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    Home » Judgments » Court Of Appeal Judgments » America 2030 Capital Limited v Sunpower Business Group Pte Ltd

    THE EASTERN CARIBBEAN SUPREME COURT

    IN THE COURT OF APPEAL

     

    SAINT CHRISTOPHER AND NEVIS

    SKBHCVAP2020/0015

    BETWEEN:

     

    [1] AMERICA 2030 CAPITAL LIMITED

    [2] MARK SIMON BENTLEY (aka VAL SKLAROV)

    Applicants

    and

    [1] SUNPOWER BUSINESS GROUP PTE LTD

    [2] TOURNAN TRADING PTE LTD

    Respondents

    SKBHCVAP2020/0016

    BETWEEN:

    AMERICA 2030 CAPITAL LIMITED

    Applicant

    and

    [1] SUNPOWER BUSINESS GROUP PTE LTD

    [2] TOURNAN TRADING PTE LTD

    [3] GUO HONG XIN

    [4] MA MING

    Respondents

    Before
    :

    The Hon. Dame Janice M. Pereira, DBE Chief Justice

    The Hon. Mde. Gertel Thom Justice of Appeal

    The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.]

    Appearances:

    Ms. M. Angela Cozier for the Applicants

    Mr. Nicholas Peacock, QC, with him, Ms. Elizabeth Harper and Ms. Michelle
    Slack instructed by Ms. Martha Ramthahal for the Respondents

    ______________________________

    2020: October 26, 30.

    ______________________________


    Application to discharge order of single judge of Court of Appeal –
    Order of single judge dismissing applications for leave to appeal
    having been filed out of time – Applications for extension of time –
    Principles guiding grant of extension of time – Approach of appellate
    court to exercise of case management discretion of lower court judge

     

    ORAL JUDGMENT

    [1] PEREIRA CJ: There are in essence three applications
    before the Court for determination, arising out of the two matters
    intituled as appeals numbered SKBHCVAP2020/0015 and SKBHCVAP2020/0016. The
    applications raise similar issues arising out of similar applications made
    in the claims below. The claims in the court below are claims numbered NEVHCVAP2019/023 and NEVHCVAP2019/0141. Claim
    NEVHCVAP2019/023 has been commonly referred to as the ‘Fixed Date claim’
    (FDC) and was the claim filed first in time. Claim NEVHCVAP2019/0141
    commonly called ‘the Fraud Claim’ was filed later. For convenience only,
    they will be referred to as the Fixed Date Claim (FDC) and the Fraud Claim.
    Central to the FDC and the Fraud Claim which involve similar or related
    parties, are stock loan agreements and amendments thereto in respect of the
    arbitration agreement contained therein. The applications before this Court
    are for:

    (a) the discharge of the orders of a single judge of this Court dismissing
    applications for leave to appeal;

    (b) extensions of time to seek leave to appeal; and

    (c) in respect of the Fraud Claim only, an interim stay of the proceedings
    below pending the determination of the proposed appeal.

     

    [2] By way of background summary, for placing the matters in context, in
    February 2019, the respondents in appeal SKBHCVAP2020/0016 namely, Sunpower Business
    Group PTE Limited (“Sunpower”), Tournan Trading PTE Limited (“Tournan”),
    Guo Hong Xin and Ma Ming filed the FDC in the Nevis High Court against
    America 2030 Capital Limited (“America 2030”), and Ms. Karen Hill Hector,
    the arbitrator purportedly appointed under the arbitration agreement in the
    stock loan agreement as amended. An interim injunction was also sought
    restraining the commencement of arbitration on the basis that arbitration
    had not been validly commenced, as well as for the removal of Ms. Karen
    Hill Hector as arbitrator on the basis of apparent bias. This application
    was supported by the affidavit evidence of Guo Hong Xin, director and
    beneficial owner of Sunpower, which was said to be also in support of the
    FDC. It was accepted that, under the stock loan agreement as amended, the
    Nevis High Court is the supervisory court for the purposes of the
    arbitration clause as amended. The injunction was granted and remains in
    place.

    [3] Case management hearings were undertaken and some 6 issues were
    eventually identified for determination at trial of the FDC, which was
    listed to take place around 17th December 2019.

