Fairfield Sentry Ltd v Citco Bank Nederland

JurisdictionIreland
JudgeMs. Justice Finlay Geoghegan
Judgment Date25 June 2012
Neutral Citation[2012] IEHC 462
CourtHigh Court
Date25 June 2012

[2012] IEHC 462

THE HIGH COURT

[No. 6631 P/2010]
[No. 239 COM/2010]
Fairfield Sentry Ltd (in liquidation) & Krys v Citco Bank Nederland BV & Ors
No Redaction Needed
COMMERCIAL

BETWEEN

FAIRFIELD SENTRY LIMITED (IN LIQUIDATION) AND KENNETH KRYS
PLAINTIFFS

AND

CITCO BANK NEDERLAND NV, STICHTING SHELL PENSIOENFONDS AND ATLANTA BUSINESS INC.
DEFENDANTS

VEOLIA WATER UK PLC & ORS v FINGAL CO COUNCIL 2007 2 IR 81

MCALEENAN v AIG (EUROPE) LTD UNREP FINLAY GEOGHEGAN 16.7.2010 2010/30/7665 2010 IEHC 279

RSC O.99 r1

Practice & procedure – Judgment – Orders – Judgment issued following earlier hearing – Plaintiffs seeking further declarations

Facts: The parties had been involved in litigation regarding the recognition of a winding up order issued in respect of the first plaintiff and the appointment of the second plaintiff as a liquidator (see [2012] IEHC 81; [2012] 2 JIC 2801). Following the delivery of the judgment in the matter, a number of orders were made and the parties were invited to apply for further declarations if required. The plaintiffs now applied for further declarations

Held by Finlay Geoghegan J, that the Court possessed jurisdiction to make declarations in accordance with the earlier judgment notwithstanding said declarations had not been applied for in the earlier proceedings. The Court considered the declarations sought, aside from two, were consistent with the earlier judgment and would grant them.

A costs order was made to reflect the parties” respective successes in the proceedings.

1

JUDGMENT (RELIEF AND COSTS) of Ms. Justice Finlay Geoghegan delivered on the 25th day of June, 2012

2

1. On 28 th February, 2012, I delivered judgment in the above entitled proceedings. This judgment on the declarations to be included in the Order to be made pursuant to the judgment and costs needs to be read in conjunction with that judgment. In that judgment, I specified the relief to be granted and refused in the following terms:-

"The plaintiffs are entitled to the declarations sought in relation to recognition of the order for the winding up of Fairfield and the appointment of Mr. Krys as liquidator.

The plaintiffs are not entitled to the declarations that each of the orders of conservatory garnishment are not entitled to recognition in the State pursuant to the Regulation.

It also appears that the plaintiffs are not entitled to the declaration sought that Citco holds the monies in the Dublin Account to the order of the liquidator having regard to the underlying dispute with Citco and their failure on the issue of non recognition of the orders of conservatory garnishment."

3

2. The declarations to which the plaintiffs are entitled in accordance with the above and their statement of claim are:-

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(i) A declaration that a decision and order of the High Court of Justice of the Eastern Caribbean Supreme Court dated 21 st July, 2009 bearing Record No. BVIHCV 2009 136 and entitled "Deutsche Bank International (Cayman) Limited Trustee of the Elvira Trust, together with other persons named in the Schedule hereto, Applicant and Fairfield Sentry Limited, Respondent" and which said order declared that the first named plaintiff be wound up in accordance with the provisions of the Insolvency Act 2003 of the British Virgin Islands be recognised in the State.

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(ii) A declaration that the said order insofar as the appointed, the second named plaintiff as liquidator of the first named plaintiff be recognised in the State.

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3. The plaintiffs, in addition, had sought a number of declarations in relation to the money held in the Dublin Account i.e. Account No. 52.358105.001 of the first named plaintiff (Fairfield) with the first named defendant (Citco) at its Dublin Branch which were refused. In the statement of claim, the plaintiffs had also sought "such further and other order as to this Honourable Court may see fit".

7

4. In the proceedings, there were in dispute between the plaintiffs and the second and third named defendants (Shell and Atlanta respectively), a number of contractual and proper law issues in relation to the Dublin Account. Several of those issues were resolved in favour of the plaintiffs in the judgment delivered on 28 th February, 2012. Upon delivery of the judgment, the Court gave the parties an opportunity of considering whether, having regard to the judgment, there should or should not be any further declaration included in the order to be made.

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5. The parties anticipate that there may be further proceedings in the Netherlands in relation to matters in dispute between the parties, concerning the monies in the Dublin Account of Fairfield. Primarily, having regard to that possibility, the plaintiffs sought to have certain declarations included in the order to be drawn pursuant to the judgment delivered on 28 th February, 2012. The further declarations sought are:-

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2 "1. A declaration that the Dublin Account is governed by the General Conditions.

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2. A declaration that the Dublin Accounts is not governed by the Custodian Agreement.

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3. A declaration that the proper law of the contract for the Dublin Account is Irish law.

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4. A declaration that the place of payment obligations is Dublin.

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5. A declaration that the balance on the Dublin Account is repayable to the Liquidator in Dublin and not elsewhere in Dublin unless the Liquidator otherwise directs and consents that payment may be made elsewhere."

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6. It is not in dispute that the Court now does have jurisdiction to make declarations consistent with the judgment already delivered, notwithstanding that the specific declarations were not sought in the statement of claim. The plaintiffs submit that the Court should exercise its discretion to make the declarations as they relate to matters which were in dispute between the parties, and...

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