Alipour v Ary
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON |
| Judgment Date | 17 December 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1217-3 |
| Docket Number | 96/0780/B |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 1996 |
[1996] EWCA Civ J1217-3
Lord Justice Mccowan
Lord Justice Peter Gibson
and
Lord Justice Hutchison
96/0780/B
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE KNOX
Royal Courts of Justice
Strand
London WC2
MR V JOFFE (Instructed by Palmer Cowen, London W1X 5AE) appeared on behalf of the Appellant.
MR R KAYE QC (Instructed by Vearle Wasbrough, Bristol BS1 5DS) appeared on behalf of the Respondent.
)
Monday, 17th December 1996
This is the judgment of the court on an appeal by the Petitioner, Mr. Alipour, against the order dated 21 May 1996 of Knox J. whereby he dismissed the petition presented by the Petitioner to wind up U.O.C. Corp ("the Company") and discharged the appointment of a provisional liquidator made by Ferris J. on 19 April 1996. The petition is a contributory's petition, the petitioner claiming to be an allottee of shares in the Company. The Respondents, Mrs. Ary and Mr. Schweininger, who undoubtedly are shareholders in the Company, dispute the Petitioner's locus standi. The Judge decided that that dispute should be determined outside the petition; hence the order which he made.
There is much that is in controversy between the parties as to the true facts, but we must attempt to set out the salient features of the history of the dispute. The Company was incorporated on 28 March 1994 under the International Business Companies Ordinance of the British Virgin Islands as an international business company. Its registered office is in Tortola at the offices of its registered agent, Dantrust Ltd. ("Dantrust"). The Petitioner is an Iranian national and resident. Mrs. Ary was born in Iran and holds an Iranian passport. Mr. Schweininger is a German national and resident. It is the case of the Petitioner that the Company was formed and carried on business as a quasi-partnership between him, Mrs. Ary and Mr. Schweininger, though it was left to Mrs. Ary and Mr. Schweininger to form the Company. Further the Petitioner has never been a director of the Company but Mrs Ary and Mr. Schweininger are directors and, they say, the only directors.
The authorised share capital of the Company is U.S. $30. The Petitioner has what on its face is a share certificate, signed by Mrs. Ary and Mr. Schweininger, sealed with the seal of the Company and dated April 1994 for 10 $1 shares. He claims to have received this from Mrs. Ary. However the share register of the Company shows only two shareholders, Mrs. Ary and Mr. Schweininger, each of whom is registered as holding 15 shares of $1 each. It is the authenticity of the Petitioner's certificate that is at the heart of this dispute.
By a letter dated 26 June 1995 from Mrs. Ary and Mr. Schweininger to the Petitioner, they said that they would give him "a general idea about our partnership since the last two years". They referred to "a promise" by him that he was in a position to obtain oil from the National Iranian Oil Corporation and said: "That was the reason why we three conclude a partnership to set up the U.O.C. Company". They said that they had established branches of the Company in England, Germany, Austria, U.S.A. and the British Virgin Islands and that the starting costs exceeded $1 million, including $430,000 company taxes. They referred to a proposal by the Petitioner to pay a Mr. Saffari $200,000 and commented: "That was not agreed and this is an amount which is bigger than the profit of the partners." They put a proposal to the Petitioner "that each of us partners get $100,000" which with $100,000 to be paid to each of two others, came to $500,000. Each of the Respondents now asserts that the Company and the Petitioner have been working together in a business partnership and Mr. Kaye Q.C. for the Respondents submits that the Petitioner was only a partner in a commercial sense in that he was no more than a commission agent. In the light of the letter of 26 June 1996 we find those assertions and that submission unconvincing. It is clear that in that letter Mrs. Ary and Mr. Schweininger were treating the Petitioner as a partner with them in a partnership between the three of them, concluded to set up the Company, and as entitled to take an equal profit share with each of them.
The authenticity of that letter is not disputed. The authenticity of three other documents is. The first in time is a document dated April 1994, purporting to be from Mrs. Ary and Mr. Schweininger to the Petitioner though given no more precise address than Tehran, and saying that they, as directors of the Company, would collaborate with the Petitioner in partnership on a commission basis, the partnership to be "valid until we decide otherwise". This was exhibited to an Affidavit of 20 May 1996 by Mr. Schweininger. The Petitioner denies seeing the document until it was an exhibit. The second is a document headed "Partnership Resolution" bearing a fax date 1 October 1995 and time (12.28) and a fax number which is that for a property in Dorset, Chaffeymoor Grange ("the Grange"). The Company is the registered owner of the Grange. The Petitioner claims that following the letter of 26 June 1995 he had asked for the documents relating to the costs referred to in that letter, and that he was asked to sign the "Partnership Resolution" in which he would state that he would "give back the shares and the original share certificate" to the Company and which stated "The partnership is herewith officially dissolved". He further claims that he was offered $200,000, but he did not accept the offer. Mr. Schweininger challenges the authenticity of the "Partnership Resolution". He has exhibited a copy of another letter to a business associate which bears the same fax date, time and fax number. It would therefore appear that at least one of the "Partnership Resolution" and the business letter, as a fax of the purported date, time and number, is a forgery. It is of course possible to change the date, time and number on any fax machine, and in the absence of forensic examination of those documents it is impossible to determine which is a forgery.