    [4] On 5th December 2019, the respondents in appeal
    SKBHCVAP2020/0015 namely, Sunpower and Tournan, commenced the Fraud Claim
    against America 2030, Mr. Mark Simon Bentley (“Mr. Sklarov”) and the
    stockholder/broker, Weiser Global Capital Markets Ltd. (formerly known as
    Weiser Asset Management Ltd.) (“Weiser”) seeking, among other relief,
    recission of the stock loan agreement, including the arbitration agreement
    as well as for tracing orders to discover the whereabouts of the Sunpower
    shares or stock which had been pledged as security under the stock loan
    agreement, in circumstances where they assert no loans had in fact been
    provided to the respondents despite the deposit of their stocks. They also
    sought damages. The respondents considered that they were the victims of a
    stock loan fraud scheme by America 2030 and its guiding mind, Mr. Sklarov,
    assisted by Weiser, through the use of a web of various corporate entities.
    They alleged that, by December 2019, they had uncovered evidence which they
    believed showed that they had been the victims of a fraud.

    [5] On 6th December 2019, a worldwide freezing order was granted
    against America 2030 and Mr. Sklarov and a preservation order was granted
    against Weiser, prohibiting it from disposing of or diminishing the value
    of the Sunpower shares held by it or any proceeds of sale thereof.
    Underpinning the freezing order, were orders for disclosure of assets and
    for information relative to the stock. There has been no compliance with
    these orders to date and these appear to have been simply ignored. The
    respondents have not brought proceedings for contempt as they consider
    doing so would be pointless as no assets of the applicants appear to be
    situate in the State of Saint Kitts and Nevis.

    [6] The applicants failed to file any defences to the Fraud Claim within
    the time limited and default judgment was eventually entered against them.

    [7] On 3rd Feburary 2020, America 2030 issued an application to
    strike out the FDC alleging in general an abuse of process. Its challenge
    may be condensed as follows:

    (a) various breaches of the Civil Procedure Rules 2000
    (CPR), in particular, CPR 8.1 (as to form) and CPR 30 as to portions being
    scandalous and irrelevant;

    (b) that the FDC was barred by res judicata or issue or party estoppel on
    the basis that the Singapore High Court had determined the issue of
    arbitration in Nevis as between the same parties; and

    (c) that the FDC failed to disclose any reasonable ground for bringing the
    claim.

    [8] In respect of the Fraud Claim, America 2030, Mr. Sklarov and Weiser
    asserted in the main that:

    (a) the claim was in breach of the CPR as it sought to re-litigate an issue
    namely, jurisdiction to determine the issue of breach of contract and the
    issue of arbitration such claim having been stayed by the Singapore High
    Court (the res judicata/issue estoppel point); and

    (b) the statement of claim was prolix, scandalous and portions thereof
    irrelevant.

    [9] The learned judge refused the strike out applications. In his written
    reasons, he referred to the parties in the Singapore proceedings and stated
    at paragraph 10 that neither Mr. Sklarov or Weiser were parties to the
    Singapore proceedings. They are however parties to the Fraud Claim. The
    trial judge accepted that the Singapore court was made aware of the Nevis
    High Court proceedings by way of the FDC by America 2030. He also accepted
    that Mr. Sklarov’s evidence before the Singapore court pointed out that no
    relief was being sought there rendering the stock loan agreement null and
    void. The learned judge further opined that the issues raised in the FDC
    “especially as it relates to the impartiality of the arbitrator and the
    process in general, were not before the court in Singapore”. The Singapore
    court granted a stay of Sunpower’s claim pursuant to section 6 of the
    International Arbitration Act of Singapore. No stay was granted in respect
    of the claims brought by Ma Ming and Mr. Guo Hong Xin as they were not
    parties to the stock loan agreement.

    [10] The learned judge dealt with the attacks made on the claims under the
    two broad heads of res judicata/issue estoppel, and whether the claims are
    an abuse of process having regard to the stay granted in respect of
    Sunpower’s claim in Singapore and finally the procedural defects in the
    claims so as to determine whether the nuclear option of striking out the
    claims were warranted.

