant and a Mareva injunction against both the first and second defendants. The originating summons sought the registration of the above-referred judgement of the English High Court of the 10^th December 1999 as a judgment of this court pursuant to the Judgments (Reciprocal Enforcement) Act 1958.

The originating summons duly issued out of the registry of this court on 27^th April 2001, and was duly served on the first defendant on the 8^th May 2001. On the 23^rd of April the second defendant caused an appearance to be entered herein. On the 24^th April the second defendant filed the application now being considered inter alia to strike out the originating summons as against the second defendant.

By order of this court of the 7^th June 2001 the...