None of the documents requested by the Petitioner was supplied by the Respondents, despite a letter dated 6 February 1996 to them from the Petitioner's solicitors demanding a proper account. In mid-March 1996 the Petitioner was told by a Mr. Yousefpour, who was described by Mrs. Ary in a letter dated 24 April 1995 as being one of the Company's two "contact persons in Tehran", of a recent telephone conversation with Mrs. Ary. She said to Mr. Yousefpour that it was the Company's intention to seek to remove the Company's assets to another jurisdiction, though she was not specific as to which jurisdiction. She further said to him that the Company would be liquidated in the British Virgin Islands, a new company would be formed to hold the transferred assets and the Grange would be sold. All this is deposed to by Yousefpour in an Affirmation and that evidence has not been challenged by the Respondents.
On 18 April 1996 the Petitioner presented his petition. He claimed that he had been the registered holder of 10 shares in the Company since the end of April 1994, that the Company was a quasi-partnership between him and the Respondents, that the personal relationships of good faith, trust and confidence underlying the Company had irrevocably broken down, that the Company was solvent and that it was just and equitable that the Company be wound up. On 19 April Ferris J. on the Petitioner's ex parte application appointed an insolvency practitioner, Mr. Oldham, as provisional liquidator with extended powers. No doubt it was the risk of the dissipation of the assets particularly in the light of the evidence of Mr. Yousefpour that led Ferris J. to make that order.
On 24 April the order was served on Mr. Schweininger at the Grange by the Provisional Liquidator and his solicitor. It was the duty of Mr. Schweininger as a director of the Company to cooperate with the Provisional Liquidator by giving him such information concerning the Company and its business dealings, affairs or property as the Provisional Liquidator might reasonably require (s.235 Insolvency Act 1986). There is a revealing attendance note taken by the solicitor to the Provisional Liquidator of what Mr. Schweininger said, first before his solicitor (Mr. Baker) arrived and subsequently in Mr. Baker's presence, which the Provisional Liquidator has produced in evidence in an Affidavit sworn on 10 May. Mr. Schweininger made allegations to the Provisional Liquidator that the Petitioner was not a shareholder in the Company. When shown a copy of the Petitioner's share certificate, Mr. Schweininger said that he had not signed it, and that it was a forgery.
The Provisional Liquidator, in the light of those allegations relating to the locus standi of the Petitioner, very properly sought the directions of the court. His application came before the Judge on 21 May. Only the day before did Mr. Schweininger swear and serve the Affidavit to which we have already made reference, and Mrs. Ary did likewise that day. Included in Mr. Schweininger's Affidavit and exhibits was evidence from Dantrust as to the contents of the share register, and copies of two share certificates showing each of Mrs. Ary and Mr. Schweininger as owning 15 shares in the Company. Mr. Schweininger pointed to differences between the Petitioner's share certificate and those share certificates. Each of the Respondents said that there were only 30 shares in the Company and that the Respondents held all of them. Each said that no shares had...
To continue reading
Request your trial
- Alstom Power Ltd v Somi Impianti S.R.L.
-
Re Parmalat Capital Fin Ltd
...Q.C. and Ms. S. Corbett for the respondents; C.G. Quin, Q.C. for the Bank of America (a creditor). Cases cited: (1) Alipour v. Ary, [1997] 1 W.L.R. 534; [1997] BCC 377, applied. (2) Arrows Ltd., Re, [1992] BCC 121, followed. (3) Bateman Television Ltd. v. Coleridge Fin. Co. Ltd., [1971] NZL......
-
Banco Economico v Allied Leasing
...L. DaCosta for the respondent; S. Hall-Jones, Senior Crown Counsel, for the Monetary Authority. Cases cited: (1) Alipour v. AryWLR, [1997] 1 W.L.R. 534; sub nom. Re U.O.C. Corp., Alipour v. Ary, [1997] BCC 377, applied. (2) Claybridge Shipping Co. S.A., Re, [1997] 1 BCLC 572; [1981] Com. L.......
-
Re Cybervest Fund
...Cases cited: (1) Aeronave SpA. v. Westland Charters Ltd., [1971] 1 W.L.R. 1445; [1971] 3 All E.R. 1074, applied. (2) Alipour v. Ary, [1997] 1 W.L.R. 534, followed. (3) Apollinaris Co.”s Trade Mark, In re, [1891] 1 Ch. 1, followed. (4) Banco Economico S.A. v. Allied Leasing & Fin. Corp., 199......
-
WINDING UP PETITIONS FOUNDED ON A BONA FIDE DISPUTED DEBT
...(No 006685 of 1996)[1997] 1 BCLC 639 at 643a and 644a; Re Richbell Strategic Holdings Ltd[1997] 2 BCLC 429 at 435a—b. 9 Alipour v Ary [1997] 1 WLR 534 at 541F—H. See also Re Bond Corporation Holdings Ltd(1990) 1 WAR 465 at 472—473. 10 Medi Services International Pty Ltd v Jarson Pty Ltd, su......
-
Insolvency Law
...Re Welsh Brick Industries have expressed a similar sentiment (see Re Claybridge Shipping Co SA[1997] 1 BCLC 572 at 575, Alipour v Ary[1997] 1 WLR 534 at 542 and Re a Company (No 006685 of 1996)[1997] 1 BCLC 639 at 644). However, there are Australian authorities opining that the burden to es......
-
Insolvency Law
...the company will not be able to establish a substantial dispute (Re Claybridge Shipping Co SA[1997] 1 BCLC 572 at 575; Alipour v Ary[1997] 1 WLR 534 at 542). 14.86 On the facts of Wong Kwei Cheong, the statutory demand had been issued by the creditor against the debtor in respect of the lat......