On 23 May 2024, The Honourable Justice Parker, in Ascentra Holdings, Inc. (in Official Liquidation) v Ryunosuke Yoshida & Ors) (FSD 300 of 2023), granted an on-notice interim proprietary injunction in favour of the plaintiff company, Ascentra Holdings Inc. (in Official Liquidation) (the “Company”), acting by its Joint Official Liquidators (the “JOLs”), in respect of funds held in various bank accounts in Singapore, Taiwan and the United States (the “Funds”). The Funds, originally totalling approximately US$270m, form the subject matter of the Company’s proprietary claim in ongoing proceedings, having been under the control of the defendant parties since the Company’s entry into voluntary liquidation (and later official liquidation).
Background
The Company’s liquidation commenced in June 2021. Shortly thereafter, a dispute arose with the defendant parties (the “Defendants”) regarding the ownership of the Funds, which are held and controlled by the Defendants. Amongst other things, the Company asserts a proprietary claim to the Funds, and claims that the Defendants are holding all of the Funds on trust for it. Although the Defendants were aware of the Company’s position from early on in the Company’s liquidation, they continued to use the Funds to pay legal fees, directors’ fees and various other contested expenses allegedly paid “in the ordinary course of business”. As a result of the same, and in light of the rate at which the Funds were being expended, the Company issued an application for a proprietary injunction, seeking an order that the Funds (or what was left of them) be paid into Court or escrow, pending the resolution of the dispute between the parties.
The Judgment
In his Judgment, Mr Justice Parker considered: (i) whether the Court had jurisdiction to make an order pursuant to O.29, r.2(1) and/or r. 2(3) of the Grand Court Rules (2023 Revision) (the “GCR”); and, if so, (ii) whether such an order should be made.
Jurisdiction
The Court’s jurisdiction to make an order in relation to the detention, custody or preservation of any property is set out in GCR O.29, r2(1) and/or r.2(3), as follows:
GCR, O.29, r.2(1): “On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject matter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter.” (Emphasis added.)
GCR, Order 29, r.2(3): “Where the right of any party to a specific fund is in dispute in a cause or matter, the Court may, on the application of a party to the cause or matter, order the fund to be paid into Court or otherwise secured.” (Emphasis added.)
The Defendants argued that, in any event, there was no jurisdiction to grant the relief sought on the Company’s application because there was “no property” or “no specified fund” over which any proprietary injunction could be granted. It was argued that monies in a bank account are a choses in action, which do not fall within the definition of “property”, and that to be a “specified fund”, the monies would have to be ring-fenced in an account, in order to be identifiable. The Defendants also argued that there had been intermingling of funds in the relevant bank accounts.
Mr Justice Parker found that, although each case turns on its specific facts, the Court does in principle have jurisdiction to make orders for the preservation of monies held in bank accounts, and that where monies derived from a fiduciary relationship remain in a bank account and can be identified, they fall within GCR O.29, r.2(1). In relation to the definition of “a specific fund” (GCR O.29, r.2(3)), the Judge drew a distinction between money which is the subject of a claim in debt or damages, and money in respect of which there is a claim to beneficial ownership. The Court found that, in the present case, the claim was for property in the form of identifiable and distinct funds in respect of which the Company claims beneficial interest, under GCR o.29, r.2(3).
The Court found insufficient evidence for intermingling, and found that (even if there had been intermingling) the Defendants would, on the Company’s hypothesis/basis for its claim, have been under an obligation to keep the Funds separated for the benefit of the Company. Any intermingling, it found, would have been in breach of that obligation.
In the circumstances, the Court found that it had jurisdiction to grant the relief sought.
Relief
Mr Justice Parker identified the test for granting a proprietary injunction, requiring the Company to show that there is a serious issue to be tried (a “real, as opposed to a fanciful, prospect of success on the claim”). Upon consideration of the pleaded case, and the evidence in support filed by the Company, he found that the Company has a real prospect of success at trial, and that the Company had tendered a plausible factual and legal basis for its claims. The threshold test was therefore met.
In relation to the balance of convenience test, the Court weighed the prejudice to the Company in light of the Defendants’ clear intention to continue to use the Funds (if not restrained), versus the prejudice to the Defendants in terms of their reliance on the Funds to properly advance their case in the proceedings and for the payment of the First Defendant’s personal expenses. Although Mr Justice Parker noted the First Defendant’s sworn statement that the Funds would only be spent on alleged ordinary business expenses, the Court formed the view on the evidence that the Funds were being disbursed at such a rate that a proprietary order was appropriate. In the circumstances, and having regard to the potential prejudice to the Company if ultimately successful at trial, the Court found it just and convenient to grant the relief sought by the Company.
Cross-Undertaking in Damages
Parker J’s decision is of particular interest for the analysis of the law relating to the requirement for a cross-undertaking in damages and for the Judge’s decision, in all the circumstances of this case, that an unlimited cross-undertaking in damages would not be required. Parker J decided – having considered, among other authorities, Lewison J’s decision in JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev (CA) [2016] 1 WLR – that the justice of the case, in all the circumstances, meant that the JOLs need only offer a cross-undertaking limited to the value of the unencumbered assets of the Company’s estate which remain at the end of the proceedings.
A copy of the Judgment is available here: Judgment – Ascentra Holdings, Inc v Ryunosuke Yoshida et al- FSD 300 of 2023 (RPJ).
Comment
The Judgment provides welcome guidance on the Court’s approach to proprietary injunctions and the matters that will be considered by the Court in relation to such applications. In particular, it provides helpful analysis of the law relating to the requirements for a cross-undertaking in damages, and confirmation that, depending on the claim and the factual circumstances of a case, relief pursuant to GCR O.29, r.2(1) and/or r.2(3) can be granted over funds in a bank account in order to preserve those funds pending the resolution of a proprietary dispute relating to them.
If you have any queries about the matters raised in this note, please do not hesitate to contact the authors.
Campbells LLP acts as Cayman Islands counsel for the Company and for its Joint Official Liquidators, Graham Robinson and Ivy Chua Suk Lin.
