Templar Capital Ltd v Griffin Line General Trading LLC
| Jurisdiction | Bermuda |
| Judge | Bell JA |
| Judgment Date | 23 October 2023 |
| Neutral Citation | BM 2023 CA 20 |
| Court | Court of Appeal (Bermuda) |
| Year | 2023 |
| Docket Number | Civil Appeal No. 11 of 2023 |
Neutral Citation Number: [2023] CA (Bda) 20 Civ
JUSTICE OF APPEAL Geoffrey Bell
(Sitting as a Single Judge of the Court of Appeal)
Civil Appeal No. 11 of 2023
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SUPREME COURT OF BERMUDA SITTING IN ITS
ORIGINAL CIVIL JURISDICTION
THE HON. CHIEF JUSTICE
CASE NUMBER 2020: No. 243
Delroy Duncan KC and Ryan Hawthorne, Trott & Duncan Limited, for the Appellant
Dante Williams, Marshall Diel & Myers Limited, for the Respondent
This ruling is made on the application of Templar Capital Limited (“TCL”) for leave to appeal against the ruling of the Chief Justice of 22 March 2022, in which he refused TCL's application to vary the terms of a freezing injunction made by Subair Williams J on 16 September 2020, and dealing with related ancillary matters of fortification of the undertaking in damages and security for costs. The Chief Justice refused leave to appeal on 31 March 2023.
This ruling is concerned only with the application to amend the freezing order, with argument not yet having been heard on the issues of fortification and security. However, there was a preliminary matter which arose, because Griffin Line (“GL”) argued that TCL was not entitled to relief because of the delay in making the application, and because of the likelihood that a trial of the substantive matter could be heard at much the same time as the appeal of the interlocutory application, thus making the benefit of any variation in the freezing order doubtful. I declined to accede to GL's argument on the basis that, although the delay has been considerable, it had not been clearly established that TCL was to blame for that delay, and, in relation to the second aspect, it seemed to me that GL was being overly optimistic as to the likely date of a trial, given the extent of the outstanding trial preparation.
The background concerns the operation of a coal mine in South Africa, Optimum Coal Mine (Pty) (“OCM”), which is in business receivership in South Africa, where the relevant insolvency procedure is conducted by regulated business rescue practitioners (“BRPs”), similar to insolvency practitioners in this jurisdiction. The BRPs have proposed a number of rescue plans, the latest of which (“the Plan”) is supported by TCL. The Plan deals with a claim which Centaur Ventures Ltd (“CVL”, a company which is itself in liquidation) has against OCM (“the OCM Claim”), relating to pre-payments for coal which was not delivered by OCM. CVL and TCL are Bermuda companies, while GL is incorporated in the United Arab Emirates. The funds for that transaction came in the form of loans from GL to CVL with a value of approximately US$74 million. CVL sold the OCM Claim to TCL in April 2020 for approximately US$11.9 million, after a previous sale for approximately US$73 million had fallen through. The effect of the Plan would be to transfer the OCM Claim to a subsidiary of TCL, Liberty Coal, which is outside the jurisdiction, such that questions of recoverability of the benefit of the OCM Claim from TCL arise. The substantive issue in these proceedings concerns the transaction whereby CVL sold the OCM Claim to TCL, both of which are companies said to be controlled by Daniel McGowan, where the proceedings seek to set aside the sale of the OCM Claim to TCL pursuant to the relevant provisions of the Conveyancing Act 1983.
Mr McGowan had maintained that the sale of the OCM Claim had been on a genuine arm's length commercial basis, but had declined to give the details which had been sought in relation to the transaction, something which led to a finding of contempt of court. That no doubt also explained the court's cynicism regarding Mr McGowan's business dealings, and in this regard I should mention that there are a number of related proceedings before the lower court, of which the Chief Justice has knowledge, but I do not. No doubt it was this background which led the Chief Justice to comment in paragraph 22 of his judgment that the background facts demonstrated to the court that GL was fully justified in its concern that unless the court took all measures available to it, there was a...
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