The Representation of the Joint Liquidators of Anthony Investments (Esplanade) Ltd

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: D. R. Hunt,Jurats Fisher,Olsen
• Judgment Date: 17 March 2015
• Neutral Citation: [2015] JRC 56A
• Date: 17 March 2015

[2015] JRC 56A

ROYAL COURT

(Samedi)

Before:

D. R. Hunt, Q.C., Commissioner, and Jurats Fisher and Olsen

In The Matter of the Representation of the Joint Liquidators of Anthony Investments (Esplanade) Limited, Evreux Holdings Limited And Jcn Investments (Jersey) Limited

And In The Matter of Anthony Investments (Esplanade) Limited and Evreux Holdings Limited and Jcn Investments (Jersey) Limited (All In Liquidation)

And In The Matter of Article 155 of the Companies (Jersey) Law 1991, As Amended

Advocate R. O. B. Gardner for the Joint Liquidators.

Advocate S. J. Young for Mrs Crystal Neal as Administratrix.

Authorities

Companies (Jersey) Law 1991.

Bankruptcy (Désastre)(Jersey) Law 1990.

Bankruptcy (Désastre) Rules 2006.

Branch & Manning (as joint liquidators of AAA Holdings Ltd.) v McEvoy [2009] JRC 110.

Re Greenhaven Motors Ltd (in liquidation) [1999] 1 BCLC 635.

Companies — sanction sought by the joint liquidators to compromise various claims by and against the companies.

THE COMMISSIONER:

1 At the conclusion of the hearing this morning (17 ^th March, 2015,) the Court announced its decision that it would grant the relief sought by Mr Adrian Rabet (of Messrs Moore Stephens) and Mr Philip Sykes (formerly of Messrs Moore Stephens and now of Baker Tilly London), the Joint Liquidators (“the Liquidators”) of Anthony Investments (Esplanade) Limited (“AI(E)”), Evreux Holdings Limited (“EHL”) and JCN Investments (Jersey) Limited (“JCN”) (jointly “the Companies”) in their Representations dated 27 ^th February, 2015, (“the February 2015 Representation”) and 17 ^th March 2015, (“the March 2015 Representation”) for reasons that we would set out in a reasoned judgment to be delivered later the same day. The effect of the relief which we granted is that:–

This is our reasoned judgment setting out our detailed reasons for our decision.

• (i) the Liquidators can ignore the conclusions reached in a report (“the BBA Report”) prepared by Messrs. BBA Accountants (“BBA”) in 2011 and that they need not commission an equivalent report themselves; rather they can draw a line under any further attempt to investigate directors — fees, salaries, loan movements and/or distributions received by the Neal family members during the lifetime of the Companies; and

• (ii) the Court sanctioned the compromises reached by the Liquidators of the claims by certain members of the Neal family.

Introduction

2 On 9 ^th October, 2013, the Court ordered the winding up of the three Jersey Companies under Article 155 of the Companies (Jersey) Law 1991 (“the Companies Law”), for reasons that would be given in due course (“the October 2013 order”). The Court appointed the Liquidators and made a number of ancillary orders. The Court delivered its reasoned judgment on 12 ^th November, 2013, (“the November 2013 judgment”).

3 Although the October 2013 order was, of course, in the public domain, the Court ordered that the proceedings on that date should be private. Likewise the November 2013 judgment was private to the parties. By an order of 12 ^th November, 2013, the Court directed that privacy should expire when Ogier House, 44 Esplanade, St Helier, Jersey (“the Property”) was sold or by further order of the Court. The Property was, in circumstances which we describe hereafter, sold by a contract passed before the Royal Court on 16 ^th January, 2015. Accordingly the privacy originally attaching to our November 2013 judgment, and to our subsequent judgments in this matter, no longer applies and all such judgments (including this judgment) are now in the public domain.

The factual background

4 This is set out in more detail in paras 2 to 8 of our November 2013 judgment, and in paras 5 to 16 of our judgment delivered on 3 ^rd December, 2014, (“the December 2014 judgment”). The following, updated summary will suffice for the purposes of the present application.

5 In November 1997 Mr John Neal established a discretionary trust (“the Trust”) in Jersey, the present beneficiaries being his widow (Chrystal), his four adult sons, including Simon (married to Aida) and Stephen, and their issue. (For the sake of convenience and without meaning any disrespect, we again refer in this judgment to the various members of the Neal family by their first names.) In February 1999 John suffered a serious stroke and was thereafter incapacitated; he died in 2014. The present trustee of the Trust is Hawksford Trustees Jersey Limited (“Hawksford” or “the Trustee”). Unfortunately the history of the Trust, at least in the years immediately preceding the liquidation, had been one of hostility, mistrust and dispute between some at least of the beneficiaries. In particular Simon and Aida had made claims against JCN and AI(E) in 2011, which were compromised in December 2012 on terms requiring substantial payments to Simon and Aida.

