Offshore Case Notes
William Hare and Sarah McLennan
7 November 2022
The Obligations to give Full and Frank Disclosure and a Fair Presentation when presenting an Ex Parte Application: A Cautionary Tale
Bruno Wang & another v. Real Assets (RA) Global Opportunity Fund I Limited & another
A recent decision of the BVI Commercial Court highlights the importance of presenting cases fairly and with full and frank disclosure, and the consequences that may follow when these obligations are not met. Ex parte orders may be discharged and, in cases where the failures are not innocent, they may not be re-granted.
On 19 August 2022, the BVI Commercial Court (Wallbank J) dismissed an application for the continuation of an ex parte order appointing Provisional Liquidators (“PLs”) over Real Assets (RA) Global Opportunity Fund I Limited (“RAGOF”), acceded to an application for the discharge of the PLs and set aside an ex parte order appointing receivers over shares in RAGOF (the receivership order having been part of a two-staged approach to replacing the management of RAGOF). Having found the breaches of the ex parte professional obligations to be “not innocent” and “very serious”, the Court declined to re-grant either of the ex parte orders. A copy of the judgment is available at https://www.eccourts.org/chia-hsing-wang-v-xy-et-al/.
In 2021, an alleged beneficial owner of certain shares in the RAGOF fund, Mr Chia Hsing Wang (also known as Bruno Wang), sought and obtained (stage 1) an order (on an ex parte basis) from the BVI Court appointing receivers over shares in RAGOF, then held by an alleged nominee of Mr Wang, in order that the receivers could then apply (stage 2) for provisional liquidators over RAGOF, claiming (amongst other disputed allegations) that receivership was necessary to prevent that Fund and/or its management shareholder pursuing a forced redemption of Mr Wang’s shares. Mr Wang alleged that the individuals controlling RAGOF were not acting in its best interests and that the appointment of provisional liquidators was necessary for the purpose of maintaining the value of assets of RAGOF before it was placed into liquidation. He also made various allegations about Floreat, a private wealth management group which had provided certain services to Mr Wang and (indirectly) to RAGOF but which was not named as a respondent (the management shareholder which was named as a respondent was owned separately by one of Floreat’s principals). Upon the ex parte application of the receivers, an order was made appointing PLs.
The two-staged approach was described by Mr Wang’s leading counsel as “novel” at the ex parte hearing and was subsequently described by Mr Wang’s representatives as “a novel route for beneficial owners of shares … to access statutory shareholder remedies where those shares are held through nominee structures where those nominees are unwilling / unable to act.”
The duty of full and frank disclosure
It is trite law that that any party applying to the Court ex parte must make full and frank disclosure of all material matters relevant to the decision whether or not to grant the application.
However, the Court did not accept the argument of Mr Wang that he did not have a duty at the receivership application to give full and frank disclosure and make a fair presentation of the intended subsequent PL application (because the PL application would allegedly be subsequent and separate). Where a receivership is to be the first part of a multi or two-part remedy, the Court should be given as full and balanced a view as possible of the merits of both or all parts of the remedy sought. It held in this regard that:
“It is highly artificial and technical for a litigant in Mr Wang’s position to say “Ah ha! The application for the second part of the remedy is not currently before the Court, so I need not address the Court on it. You can ignore that future application for now, and I can be economical with what I have to say about it”. Where, as here, an applicant has made it abundantly clear that he wishes to deploy a double, or multiple-strike strategy using the Court’s weapons, he comes under a duty to give full and frank disclosure and fair presentation of the whole plan.”
Breach of duty at the ex parte receivership hearing
The Judge accepted that Mr Wang had failed to give full and frank disclosure and a fair presentation at the ex parte receivership application, in particular of:
- Alternative remedies to the appointment of receivers and PLs;
- The alleged right of forced redemption; and
- The overall context in which Mr Wang had engaged Floreat to provide him with a financial solution to his liquidity problems caused by overseas court orders restricting access to his or his family’s assets.
Although the Court accepted that it had jurisdiction to make a receivership order, in light of the broad power to appoint receivers under section 24(1) of the Supreme Court Act, it has to be just and convenient to make the appointment. The aspects above were material to the Court’s consideration whether or not to accede to the appointment of receivers, particularly where the appointment of receivers was clearly intended to be the first part of a two-part strike strategy. Had the Court had the fuller picture, it would have been more reluctant to make the receivership order.
The Judge was persuaded that the real reason Mr Wang wanted a receivership was to undo the consequences of his earlier choice to arrange his financial affairs in such a way to have the benefit of assets but not the burden and risks of owning them directly.
The Judge referred to the “artificiality” of the receivership application and to Mr Wang’s “entire scheme” of ex parte litigation stating that:
“the success of the scheme depended on Mr Wang retaining control of the narrative. In my respectful judgment, it was more the desire to do so than any significant risk to assets or destruction of documents which lay behind Mr Wang’s insistence upon proceeding ex parte.”
The Judge stated that it was unusual to think of receivership as a device, rather than as a remedy, and:
“In my respectful judgment, this was not so much of a case of a problem in search of a solution, as a pre-meditated solution in search of a sufficient portrayal of a problem to justify it. Thus the alleged wrongdoing was given a magnified emphasis whilst surrounding circumstances were left out of the picture. This only became apparent to me when Floreat was given an opportunity to put its own side of the matter.”