    [11] In relation to the issue estoppel point, the learned judge concluded
    that no issue estoppel arose in that the stay order did not seek to trouble
    the process in Nevis, the Singapore court being fully aware of the
    proceedings which had been commenced in Nevis. As the learned judge puts it
    at paragraph 38 of his reasons, “[a]ll that was done was to stay
    the Singapore proceedings pending the outcome of the arbitration in Nevis”. He further opined that the Singapore court would have been aware
    of the Nevis court’s supervisory jurisdiction over the arbitration and that
    “the court’s desire to honour arbitration agreements are not designed to
    oust [the court’s] jurisdiction over disputes, but rather…to honour
    contractual arrangements entered into freely by parties”. He
    further found that the stay granted in Singapore was in no way intended to
    take away the jurisdiction of the Nevis court, being the supervisory court,
    to consider the claims made in the FDC to ensure the integrity of the
    arbitral process. He also referred to the fact that the respondents sought
    removal of the arbitrator on the basis of bias and that the Nevis court was
    seized with the power to do so and that the stay of the Singapore
    proceedings did not take away the right to seek that specific relief. He
    concluded that no issue estoppel could arise in such circumstances.

    [12] As it relates to the Fraud Claim, the learned judge concluded that
    although the claim does repeat in some respects the issues of breach of
    contract, they are to a great extent predicated on different issues. In
    essence, that the case was one alleging fraud. He found at paragraph 45 of
    his reasons that “the Fraud case unlike the case in Singapore seeks to
    rescind the agreement altogether rather than enforce it” on the basis of
    fraud and that the respondents were relying on the court’s power contained
    in sections 24(2) and (3) of the 1950 Arbitration Act of the UK which is in
    force in Saint Kitts and Nevis. He concluded at paragraph 53 of his reasons
    that the issues raised in the Fraud Claim were not similar to the issues in
    the Singapore claim, save for the issues relating to breach of contract.
    Even so, he concluded that those issues “had not been fully litigated given
    the fact that the proceedings…[had been] stayed”; the
    parties were not the same; and the issues had not been finally determined
    in Singapore. Accordingly, he found that there was no issue estoppel or res
    judicata barring the Nevis Fraud Claim. The learned judge also found for
    the same reasons that there was no abuse of the court’s process in any way,
    as asserted by the applicants.

    [13] On the procedural issues, the learned judge made plain that form would
    not be permitted to override substance. He found that the allegation that
    the FDC was not supported by affidavit was factually incorrect and
    recounted the steps of the FDC through the case management processes with
    the applicants filing affidavit evidence in response. He was satisfied that
    the applicants were well aware of the case they were called upon to meet.
    As it relates to the Fraud Claim, he found that the assertion that the
    claim was unsubstantiated was without merit, having considered that it was
    unnecessary to duplicate documents earlier exhibited to the affidavit filed
    in the claim in support of the freezing order. He further opined that a
    complaint of lack of information could be remedied by a request for
    information. He accordingly concluded that none of the procedural issues
    raised warranted striking out the claims.

    [14] Finally, on the complaint that no reasonable basis had been shown for
    bringing the claims, the learned judge concluded that the issues identified
    for trial by the case management judge were substantive issues relating to
    the validity of the commencement of the arbitration proceedings; the
    impartiality of the arbitrator and her removal in the FDC; and substantive
    allegations of fraud, and misrepresentation in respect of the Fraud Claim.
    He found the statement of claim to be detailed rather than prolix given the
    peculiar circumstances of the case. Accordingly, the learned judge held
    that the test relating to strike out applications had not been met and
    refused the strike out applications.

    [15] The applicants sought to appeal the dismissal of their strike out
    applications. The leave applications were filed a day out time, on 2 nd July 2020. The applicants must be taken to have been aware of
    this given their explanation of electrical and associated internet problems
    experienced by them when they sought to file on the last day limited for
    making the application under the CPR. No applications to extend time were
    made. A single judge of this Court, on noting that the leave applications
    were filed out of time dismissed the applications for that reason on 28 th July 2020.

    [16] The applicants then made the present rolled up applications seeking:
    to discharge the order of the single judge primarily on the basis that she
    had wrongly exercised her discretion in dismissing the leave applications;
    an extension of time to make the leave applications and for leave; and for
    a stay of proceedings in the Fraud Claim. They contend that the delay in
    making the applications was not inordinate; that they had provided a good
    explanation for the delay and importantly that their appeals had realistic
    prospects of success.

