Ramesh Philippe Dusoruth v Orca Finance UK Ltd ((in Liquidation))
| Jurisdiction | England & Wales |
| Judge | Mullen |
| Judgment Date | 16 September 2022 |
| Neutral Citation | [2022] EWHC 2346 (Ch) |
| Docket Number | Case No: BR-2020-000490 |
| Court | Chancery Division |
In the Matter of Ramesh Philippe Dusoruth (a bankrupt)
And in the Matter of the Insolvency Act 1986
[2022] EWHC 2346 (Ch)
ICC JUDGE Mullen
Case No: BR-2020-000490
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)
Royal Courts of Justice
Rolls Building
Fetter Lane
London EC4A 1NL
Rory Brown (instructed by RIAA Barker Gillette) for the Applicant
Lance Ashworth KC and Wilson Leung (instructed by Stephenson Harwood LLP) for the Respondent
Hearing dates: 27 th to 29 th April 2022
Approved Judgment
I direct that this judgment may be treated as authentic. The hand-down time is 10:30am
ICC JUDGE Mullen
Mr Dusoruth's application to annul his bankruptcy
Mr Ramesh Dusoruth was adjudged bankrupt on 16 th November 2020 on a petition presented to this court by Orca Finance UK Limited (in liquidation) (“Orca UK”) on 1 st October 2020. On 7 th June 2021 Mr Dusoruth applied to annul that bankruptcy order under section 282(1)(a) of the Insolvency Act 1986 (“IA 1986”), that is to say on the ground that it ought not to have been made (“the Annulment Application”). The application was supported by a statement from Mr Dusoruth's solicitor, Mr Mohammed Qaiser Khanzada, of the same date and that statement was later supplemented by a statement from Mr Dusoruth himself, dated 3 rd August 2021. The Annulment Application also sought to set aide the order dated 12 th October 2020 permitting the petition and associated documents to be served on Mr Dusoruth out of the jurisdiction (“the Service Out Order”) or permission to appeal that order.
Mr Dusoruth's case, as it appears from those documents, is that, first, the debts set out in the petition were not for liquidated sums. They were thus incapable of founding a bankruptcy petition so that the petition and the statutory demand that preceded it were, as the Annulment Application puts it, “irredeemably defective”. Secondly, he says that his centre of main interests (“COMI”) for the purposes of the Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (“the recast EU Regulation”) was not in England and Wales at the relevant time and the court had no jurisdiction to make a bankruptcy order in respect of him. Finally, he contends that the petition debts are disputed. The reason that he did not raise any of these issues in advance of the bankruptcy order being made was because he had not been aware of the proceedings until he was informed of the making of the order itself on or about 16 th December 2020.
Orca UK's evidence in answer to the Annulment Application is contained in a statement from Detective Inspector Paul Ridley of the Bermuda Police Service, dated 12 th November 2021, and a statement from Mr Paul Appleton, the joint liquidator of Orca UK and joint trustee in bankruptcy of Mr Dusoruth, dated 16 th November 2021. Mr Dusoruth at first appeared to intend to reply to those witness statements and his evidence in reply was to have been filed by 26 th October 2021. The parties agreed to vary the directions timetable and Mr Dusoruth then obtained a further extension to file his reply evidence by 7 th December 2021. On 6 th December 2021 he applied for an order for extending time for filing that reply evidence to 7 th February 2022 but abandoned that application and did not file any further evidence.
On 1 st February 2022, Orca UK made an application for an order that Mr Dusoruth attend the hearing of the Annulment Application to be cross-examined. That was granted by Deputy ICC Judge Agnello QC on 21 st April 2022, though she directed that the scope of cross-examination, in particular whether it be limited to questions relating to Mr Dusoruth's COMI or extend beyond that issue to explore Mr Dusoruth's contentions as to the dispute as to the debts, should be determined at the hearing of the Annulment Application.
Mr Dusoruth did indeed attend the hearing for cross-examination but, with my permission, by video link rather than in person. He is currently in the Netherlands having been convicted of an offence of “bankruptcy fraud” by the Overijssel Criminal District Court on 12 th October 2021. He was sentenced to 30 months in prison, which was extinguished by time already served. Mr Dusoruth contends that this conviction is subject to appeal and it seems that his acquittal on further fraud and forgery charges is subject to an appeal by the public prosecutor. He is required to remain in the Netherlands. Further, Mr Dusoruth was, until 8 th March 2019, on bail in Bermuda having been charged with a number of offences by the Bermuda Monetary Authority (“the BMA”) but left that jurisdiction in the rather extraordinary circumstances that I shall describe. As far as the Bermudan authorities are concerned he absconded in breach of his bail conditions, with the result that he is the subject of an Interpol Red Notice. The effect of all that is that if he were to leave the Netherlands he would not only be in breach of his bail conditions in the Netherlands but also be liable to arrest and extradition to Bermuda.
