Thomas Doctoroff v Crown Global Life Insurance Ltd (Bermuda)
| Jurisdiction | Bermuda |
| Judge | Mussenden J |
| Judgment Date | 07 June 2021 |
| Docket Number | CIVIL JURISDICTION (COMMERCIAL COURT) |
| Court | Supreme Court (Bermuda) |
[2021] SC (Bda) 44 Com
In The Supreme Court of Bermuda
Mussenden J
CIVIL JURISDICTION (COMMERCIAL COURT)
2019: No. 306
Alex Potts QC, Conyers and Laura Williamson, Kennedys Chudleigh Ltd. for the Plaintiff
Steven White, Sam Riihiluoma, Appleby (Bermuda) Limited for 1 st Defendant
Application for summary judgment, strike-out of the Defence and parts of the Statement of Claim, pleading breach of statutory duty, pleading dishonest assistance
These matters came before me in respect of applications by both the Plaintiff Mr. Doctoroff and the First Defendant Crown Global Life Insurance Ltd (“ Crown Global”).
The Plaintiff's Summons dated 30 January 2020 seeks:
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a. summary judgment against Crown Global pursuant to Rules of the Supreme Court (“ RSC”) Order 14, rule 1 and/or RSC Order 27, rule 3 in the sum of US$3.5 million plus interest on the basis that:
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i. Crown Global has no defence to the Plaintiff's claims, on a true construction of the Deferred Variable Annuity Policy and taking into account the passage of time to date; and/or
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ii. Crown Global has effectively admitted liability to the Plaintiff, by its letters dated 22 February 2019 and 10 May 2019;
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b. to strike out Crown Global's Defence (and, in particular, the denial of liability at paragraph 25 of the First Defendant's Defence), pursuant to RSC Order 18 rule 19(a), on the basis that it discloses no reasonable defence, and judgment be entered accordingly in favour of the Plaintiff;
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c. default judgment and/or summary judgment entered for the Plaintiff against the Second to Seventh Defendants (jointly and severally, or against each of them as the Court thinks fit), in the sum of $3.5 million plus interest and costs, pursuant to RSC Order 13, rules 1 to 6, on the basis that:
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i. None of the Second to Seventh Defendants have entered an appearance to the Concurrent Writ within the time limit for doing so; and/or
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ii. None of the Second to Seventh Defendants have filed or served a Defence to the Plaintiff's claims; and/or
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iii. None of the Second to Seventh Defendants have any defence to the Plaintiff's claims;
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d. Further or alternatively, Crown Global to provide Further and Better Particulars of its Defence, pursuant to RSC Order 18, rule 12(3), in response to the Plaintiff's Request dated 1 October 2019. Since issuing the January 2020 Summons, Crown Global has provided Further and Better Particulars of its Defence and this application is therefore no longer pursued.
The Plaintiff's Summons dated 23 September 2020 seeks to amend the Statement of Claim (“ SoC”) as set out in the draft Amended Statement of Claim (“ ASoC”), pursuant to RSC Order 20, rule 5, in the event that the Plaintiff's primary relief is not granted.
The evidence filed by the Plaintiff in support of its applications are the first, third, fourth and fifth affidavits of the Plaintiff ( “Doctoroff1, Doctoroff3”, “Doctoroff4”, “Doctoroff5” for short hand) and their exhibits in particular the Policy and the Placement Memorandum.
Crown Global's Summons dated 23 September 2020 seeks the following:
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a. Leave for the First Defendant to amend its Defence as set out in the Draft Amended Defence attached to the Summons. This application is not opposed by the Plaintiff.
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b. Pursuant to RSC Order 18, rule 19(1)(a):
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i. Paragraph 44b of the Plaintiff's SoC be struck out as it does not disclose a reasonable cause of action; and
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ii. The allegations by the Plaintiff as to breaches of the statutory duty by the First Defendant be struck out as they do not disclose a reasonable cause of action.
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The evidence filed by Crown Global in response to the application for summary judgment and in support of Crown Global's applications are the first, second and third affidavits of Alex Seldin, Senior Vice President and General Counsel of Crown Global, ( “Seldin1, Seldin2”, “Seldin3”) and their exhibits and the first and second affidavits of Damien Rios ( “Rios1” and “Rios2”).
The Plaintiff is an individual currently residing in New York, United States of America. He previously lived and worked in Asia for a number of years as an advertising executive.
