INTERTRADE CORPORATION v DAVID CRAM v WINDJAMMER LANDING CO. LTD.

SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 t No. 251 of 1993 BETWEEN: INTERTRADE CORPORATION tor and DAVID CRAM De Debtor and WINDJAMMER LANDING CO. LTD. Mr. P. Foster for the Plaintiff/Judgment Creditor Mrs. B. Flemming for Opposant 1996: January 19; February 9. JUDGMENT MATTHEW J. (In Chambers) . On October 20, 1993 the aintiff obtained j t the Defendant for the sum of $797,015.45 with interest and costs $5,000 and on July 5, 1995 issued a writ of execution re ct the Defendant's shares in the Opposant company after complied with Article 436 of the Code of Civil Procedure. On August 31, 1995 the Opposant issued a summons for opposit and seizure. The summons was supported by an fidavit of Donald Richard Smith to the effect that the Defendant has no shares in the Opposant he having transferred his only share in that company to a Bahamian company with the same name, Windjammer Landing Ltd. He tendered as exhibit a share certificate in the name of David Cram with the alleged transfer to the Bahamian Corporation effected at the back of the certificate. On September 12, 1995 d'Auvergne J. ordered that t seizure and sale be stayed. On October 16, 1995 Jeffrey Firestone of filed an aff t to the effect that David Cram still has an erest in the Sa Lucian Company, Windj ammer Landing Company One of t grounds on which Firestone relied is the fact that in DanKruotcy proceedings filed in the United States Bankruptcy Court Cram stated that he owns 50 per cent of Windjammer Resore Lucia. An exhibit to t ef was tendered. He further stated that the Saint Lucian ster did not cate a change in the shareholdings of t but he ted that the Opposant had registered an as owning 2 shares in the Saint Luc company contravent of Article 110 (1) and (3) of the Commercial Code and believes fore that David Cram is owner of an erest the Opposant company. He said he had caused to search the ster of an company and that did not reveal a stration of t share transferred by David Cram to the Bahamian company. It is fficult to see how he would expect to find that in a register pert to Bahamian company. I agree with the submiss of Counsel for the Opposant that any Registry would only show what is ld by the company there and would not show what s company in question holds in another company overseas. deponent also stated that since there was no proof of acceptance of the share by the Bahamian company he was putt Opposant to proof of that allegation. On November 14, 1995 the Opposant filed a summons to relieve the directors and officers of the company from any penalties which are liable to be imposed upon them and to grant permission to the Opposant to file or to sanction the filing of the Return of lotment dated June 16, 1994 and filed with Registrar's fice on June 17, 1994. This summons was supported one of two affidavits filed by Lynne Cram on November 14, 1995. s was the er affidavit consisting of 10 paragraphs. But on the said November 14, Cram fil af idavit consisting of 13 paragraphs in of the summons for opposition to seizure. Attached to t s affidavit were several exhibits, A to G, to whi I shall re r later the course of this judgment as is necessary. Cram also tendered a copy of a return of s t the form of an exhibit to her shorter aff t. SUB~ISSIONS OF COUNSEL Counsel the Opposant reduced her s to a eton form which was made available to the Court and oppos Counsel. Counsel submitted that the Judgment tor contends stone's affidavit the following: (1) the said leged transfer was never s transferee and was never stered at all or wi time prescribed by law. (2) that the said trans was not filed before stration of the judgment by Intertrade nor was it filed issue of the writ of execution. (3) that in the circumstances the all trans the Defendant is void and of no effect and that ac the Defendant remains the holder of the shares. (4) the return of allotment filed by Windjammer Landing Co. Ltd. is in contravention of Article 110 of the Commercial Code. I think this correctly describes the issues to be determined and I did not perceive that learned Counsel for the Plaintiff disagreed th that. Indeed he followed the document his to submissions made. 1 then made submissions t of foIl (a) Non Execut by transferee; (b) Non Registration of the Transfer; (c) fect of Registration of the Judgment of t aintiff; (d) Non compliance with Article 110; and (e) Lifting the Corporate Veil. In the course of her submissions learned Counsel re to lowing: Halsbury's Laws of England Fourth Edit paragraphs 479 and 482; CUNNI NGHAME v. CITY OF GLASGOW BANK 1879 4 A.C. 607 H/C; RE PARADISE MOTOR CO. LTD. 1968 2 ACR 625; RE ROSE, ROSE v. 1 RC AER 1217; PALMER'S COMPANY LAW, 25th edition Volume 1 40 - 05; Article 1923 of the Civil Code; Articles 80 and 110 of the Commercial Code. Learned Counsel for the Plaintiff/Judgment Creditor reference to the background to the matter and stated the purport of