Antoni v Antoni
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scott of Foscote |
| Judgment Date | 26 February 2007 |
| Neutral Citation | [2007] UKPC 10 |
| Court | Privy Council |
| Docket Number | Appeal No 1 of 2006 |
| Date | 26 February 2007 |
[2007] UKPC 10
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
[Delivered by Lord Scott of Foscote]
This appeal to the Privy Council, and indeed also the appeal to the Court of Appeal of the Commonwealth of the Bahamas, has resulted from the failure of the trial judge, Lyons J, to apply the presumption of advancement. In order to explain the relevance and importance of the presumption to the issues in this litigation it is necessary to describe the background facts.
The Facts
Dr Amado Antoni was a well-known medical practitioner practising and residing in Freeport. He and his first wife, Margo, had three children, namely, Kirk Antoni, Melanie Malone and Blair Antoni. They are the above-named respondents. Besides carrying on his medical practice Dr Antoni invested in property. He did so not in his own name but via a company, Peaches Ltd. Peaches Ltd is the second above-named appellant.
Peaches Ltd was incorporated on 17 February 1969 with an authorised share capital of $1,000 divided into 1000 shares of $1 each. Five fully paid-up shares were issued. For the period from incorporation until 15 January 1991 it is common ground that each of the five issued shares was held by the named shareholder for Dr Antoni as the beneficial owner. The named shareholders were partners of or employees in, or otherwise associated in some way with, a Bahamian law firm chosen for the purpose by Dr Antoni. From 14 January 1983 to 15 January 1991 Mr David C. Thompson was one of the nominee shareholders. He was an attorney in full time practice first as a partner in the firm Carson Lawson and, from May 1985, as a partner in Callenders & Co. in Freeport. He and each of the other nominee shareholders signed a declaration of trust in favour of Dr Antoni. The evidence shows that from at least 1979 the directors of the company included Dr Antoni as President and Treasurer, Kirk Antoni as Vice-President and Secretary and Melanie Malone and her husband Donald Malone. Peaches Ltd was, therefore, a company wholly owned by Dr Antoni and, under his control, was a family managed company.
On 15 January 1991 there was a meeting of the directors of Peaches Ltd. A number of resolutions highly relevant to the issues in this case were passed. Each resolution was signed by Dr Antoni, Kirk Antoni, Melanie Malone and Donald Malone.
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(1) There was a resolution that Dr Antoni's resignation as Treasurer be accepted and that Kirk Antoni be appointed Treasurer in his place.
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(2) There was a resolution that the resignation of Mr Thompson as Assistant Secretary be accepted and that Melanie Malone be appointed Assistant Secretary in his place.
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(3) There was a resolution approving the transfer of the five shares held by Mr Thompson and the other four nominee shareholders. The transferees were Dr Antoni, Kirk Antoni, Melanie Malone, Donald Malone and Donna Long (of whom more later).
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(4) There was a resolution that the share certificates relating to the five shares that had been transferred be cancelled and that in lieu thereof new share certificates be issued to the five transferees.
Donna Long, one of the new shareholders, was a legal secretary in the Freeport offices of McKinney, Bancroft & Hughes, a Bahamian law firm which Kirk Antoni, who had recently been called to the Bar, had joined. Donna Long signed a declaration of trust, in the same form as the declarations that had been signed by Mr Thompson and the other nominee shareholders, declaring that the beneficial owner of the share in the company that had been transferred to her was Blair Antoni (the 3rd above named respondent). Her signature on the declaration of trust was witnessed but the witness' signature is an indecipherable scrawl and there was no evidence identifying the witness.
Donald Malone, another of the new shareholders, signed a similar declaration of trust, also dated 15 January 1991, declaring that the beneficial owner of the share that had been transferred to him was Dr Antoni. His (Donald Malone's) signature was witnessed by Mr Glinton, counsel before their Lordships for the 1st above-named appellant Mrs Lena Antoni. There is undisputed, and indisputable, evidence that the declaration was not signed on 15 January 1991 but was signed on 24 November 1995 some 2½ years after Dr Antoni's death. The minutes of a general meeting of the company held on 24 November 1995 record that
"Mr Donald F. Malone was asked by the Chairman [Kirk Antoni] to sign, and subsequently did sign, the Declaration of Trust in favour of the late [Dr Antoni] with respect to Share Certificate number 4 of the Company held in the name of Donald F. Malone. Mr Malone was also asked by the Chairman to sign and did sign the Share Certificate. Mr Malone's signatures were witnessed by Mr Glinton."