    [17] It is worth stating that the applications to discharge the single
    judge’s order has itself been made out of time with no extension of time
    being sought. That said, we are of the view that in any event, there is no
    basis for discharging the single judge’s order. As the leave applications
    were filed out of time and there being no applications to extend time, the
    learned judge quite rightly dismissed the applications as being not
    properly before the Court. This did not engage the exercise of a
    discretion. Rather, it was simply a recognition that there was no leave
    application properly before the Court.

     

    The Application to Extend Time to Seek Leave to Appeal

    [18] This brings us to a consideration of the application for extension of
    time. Notwithstanding the sheer volume and multiplicity of documents this
    matter has unnecessarily generated, the principles guiding the exercise of
    the discretion are well settled. The Court will have regard to all the
    circumstances of the case including the length of the delay; whether there
    is a good explanation for it; the prejudice and whether the proposed appeal
    has realistic prospects of success. It is the grant of an indulgence to a
    party who is in default.

    [1]

    Length of Delay

    [19] While the delay in making their application may not be said to be
    inordinate, the applicants were seemingly aware that they were out of time
    from the very day of filing their leave applications. That period is
    sufficiently explained by the electrical and internet difficulties
    experienced by the applicants at that time. What has not been sufficiently
    explained is why the applicants failed to issue extension applications then
    and there but rather waited until the leave applications were dismissed for
    precisely the fact of being untimely, followed by a further period after
    what must have been appreciated would have been the consequence of
    untimeliness in respect of their leave applications. Rather, the applicants
    seemed content to challenge their dismissal by asserting that the single
    judge was in error for dismissing them even in the face of never seeking to
    place material before the single judge on which she could have exercised
    her discretion in putting matters right by extending time. The fact that
    the Court has a power to put matters right does not equate to the Court
    exercising that power in a vacuum.

    Prejudice

    [20] It cannot be gainsaid that the respondents now have a judgment in
    their favour in respect of the Fraud Claim. Furthermore, the Court has been
    told without demur that the applicants have failed to engage this claim on
    the merits in the court below. It does not appear that the applicants have
    taken any steps to set aside the default judgment, a step which would
    require them to put forward defences to the claim on the merits even while
    they seek from this Court a stay of the very proceedings in the court below
    which could only be taken to be asking, in effect, for a stay of execution
    of the judgment which has already been entered. They have flouted the
    disclosure and asset tracing orders of the court. In such circumstances, it
    cannot be said that the respondents will suffer no prejudice.

    Prospects of Success

    [21] It is this factor on which detailed arguments on both sides were
    focused. It is useful to remind ourselves that what was before the learned
    judge were applications to strike out the claims. He was very much alive to
    the fact that the power to strike is one of the most powerful weapons in
    the court’s arsenal in managing and dealing with a case justly in the
    exercise of the overriding objective. The power has been described by the
    Privy Council in

    Real Time Systems Limited v Renraw Investments Limited et al


    [2]

    as one of the court’s nuclear options and thus one to be exercised
    sparingly and normally as a measure of last resort. The learned judge, from
    his reasoning, was also alive to the fact that in dealing with an
    application to strike out a case, he also had open to him the whole
    plenitude of case management powers on which to draw rather than acceding
    to this nuclear option. As the trial judge, he would have been managing the
    cases and is best placed to assess the general feel of them.

    [22] A party who seeks to overturn the exercise of a judge’s discretion in
    such circumstances has a heavy burden to discharge in showing how the
    exercise of his discretion refusing to strike out falls outside the
    generous ambit of the discretion reposed in him.

    [3]

    For the purposes of this exercise, the applicants must show that their
    proposed appeals have realistic prospects of overturning the discretion
    exercised by him, and that this Court should in the exercise of its
    discretion extend time for the purpose of seeking leave.

    [23] The grant of leave itself requires that the proposed appeals meet the
    threshold of showing realistic prospects of success warranting the Court’s
    permission to appeal. The proposed appeals herein do not lie as of right
    and for good reason. They are from interlocutory decisions made by the
    court below in ongoing proceedings. Such appeals always have an impact on
    the flow and progress of the underlying proceedings with the potential for
    them to become protracted and delayed. The requirement for leave to appeal
    most interlocutory decisions provides a filter for safeguarding the Court’s
    process and resources by enabling the Court to weed out would-be
    unmeritorious appeals.

