Re US Global Health—Moscow Ltd 1995 Civil Jur No 446

• Jurisdiction: Bermuda
• Judgment Date: 12 January 1996
• Date: 12 January 1996
• Docket Number: In the Supreme Court of Bermuda Companies (Winding-Up) No. 446 of 1995
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Ground, J

In the Supreme Court of Bermuda Companies (Winding-Up) No. 446 of 1995

Re U.S. Global Health—Moscow Limited

Mr. Hargun for the Petitioner; and

Mr. Martin for Worldwide Medical Services Corp.

In re Rica Gold Washing CompanyELR (1879) 11 Ch.D. 36

Companies (Winding Up) Rules, rule 21

Whether Petitioner is a creditor — Whether Company insolvent

JUDGMENT

This matter comes before me on the Petition of US Global Health Ltd (‘the Petitioner’) to wind up US Global Health—Moscow Limited (‘the Company’). The Petitioner is the majority shareholder of the Company, holding 85% of its shares, but due to the provisions of the bye-laws of the Company was not able to cause it to petition for its own winding up.

the Company was in the nature of a joint venture between the Petitioner and certain other minority shareholders, including Worldwide Medical Services Corp. (‘Worldwide’). Worldwide appears in opposition to the Petition, the Company does not, although I attach no real weight to that as it is controlled by the Petitioner. No other creditor or contributory appears, although Worldwide claim that the other individual shareholders are ‘affiliated’ with them.

The Petition was originally framed as a contributory's Petition upon the just and equitable ground, although in support of that it was alleged that it was insolvent, at least without the continuing support of the Petitioner. Of course a contributory has no locus to petition to wind-up an insolvent company, and the Petition as originally framed was therefore demurrable: In re Rica Gold Washing Company(1879) 11 Ch. D. 36. No doubt foreseeing this, counsel for the Petitioner sought, in the course of his opening address, to amend the Petition to add an averment that the Petitioner was a creditor of the Company, and to frame the ground for dissolution as the inability of the Company to pay its debts. That amendment was contested by counsel for Worldwide, who had come prepared to take the point as to locus. After hearing argument I allowed the amendment as I considered it permitted the real issues to be tried, and was not, on the face of it, necessarily without substance or hopeless. Upon doing so I indicated that I was prepared to offer Worldwide whatever adjournment they needed to file evidence to meet the Petition as amended, but counsel declined that offer. I therefore proceeded forthwith to try the matter upon the affidavit evidence then before...