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Ashley Dawson-Damer and Lyndhurst Limited [2019] (Bda) 8 Civ (6 February 2019)

February 2019 Trusts

BERMUDA

SUPREME COURT

Supreme Court grants preservation order over trust assets in Bermuda in aid of proceedings in Bahamas

This was an application by Ashley Dawson-Damer (“the Applicant”) on 24 September 2018 for an interim injunction preserving assets received by a Bermudian company called Lyndhurst Limited (“the Respondent”) in 2006 from a Bahamian company called Grampian Trust Company Limited (“Grampian”). Grampian is the trustee of a Bahamian trust known as the Glenfinnan Settlement (“the Settlement”). The assets are held by the Respondent as a trustee of the Came, Hewish and Emo Settlements (“the Bermuda Trusts”).

Background

The Applicant is a discretionary beneficiary of the Settlement, which is governed by the laws of the Bahamas. In 2006 and 2009, the trustee of the Settlement, Grampian, a Bahamian private trust company, made two appointments in the aggregate sum of US$402 million (“the Appointments”) – representing approximately 98% of the assets of the Settlement – $290 million of which were appointed onto the Bermuda Trusts of which the Respondent is the trustee.

In March 2015, the Applicant commenced proceedings in the Supreme Court of the Bahamas against Grampian seeking to set aside the Appointments. The Respondent was added as a defendant to the Bahamian proceedings in July 2018. In the Bahamian proceedings, which are ongoing, the Applicant sought inter alia (1) declarations that the 2006 Appointments and/or the 2009 Appointment are void, or alternatively voidable; (2) an order setting aside the 2006 Appointments and/or the 2009 Appointment; and (3) an order requiring the re-vesting of assets subject to the 2006 Appointments and/or 2009 Appointment (or the traceable proceeds thereof) to the Settlement. The Respondent elected not to submit to the jurisdiction of the Bahamian courts and refused to participate in the Bahamian proceedings.

In the Bahamian proceedings the Applicant claimed that when exercising its power to make the 2006 Appointments and/or the 2009 Appointment, Grampian failed to exercise its discretion fairly, properly, reasonably or even-handedly. In particular, inter alia, the Applicant asserts that Grampian exercised its powers for the ulterior and improper purpose of excluding the Applicant from benefiting from the vast bulk of the trust fund, having determined not to exercise its power to exclude the Applicant from the class of beneficiaries on the grounds that it would be provocative to do so.

The Applicant contended that if she succeeded in a claim in the Bahamian proceedings, the assets representing the traceable proceeds of those Appointments would be held by the Respondent on bare trust for Grampian as trustee of the Settlement. In these circumstances the Applicant sought an undertaking from the Respondent that the Respondent would not dissipate the Assets pending the resolution of the Bahamian proceedings. The parties engaged in lengthy correspondence in relation to the issue of the undertaking by the Respondent. The Respondent confirmed that it had made no distributions to the beneficiaries of the Bermuda Trusts and whilst it had no present intention of making any distributions to the beneficiaries, it did not consider it appropriate to give the undertaking sought. Therefore the Applicant sought a preservation order from the Supreme Court of Bermuda to preserve the Assets pending the resolution of the Bahamian claim.

Outline of the issues between the parties

The Applicant contended that the test for granting injunctive relief in the form of a preservation order where a proprietary claim was advanced was the American Cyanamid test (American Cyanamid -v- Ethicon [1975] AC 396) but it was not necessary to show that there was a real risk of dissipation of the assets. er.

The Respondent accepted that this was the case where proceedings were pending in Bermuda. However, it contended that as the underlying proceedings were not pending in Bermuda but pending in a foreign jurisdiction the Court should not exercise its statutory jurisdiction to grant a preservation order in aid of the foreign proceedings unless it could be shown that any judgment resulting from the foreign proceedings would be enforceable in Bermuda. The Respondent argued that there was an established body of case law holding that if the foreign judgment would not be enforceable in Bermuda, having regard to Bermudian conflict of law rules relating to the enforcement of foreign judgments, a Bermuda court would not grant the relief sought.

 

To continue reading full articles in PDF format:
Ashley Dawson-Damer and Lyndhurst Limited [2019] (Bda) 8 Civ (6 February 2019)

 

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