6 The only substantial asset of the trust was the Property, which is let to Ogier Esplanade Limited and is occupied by Ogier and its former fiduciary services business now known as Elian. The Property was owned by AI(E) and was the subject of a first charge in favour of HSBC. AI(E) is 100% owned by JCN, JCN is in turn 100% owned by EHL and EHL is in its turn 100% owned by the Trust. It was common ground between the parties to the 2013 winding up proceedings, especially after a refinancing proposal had fallen through in September of that year, that the only way forward for the Trust as a whole was for the Property to be sold and for any surplus after payment of creditors to be distributed upwards from AI(E) via JCN and EHL to the Trust for distribution among the beneficiaries.

7 The lease of the Property to Ogier commenced on 7 ^th November, 2009, and will terminate on 6 ^th November, 2033. A rent review under the lease started in November 2012, with AI(E) seeking a greater uplift in the rent than the automatic uplift provided by the lease. As at October 2013, the rent review had gone to arbitration but had not been concluded.

8 All parties to the 2013 winding up proceedings were agreed that the Property could not sensibly be marketed, or the best price obtained for it, unless and until the rent review had been concluded, either by an arbitration award or by agreement. Even then, as we pointed out in our November 2013 judgment, the amount of the new rent would be but one factor in the overall picture; the amount of the yield would be another. On the figures put before us in October 2013 we accepted that there was a real possibility that the sale of the Property might in due course generate a modest surplus for distribution to the beneficiaries. But we added that in the ultimate analysis the Property was, of course, only worth what someone would pay for it.

The winding-up proceedings in October 2013

9 The Amended Representation for the winding-up of AI(E) was made by Stephen as one of the four directors on 19 ^th September, 2013. The Representations for the winding up of both EHL and JCN (each made pursuant to a unanimous resolution of its directors) were dated 3 ^rd October. At the hearing on 9 ^th October the Representors, the Trustee and the Viscount were all represented, as were the proposed liquidators (by Advocate Gardner of Bedell Cristin Jersey Partnership). At the outset of the hearing the Court acceded to an application by Simon and Aida to intervene in the proceedings. The Court granted the Representors' application on the grounds that:–

• (i) on the basis of the figures set out in Stephen=s various Affidavits, and of the opinion of Mr Rabet, AI(E) was insolvent on a cash flow basis; and

• (ii) the price to AI(E), and to JCN and EHL, of further forbearance by Simon and Aida in respect of their claim made it just and equitable to wind the Companies up.

10 Para 3 of the October 2013 order conferred upon the Liquidators:–

“all powers as set out in Chapter 4 of Part 21 of the Law and the following specific powers:–

… .

(vi) to apply to the Royal Court for a revision or extension of any of their powers and for the sanctioning or ratification of any of their acts …”

Chapter 4 of the Companies Law includes the following provisions:–

“170 Powers and duties of liquidator

(1) The liquidator in a creditors' winding up may, with the sanction of the court or the liquidation committee …

(a) pay a class of creditors in full;

(b) compromise any claim by or against the company .

(2) A liquidator may, without sanction, exercise any other power of the company as may be required for its beneficial winding up.”

The application in December 2014

11 In 2012 the Neal family had approached Buckley & Co. (“Buckley”), a local firm of property agents, with a view to a possible sale of the Property. In September 2012 both Buckley and Cushman & Wakefield LLP (“C&W”), a global sales agent, had been appointed joint agents. The initial marketing material for the Property had been produced in November 2012 but no buyer had emerged by the time that the Companies were ordered to be wound up, due to the depressed state of the real estate market in Jersey at the time and the uncertainty caused by the ongoing rent review. As a result of these two factors, the agents had not actively marketed the Property in 2013 and, following the winding-up order, they were asked not to do so by the Liquidators during the first half of 2014 pending the outcome of the rent review.

12 The rent review was concluded in early June 2014. AI(E)'s attempt to procure an uplift in the rent greater than that provided by the lease failed; the effect of the arbitrator's award dated 6 ^th June was that the rent for the Property was not increased beyond the contractual rent (as automatically uplifted) applicable from 7 ^th November, 2012. Later the same month the Liquidators confirmed the joint appointment of Buckley and C&W to find a purchaser for the Property. In due course a preferred bidder emerged in the form of...