Crown Global is an exempted company incorporated in Bermuda on or about 4 April 1994 pursuant to the provisions of the Companies Act 1981.
Crown Global was first incorporated by way of a private act known as the Investors Variable Life Insurance Company Limited Act 1994, which was subsequently amended by the Investors Variable Life Insurance Company Limited Amendment Act 1998, the Scottish Annuity & Life International Insurance Company (Bermuda) Ltd. Consolidation and Amendment Act 2001, and then the Crown Global Life Insurance Ltd. Act 2015.
The business of Crown Global includes long term insurance (including life insurance and deferred variable annuities). As such, Crown Global is registered as a Long Term Class C Insurer with the Bermuda Monetary Authority (“ BMA”), and the conduct of its business is subject to the Insurance Act 1978 (and regulations made thereunder) as well as the Life Insurance Act 1978.
The Second Defendant Mr. Paul Gambles ( “Mr. Gambles”) is an individual currently thought to be resident and doing business in Thailand, although originally domiciled in the UK and a UK citizen, apparently doing business internationally and in a number of different jurisdictions. Mr. Gambles held himself out to the entire world, including through his website www.mbmg-investment.com, as being expert in the areas of investment management, asset management, asset allocation, tax structuring, tax advice and economic analysis, with a particular focus on providing investment management services and tax advice to expatriate professionals working in Asia.
In or about 1994, Mr. Gambles established what he describes as the “ MBMG Group” of companies. The MBMG Group includes a variety of entities trading under the MBMG or Garmor names (or some variation thereof) in jurisdictions such as Thailand, Singapore, Mauritius, the British Virgin Islands, and The Bahamas (including the Third to Seventh Defendants). At all material times, Mr. Gambles has acted or held himself out as the Chief Executive Officer and/or the Chief Investment Officer and/or owner and controller of all such entities including through some websites.
The Third Defendant is or appears to be a company incorporated by Mr. Gambles in Thailand on or about 2 January 2014, engaged in investment management activities and services.
The Fourth Defendant is, or appears to be, a company incorporated by Mr. Gambles in Singapore on or about 15 March 2009, engaged in investment management activities and services. According to the Plaintiff, it may have been struck off the Singapore company register on or about 5 November 2017.
The Fifth Defendant is, or appears to be, a company incorporated by Mr. Gambles in the British Virgin Islands (“ BVI”) on or about 2 January 1996 engaged in investment management and services. According to the Plaintiff, it may have been struck off the BVI company register at some point after 3 April 2016. According to Crown Global's Defence, the Fifth Defendant served as investment manager of the Policy initially from when the Policy commenced in 2012 to December 2015.
The Sixth Defendant is, or appears to be, a company incorporated by Mr. Gambles in Mauritius on or about 11 March 2010, engaged in investment management activities and services. According to Crown Global's Defence, the Sixth Defendant was appointed as the investment manager of the Policy in December 2015 in place of the Fifth Defendant at the Plaintiff's request.
The Seventh Defendant is, or appears to be, a company incorporated by Mr. Gambles in Mauritius on or about 17 August 2017, engaged in investment management activities and services. According to Crown Global's Defence, the Sixth Defendant and Seventh Defendant are the same entity as the Sixth Defendant changed its name to Garmor Asset Management Ltd.
The hearing of these applications took place on 9 April 2021 and 13 April 2021. Prior to resuming the hearing on 13 April 2021 the Court received an email from Janjira Sumanus, of Hua Hin Accounting & Law, on behalf of Mr. Gambles. Mr. Potts and Mr. White had also received the email. The email requested an adjournment of the hearing of the applications before the Court. Mr. White submitted that the email was a matter for Mr. Potts to deal with.
Mr. Potts submitted that the email was from a Thai lawyer. He noted that there had been no appearance filed in the Court by any counsel for Mr. Gambles or the other Defendants or as litigants in person. The Summons for the hearing had been served for over a year and notice was sent to Mr. Gambles and the other Defendants as a courtesy but they had never engaged with the process. Further, the email was from someone who stated that he/she was a lawyer, a shareholder and a director, but that he/she was making assertions that were not on oath in affidavit form before this Court.
Mr. Potts read the email for the record and then submitted that it was inappropriate for Janjira Sumanus to request an adjournment, Janjira Sumanus had no right to be heard, any adjournment would be an enormous prejudice and cost to the Plaintiff and the request was not...
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