Alipour v UOC Corporation
| Jurisdiction | England & Wales |
| Judge | DAVID DONALDSON QC |
| Judgment Date | 25 April 2002 |
| Neutral Citation | [2002] EWHC 937 (Ch) |
| Date | 25 April 2002 |
| Court | Chancery Division |
| Docket Number | NO: 2180 of 1996 |
[2002] EWHC 937 (Ch)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2
David Donaldson QC
NO: 2180 of 1996
CHANCERY DIVISION
MR JAMES BEHRENS on behalf of the Petitioner
MR MICHAEL ROLLASON appeared on behalf of the Respondents
The proceedings before me consist of a petition brought by the petitioner as an alleged contributory to wind-up the first respondent company, which I will call UOC, on the grounds that it would be just and equitable to do so. The petition was originally presented on 18th April 1996. UOC is a company incorporated in 1994 in the British Virgin Islands ("BVI") under the Business Companies Ordinance (No 8 of 1984) as amended. An international business company in terms of that ordinance is, put shortly, a company that does not carry on business with persons resident in the BVI or own real property situate in that jurisdiction.
I have before me an application by the second and third respondents under CPR 3.4 and/or Part 24.2 and/or the inherent jurisdiction of the court to strike out or grant summary judgment dismissing this petition on the grounds that the petitioner has no locus standi to bring it, that is to say that he is not in fact a contributory. This is an objection which the respondents raised at the outset of these proceedings. They then argued that the mere fact that a petitioner's standing as a contributory is the subject of bona fide dispute should lead the court to dismiss the petition by analogy with the position where the debt relied upon by a petitioning creditor is disputed in good faith. That argument was accepted by Knox J in dismissing the petition on 21st May 1996. His order was, however, reversed on appeal on 17th December 1996. In its judgment reported at [1997]] 1 WLR 534 the Court of Appeal held that the analogy with a disputed debt was not complete and that the appropriate mode of proceeding would depend on all the facts. In the present case, where assets alleged to belong to the company were present in England and frozen by the appointment of a provisional liquidator, it would be wrong, so the court held, to deprive the petitioner of this advantage by dismissing the petition and forcing him first to litigate outside the petition the question of whether he was a contributory.
In his Judgment case Peter Gibson LJ set out the salient features of the history of the dispute in terms which I gratefully adopt:
"The company was incorporated on 28 March 1994 under the International Business Companies Ordnance (No 8 of 1984) 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 US$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 ten $1 shares. He claims to have received this from Mrs Ary. However the share register of the company shows only two shareholders, 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 UOC company.' They said that they had established branches of the company in England, Germany, Austria, USA and the British Virgin Islands and that the starting costs exceeded £1m, 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 directors now asserts that the company and the petitioner have been working together in a business partnership and Mr Kaye for the directors 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 pm 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 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 directors, 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 the company's intention to seek to remove the company's was 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 Mr Yousefpour in an affirmation and that
evidence has not been challenged by the directors."
In support of his standing the petitioner relied on a share certificate in the following terms:
"SHARE CERTIFICATE
"CERTIFICATE NUMBER 003… NUMBER OF SHARES 10…
Incorporated under the Laws of the
Territory the British Virgin Islands.
NOMINAL CAPITAL $ 30. DIVIDED INTO 30
SHARES OF PAR VALUE US $ 1.00 EACH
THIS IS TO CERTIFY THAT GOLAM REZA ALI POUR (PASS No 5122728) …
Of…U.O.C. CORP…. is the registered holder
of10shares of US $ 1.00…each
numbered—-1–10—- inclusive in the above named Company, subject to the Memorandum and Articles of Association of the said Company.
Dated this …… day of April 1994."
Then two signatures appear, one as director, which is a signature that appears to be that of the third defendant, and then a further signature below that above the title "Director/Secretary", which appears to be that of the second defendant.
Below it appears a statement that
"no transfer of the above mentioned shares will be registered until the Certificate has been deposited of the office of the Company."
According to the petitioner he received this certificate in the following circumstances, which are set out in trial bundle 3 page 321:
"4. I refer to paragraphs 5, 6, 7, 10 and 25 of Mr of Mr Evans' second affidavit sworn on 18th April 1996. In doing so, I must correct paragraph 10 of that affidavit, which states that 'it was not until April 1995 that [I] obtained sight of the documents relating to the incorporation of [U.O.C.]'. As I will explain below, I was first informed in April 1994 by Mrs Ary that she was holding a share certificate in my name together with the Memorandum and Articles of Association, and that these were delivered by...
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