his arguments is that the share trans Cram to the Bahamian company is a nullity and Cram sti fore owns the one share out of the two shares were issued by the company on incorporation and he is still 50 per cent holder of the St. Lucian company as he alleged s bankruptcy petition in the United States. Counsel made reference to Article 28 of the articles of association of the company and to Article 80 of the Commercial Code. th reference to the share certificate Counsel submitt the transfer was signed only by David Cram and was not s an company. Counsel further submitted that the trans r was not stered in Saint Lucia as required by Article 110 of the cal Code. He said indeed the transfer cannot be ste Saint Lucia because it is not a proper trans as ated t articles of association of company. Counsel made reference to a passage in RE ROSE at 1228, etters A to C. Counsel criticized a legal opinion given by McNamara & Co. he " 0 stated the Opposant was relying on. In reply to an argument from the other side Counsel tted was no evidence that the fact of the transfer to the Company was being acted upon for a long period. In her submissions in reply learned Counsel for re terated the principle Article 80 of the Code articles of t company bind only members and t company it f and accordingly no outsider can purport to t age non-compliance by a member with the provisions articles. In connection she cited Paragraph 141 of Halsbury's Laws and Volume 7(1) and Gover's company law 5th tion at CONCLUSIONS One of the grounds on which the Plaintiff/Judgment Creditor reI s as holding the transfer by David Cram of his one share to the Bahamian company to be void is that the Opposant and or the Bahamian company did not register the said transfer prior to the Plaintiff/Judgment Creditor obtaining judgment and prior to the writ of execution being filed. As stated above the judgment was obtained by iff on October 20,

1993.It was entered on November 3, 1993. iest date on the registration of the trans d be deemed to have taken effect is on June 17, 1994 ch is cl than the entry of the judgment. Plaintiff did not give any authority as to why t aining the judgment could affect strat Counsel for the Opposant however submitted in this re t the judgment obtained by the Plaintiff has no ef on s Defendant/Judgment Debtor as a judgment rates as a j c "- hypothec on the immovables and not on movables a j Counsel cited as authority Article 1923 of t 1 Code states in part: IIJudicial hypothec affects generally the es the debtor at the time the registration of such and those subsequently owned by him unless same are exemDt from seizure or are incapable of aliena on 0 se." t seems to me that Article is a perfect answer to the submlSS accordingly I hold that the judgment did not af any owned by David Cram nor could it affect any share transf to the Bahamian company. On the other aspect of the submiss learned Counsel t Opposant simply stated that the writ of execution fil iff had no effect on the transfer of shares as the return of allotment of two shares to the Bahamian company preceded the writ of execution. The writ of execution was filed on July 5, 1995. Counsel's submission is only maintainable if it is accepted that the registration of the shares was made on June 17, 1994. But the Opposant's summons filed on November 14, 1995 one of the relief sought of the Court was the granting of permission to the Opposant to file or sanctioning the filing of the return of dat June 16, 1994 and filed with the Registrar on the But here again the Judgment Creditor did not indicate any authori to show why the earlier date of the writ of execution should af transfer of the share by David Cram to the Bahamian I 1 consider the application of Article 110 of Commercial later but in accordance with the view expressed below I rule the writ of execution has no effect on the trans d Crarn of his one share to the Bahamian company. s leads me straight away to consider t effect of iance with Article 110 of t Commerical The mate sions are as follows: "110 (1) Within one month after making an allotment shall file with the Registrar - (a) A return of the allotment, stating amount of the shares comprised the allotment, names, addresses and description the lottees, and the amount, if any, paid or due and e on each share; and (b) (2 ) (3) If default is made in complying with rements every director, manager, secretary, or 0 cer of the company who is knowingly a party to the defaul t, shall be liable to a fine not exceeding two hundred and forty dollars for every day during which the defaul t continues: Provided that, in case of default in filing with the Registrar wi thin one month after the allotment any document hereby required to be filed the company, or any person liable for default, may apply to the Court for reli ,and , if satisfied that the omission to le twas accidental or due to inadvertence or that it is just and equi table to grant relief may make an order for the filing of the document for such od as Court may think proper." It is clear from a reading of the above provis that lure of the company to file a return of allotment withln one montn a er it does not invalidate t trans Court is a discretion in the proviso to extend the t stration. In support of its application for reI f the states that it relied on the opinion of its lawyers so assumed t the records were order. Opposant tendered support a legal opinion by Messrs McNamara & Co. to Barclays Bank of Canada dated 8/ 1988 ch it was stated as follows: "1. Windj ammer Sain tis a and subsisting in good standing laws State of Saint Lucia.;