    [24] We now turn to the applicants’ arguments bearing in mind those
    observations. The applicants have placed heavy reliance on the 1981
    decision of the UK House of Lords (now the UK Supreme Court) ofBremer Vulkan v South India Shipping Corporation Ltd .

    [4]

    Counsel for the applicants contend that this case stands for the
    proposition that the court has no jurisdiction to restrain arbitration
    proceedings and, in essence, that the court having done so was in error
    thus giving rise to a realistic prospect of success on appeal. Counsel also
    repeated many of the arguments made before the trial judge as to the stay
    granted in the Singapore proceedings which she says requires the
    application of the principles of res judicata or issue estoppel barring the
    claims. She asserts that the FDC could not seek to stay the arbitration
    proceedings given the arbitration agreement and insists, in effect, that
    the intent of the stay granted by the Singapore court was for the purpose
    of the arbitration proceedings being carried out in Nevis with no recourse
    to the High Court being possible at this stage.

    [25] Having reviewed the Bremer Vulkan decision, we do not agree that it stands
    for that broad proposition as advanced by counsel. To the contrary, the
    court recognised the power to grant injunctions restraining an arbitration
    while making clear that such a power is to be exercised only in appropriate
    cases. This case is also of no assistance to the applicants because they
    are not seeking to appeal against the grant of the injunction. Rather, they
    seek to rely on it as a basis for striking out the claims altogether as an
    abuse of process in favour of the arbitration proceedings, notwithstanding
    that the respondents’ main thrust in the proceedings is to impeach the
    arbitration agreements as well as the arbitral process in respect of its
    commencement and the impartiality of the arbitrator. We are satisfied that
    the learned judge was alive to this distinction, and the nature of the
    proceedings before him based on his careful reasoning.

    [26] Having reviewed the reasoning of the learned judge, we have not
    discerned any basis tending to show that he may have committed some error
    in principle in his assessment of the evidence and the pleaded cases before
    him, or that he failed to take into account relevant matters or took into
    account irrelevant matters or that there is a real prospect that his
    decision may be plainly wrong in relation to those aspects or his treatment
    of the procedural issues. We are accordingly not of the view that the
    proposed appeals from the exercise of his discretion have any realistic
    prospect of success. It would be pointless to grant an extension of time to
    allow appeals with little or no hope of success to be launched in the
    circumstances. Such a course would not be in keeping with furthering the
    overriding objective of dealing with cases justly. The extensions of time
    are accordingly refused. It follows that the applications for leave to
    appeal fall away and that the application for a stay of proceedings or stay
    of execution in the Fraud Claim must be dismissed.

    Conclusion

    [27] For the reasons given, the applications to discharge the orders of the
    single judge are dismissed; the applications to extend time for seeking
    leave to appeal are refused. Accordingly, the applications for leave to
    appeal fall away and the application for a stay in the Fraud Claim is
    dismissed.

    Costs

    [28] The applicants shall bear the costs of the applications to be assessed
    by the court below, unless agreed by the parties in 30 days, such costs to
    be no more than two-thirds of the assessed costs in the court below.

    I concur.

    Gertel Thom

    Justice of Appeal

    I concur.

    Gerard St. C. Farara

    Justice of Appeal [Ag.]

    By the Court

     

    Chief Registrar

     



    [1]

    See Lindsay F.P. Grant and Anor v Tanzania Tobin Tanzil
    SKBHCVAP2020/0004 (delivered 6th July 2020, unreported).


    [2]

    (2014) 84 WIR 439.


    [3]

    See Nilon Limited and another v Royal Westminster Investments S.A.
    and others [2015] 3 All ER 372; Marinor Enterprises Limited and
    Anor v First Caribbean International Bank (Barbados) Ltd.
    DOMHCVAP2013/0003 (delivered 4th April 2016,
    unreported).


    [4]

    [1981] AC 909.

    /america-2030-capital-limited-v-sunpower-business-group-pte-ltd/
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