Mr Glinton had been present at the meeting as counsel for Mrs Lena Antoni.
Dr Antoni and his wife, Margo, had separated in 1978 and concluded a formal Separation Agreement in May 1980. She died on 4 January 1991. In 1990 Dr Antoni had met the first Appellant. They married on 19 January 1992. Dr Antoni had made a Will on 1 October 1990 appointing Kirk Antoni his executor and leaving the whole of his estate to his three children but by a later Will, dated 15 December 1992, he left his whole estate to his new wife. Dr Antoni died on 5 April 1993 and on 5 January 1994 Letters of Administration with the 1992 Will annexed were granted to Mrs Lena Antoni.
In the period between 15 January 1991 and Dr Antoni's death on 5 April 1993 the company continued to be managed by Dr Antoni and the family directors. At the company's Annual General Meetings on 15 January 1991, 15 January 1992 and on 15 January 1993 all the five shareholders were present and on each occasion a resolution was passed
"… that all acts performed prior to the meeting by the Directors and officers of the Company be and hereby are confirmed, ratified and approved."
The minutes of these meetings were signed by all five shareholders. They included, of course, Dr Antoni, the President of the company. These resolutions were apt to validate, if validation had been necessary, the transfers of the five issued shares to the five new shareholders.
The death of Dr Antoni inevitably led to the involvement of Mrs Lena Antoni in the affairs of the company. She was, on any view, beneficially entitled to two of the five issued shares, namely the share standing in the name of Dr Antoni and the share standing in the name of Donald Malone. An Extraordinary General Meeting was held on 8 September 1993 at which Mrs Lena Antoni was elected a director of the company, the others being Donald Malone (who was elected President), Kirk Antoni and Melanie Malone. At this stage there does not appear to have been any dissension between Mrs Lena Antoni on the one hand and the three Antoni children on the other hand about the beneficial entitlement of the three children to the other three shares in the company. The minutes of the company's Annual General Meeting held on 16 January 1995, at which all five shareholders were present, does not disclose any discordant note. A resolution was passed confirming, ratifying and approving all acts of the directors prior to the meeting. Each shareholder, including Mrs Lena Antoni, signed the minutes.
Their Lordships have already referred (in paragraph 6 above) to the meeting of the company held on 24 November 1995. The meeting is described as the company's Annual General Meeting although the AGM for 1995 had taken place on 16 January 1995. The five shareholders listed as being present included Blair Antoni but did not include Donna Long. This was the occasion on which Donald Malone signed the declaration of trust in favour of Dr Antoni (see para 6 above). It may be that prior to this meeting the share held by Donna Long had been transferred to Blair Antoni, the beneficiary named in the declaration of trust dated 15 January 1991 that she had signed. Immediately following the meeting on 24 November 1995 a directors' meeting was held. It was attended by the company's four directors, namely Mrs Lena Antoni and the three Antoni children. The minutes of this meeting include the following item:-
"The Directors agreed to issue the unissued shares in the Company so that the shareholding will be as follows:
Lena Antoni
400 shares
Kirk Antoni
200 shares
Melanie M. Antoni
200 shares
A Blair Antoni
200 shares"
Share certificates, dated 24 November 1995, were issued accordingly for 399, 199, 199, and 199 shares to the above named shareholders. With the shares that they already held their respective shareholdings were brought up to the required 400, 200, 200 and 200 level. The 995 newly issued shares, like the original five shares, were issued as fully paid-up.
However, by a letter dated 7 November 1996 from Mr Glinton, who had become Mrs Lena Antoni's lawyer about a year previously, the three Antoni children were
"… put on notice by Mrs Antoni that she intends, in the name of the Company, to challenge the authenticity of those resolutions which purport to authorise the vesting of ownership of the various shares in Mr Kirk Antoni, Mr Anthony Blair Antoni and Mrs Melanie Malone, other than as nominees of Dr [Antoni]."
The Litigation
The letter referred to in the preceding paragraph was followed by some further inconclusive correspondence between Kirk Antoni and Mr Glinton and the litigation was commenced by an Originating Summons dated 23 April 1998 issued by Mr Glinton, purporting to act for Mrs Lena Antoni and...
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