Breach of duty at the ex parte PL appointment hearing
The ex parte PL hearing took less than 30 minutes, before a different judge, despite voluminous evidence having been filed in support of it (the skeleton argument was some 45 pages). Mr Justice Jack, who had heard the application and granted the order sought, had queried five times whether the matter should really be proceeding on an inter partes basis, and only allowed it to proceed ex parte on the basis of representations from Mr Wang’s leading counsel.
Mr Justice Wallbank stated that it was clear that proceeding ex parte was a vital part of Mr Wang’s strategy and the real reason was not that Floreat would be “tipped off” and would dissipate assets or destroy documents if the matter was heard on notice, but because Mr Wang wanted to present Floreat and its principals with a “fait accompli”. Although it was understandable that leading counsel should strengthen his submissions when faced with resistance, he arguably overstated the facts and omitted to use any of the three and half hours or so that were available to explain the alleged forced redemption and lack of protection points.
Mr Wang’s leading counsel had incorrectly represented that management of RAGOF, which he said included Floreat, had (1) an absolute right to redeem the RAGOF shares and (2) therefore Mr Wang had no protection. The Judge accepted that both parts of this explanation were wrong, were put in far stronger terms at stage 2 (the PL application) than at stage 1 (the receivership application), lacked any meaningful attempt to explain or support the arguments, were not accompanied by any meaningful attempt to lay out the contrary position, and were the key points which had persuaded the judge to consider the PL application on an ex parte basis.
The Judge rejected arguments that submissions concerning the right of redemption were only relevant to the question of whether the hearing should be inter partes or ex parte as the judge was otherwise satisfied that he should make the PL order on the substantive merits of the application. That argument assumed that an inter partes hearing would have made no difference to the order being granted, and it was obvious that it was precisely because an inter partes hearing might make a difference that Mr Justice Jack had been desirous of having one. In obtaining an ex parte hearing by means of those representations, the management shareholder had been deprived of a fundamental right of natural justice – to put their side of the matter. Furthermore, the representations did not merely go to a procedural issue; the submission that Mr Wang had no protection fed into his narrative that it would be necessary to appointment provisional liquidators.
Consequences of breaching the duty of full and frank disclosure
If the interests of justice warrant it, an order set aside for breach of the duty of full and frank disclosure can be re-granted or continued if the potential injustice and/or harm in revoking the protective order is clear. Equally, however, it would only be in exceptional cases that a Court would not discharge an order where there had been deliberate non-disclosure or misrepresentation.
Having found that there were breaches of the duty of full and frank disclosure, the Court must therefore consider whether those breaches were innocent or not.
In the case of the PL appointment hearing (which took less than 30 minutes), the Judge found that the breaches were not innocent and was not persuaded that Mr Justice Jack would have understood what counsel was referring to because he had “read the evidence”. It was not persuasive to say that Justice Jack “well understood” what Mr Wang’s leading counsel would or should have said (but did not say). Nor was Mr Wang’s leading counsel absolved from failing to give full and frank disclosure and making a fair presentation. Mr Wang furthermore failed to establish that the interests of justice reasonably required a regrant.
The Judge found that the breaches of duty were also not innocent in relation to the representations made at the ex parte receivership application. The court had been told, with undue emphasis, that no other viable remedies would avail Mr Wang. That was incorrect (or at least arguably so). Considerable time was spent at the inter partes stage arguing over the availability of alternative remedies, which itself demonstrated that the issue was by no means as clear cut as had been presented at the ex parte hearing. The order should therefore be discharged. The potential availability of other remedies and the unlikelihood of significant asset dissipation further persuaded the Judge that the interests of justice were not likely to be prejudiced by not continuing or regranting the receivership order.
Practitioners and their clients should be mindful of the duty of candour required regarding full and frank disclosure; it is a heavy burden and a high duty. Moreover, it is not enough to include material in a bundle without taking the judge to it. The judge at an ex parte hearing needs to be taken to the material and to be given a fair explanation of what the material contains.
The ex parte PL hearing lasted less than 30 minutes although over three hours of Court time had been available. Parties seeking ex parte relief should avail themselves of as much available Court time as they are offered and should ensure they take the Judge to all relevant material.
Importantly, when an ex parte application is part of a scheme which includes subsequent ex parte applications, practitioners should take great care to give full and frank disclosure of those further applications and not treat those subsequent applications as outwith the scope of disclosure and fair presentation. When the applicant has a two or multi-stage plan in mind, full and frank disclosure should be made at the outset.
Forbes Hare acted for the successful second respondent, Floreat Real Estate (Jersey) Ltd (“FRE Jersey”), in securing the dismissal of the provisional liquidation application, the discharge of the PLs and in setting aside the receivership appointment.
A copy of the judgment is available at https://www.eccourts.org/chia-hsing-wang-v-xy-et-al/.
Mr Wang is seeking to appeal against this outcome. FRE Jersey has applied for certain consequential relief.
William is a litigation partner in Forbes Hare’s BVI office
Sarah is a senior associate in Forbes Hare’s Cayman Islands office