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BVI Commercial Court Hands Down Seminal Judgment in Unfair Prejudice Claim

On 23 November 2021, the BVI Commercial Court handed down judgment in Soemarli Lie v (1) Ng Min Hong and (2) Success Overseas Finance Limited (the “Company”) following a four-week trial which took place in October 2020. Conyers acted for the successful claimant, Mr Lie, whose unfair prejudice allegations against his fellow shareholder Mr Ng were confirmed by the Court in full.

In particular, the Honourable Mr Justice Wallbank held that there was a “quasi-partnership” relationship in existence between Mr Lie and Mr Ng such that both were expected to have access to the Company’s records and that Mr Lie’s right to such access was wrongfully denied by Mr Ng. The Court held further that the non-payment of millions of dollars in dividends from an Indonesia subsidiary to the Company, which caused the claimant “obvious economic harm”, was also an act of unfair prejudice. So too was Mr Ng’s disposition of more than 50% of the assets of the Company to a company owned by himself and his brother in 2017. The Court held that this was an “egregious and unlawful” appropriation of the claimant’s economic interest in the Company. It was held further that a 2018 rights issue of the Indonesian subsidiary (which served to drastically dilute the claimant’s  economic interest in that subsidiary) was a “crude and deliberate act of share dilution” and was also unfairly prejudicial to Mr Lie. Lastly, the Court held that a final disposition of all the Company’s remaining shares in the Indonesian subsidiary in 2019 also amounted to unlawful appropriation and was in breach of section 175 of the BVI Business Companies Act (which provides that a disposition of over 50% of a company’s assets ought to be referred to the company’s members for approval).

 

 

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BVI Commercial Court Hands Down Seminal Judgment in Unfair Prejudice Claim

 


Richard G. Evans
Partner

British Virgin Islands   +1 284 852 1115


Alecia Johns
Counsel

Cayman Islands   +1 345 814 7255


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