The final point I should note in relation to the progress of the Annulment Application is that, on the day after the hearing before Deputy ICC Judge Agnello QC, leading counsel for Orca UK who had been retained for the substantive hearing before me and had, I think, represented it at all previous hearings, had to withdraw unexpectedly for entirely understandable and unavoidable personal reasons. With only a matter of days to go before the hearing of the Annulment Application, the solicitors for Orca UK asked Mr Dusoruth's representatives to agree to an adjournment. That request was refused. Mr Lance Ashworth KC and Mr Wilson Leung of counsel were therefore instructed at short notice and were able to appear for Orca UK at the hearing, as well as to provide a full skeleton argument in time for the pre-hearing reading day. I am very grateful to both of them for enabling the hearing to be effective.
Background to the petition
Mr Dusoruth's business interests are wide-ranging. He holds 99.9% of the share capital of Les Petits Fourmies (“LPF”), a company registered in Malta, and is acknowledged in its filings in that jurisdiction as its ultimate beneficial owner. LPF is the owner of the issued share capital in –
a) St George's Limited (“St George's”), registered in Bermuda, of which Mr Dusoruth was chairman and a director, along with a Mr Vincent Mast and a corporate director called Harbour Administration (BVI) Limited.
b) Orca UK, registered in England and Wales, of which Mr Dusoruth was sole director as at the date of its liquidation, having been appointed on 16 th June 2016. Its previous two directors, Mr Benjamin Colas and Ms Carole Pevny, resigned in 2016.
c) Marsh Wall 30 Limited (“Marsh Wall UK”), registered in England and Wales, of which Mr Dusoruth, Orca UK and, from 23 rd May 2019, a Mr Quamelle Green were directors.
d) PS66 Ltd, PS66B Ltd, and PS66G Ltd, (“the Pont Street Companies”), all registered in England, of which Mr Dusoruth and Orca UK were among the directors.
e) Lioncross Limited (“Lioncross”), incorporated in Cyprus but, according to Mr Dusoruth, operated from and domiciled in Malta.
f) MW30 Limited (“Marsh Wall Jersey”), incorporated in Jersey.
g) PSSI Limited (“PSSI”), incorporated in Malta.
It is not in dispute that all of these companies are ultimately owned by Mr Dusoruth by reason of his shareholding in LPF. Mr Dusoruth is also a director and the ultimate beneficial owner of Brazz Services NV (“Brazz”), a company incorporated under the laws of Belgium in 2003 which operated a consultancy business. Other companies are mentioned in his evidence with similar names to Brazz or Orca.
Marsh Wall Jersey and PSSI respectively held property at 30 Marsh Wall, London E14 9FY (“the Marsh Wall Property”) and four apartments that formed part of a house at 66/66a Pont Street, London SW1X 0AE (“the Pont Street Properties”) until 2017, when the properties were “on-shored” by the transfer of the Marsh Wall Property into the ownership of Marsh Wall UK and the Pont Street Properties into the ownership of the Pont Street Companies. These properties have since been sold by receivers. The sale of the Pont Street Properties completed on 13 th December 2019 for £9.5 million and the Marsh Wall Property on 20 th December 2019 for £26.65 million.
Orca UK's winding up happened as follows. On 7 th March 2019, Rachelle Frisby and John Johnson were appointed as joint provisional liquidators of St George's by the Supreme Court of Bermuda. The evidence of Ms Frisby, dated 28 th June 2019, in support of an application for the appointment of provisional liquidators in respect of Orca UK sets out how that came about. In summary, it is alleged that St George's procured investments from wealthy individuals, which investments were transferred to other companies controlled by Mr Dusoruth by way of unsecured loans. These loans are thought by the Bermudan joint provisional liquidators to have been used to repay lending incurred in relation to the purchase of the Marsh Wall Property and the Pont Street Properties. St George's auditors raised concerns as to the recoverability of these loans in 2017 and, at around this time or in 2018, the BMA became involved. Mr Dusoruth and his co-director Mr Vincent Mast, were arrested on 15 th November 2018 and charged with various offences, including in Mr Dusoruth's case, providing misleading information to the BMA.
The appointment of Ms Frisby and Mr Johnson as joint provisional liquidators of St George's followed the presentation on 27 th February 2019 of a petition to wind up St George's by Harbour International...
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