2.The share capi tal of Windjammer t Luc~a is $20,000,000 divided to 2,000,000 shares of 0.00 ea of which two shares have been issued. All i shares are owned by Windjammer Bahamas as the s and beneficial owner thereof and have been i as fully paid and are not subject to further call." Learned Counsel for the Plaintiff/Judgment Creditor has t that the opinion of McNamara was wrong but that my Vlew/ even if correct, could not detract from the company's reliance on the opinion to show that the ssion to file the allotment in t accidental or due to inadvertence or to prevent the Court from finding that in the circumstances it is just and equitable to grant relief. As learned Counsel for the Opposant submit it was c rcumstances reasonable for the Opposant to rely on the of i s lawyer and to assume that the corporate records were order. Accordingly I grant the Opposant t relief sought I t time extended to file the allotment made on extended to June 17, 1994. I think the maj or thrust of the Plaintiff IS obj ect to t summons for opposition to seizure and sale is the transfer of the share by David Cram to the B an is vo of no effect because Bahamian never siqned t eged share transfer. Counsel relied on Article 28 of t Articles of Association the Saint Luc company. Article is at Exhibit "All to the longer of Lynne Cram's aff t s as follows: "28. The instrument of transfer of a share shall be execu both by the transferor and and the transferor shall be deemed to remain the holder of the share until the name of the transferee is entered the register of members in respect thereof1l. Paragraph 479 of sbury's Law of England, Fourth t ume 7 (1) is instructive on the form and execution of trans t states in part: "The instrument of transfer must either be in accordance wi the articles of association and be executed in manner thereby p~escribed or it must be a stock transfer, or a common or usual form complying wi th the requiremen ts as to execution and content which apply to a stock transfer. Notwithstanding anything in the articles of a company, it is not lawful for a company to register a transfer of shares unless a proper instrument of transfer has been delivered to the company. II In footnote 3 to this paragraph the meaning of a trument transfer is given as lIan instrument which would attract s ty, not an instrument complying with every formali red articles RE PARADISE MOTOR CO. LTD. 1968 2 AER 625. H It would appear that j cial dicta t h st courts of and have sought to interpret and apply s lar as Article 28 of the Articles of Associat of the Paragraph 482 of the said volume of sbury's Laws and states" "When, as is usual f articles of a on t the instrument of transfer shall be executed or si th the transferor and the transferee, non-execu on by only makes the transfer irregular and not a nulli tv, if it has been acted upon for a long od, it cannot impeached. II Two of the authorities given in support of that proposit law s CUNNI NGHAME v. CITY OF GLASGOW BANK 4 A.C. 6 71 H.Li RE PARADISE MOTOR CO. LTD. 1968 2 AER 625, C.A. In Cunninghame's case, A, one of five trustees appo a marriage contract, signed with his co-trustees a note the purchase of stock in a joint stock banking company of unl ted iability. By the authority of the law agent of the trustees 1 acting on the note of approval, all the names of the trustees appeared in the transfers as accepting the stock, and in ster of members of the company. A did not sign t trans r, but he signed a subsequent letter to the company authoriz the payment of dividends. The company was wound UPI and A and s co- trustees were placed on the list of contributories as personally and individually liable for calls. In a petition at the instance A for rectification of the register and list of cont ories; House of Lords held, affirming decision of the Court be ow, A had authorised his name to be Dlaced on ster. trustees were liable in solidum for the whole st, and not pro rata parte for one fifth part only. distinguished Lord Chancellor, rns, who udgment of the Court stated at page 611 as fol "The only thing that can be suggested as not present is the formal imposition of a signature by llant to t deed of transfer. That, my Lords, seems to me to the purest form, the merest ceremony, and want it can no substantial operation whatever in the present case . In RE PARADISE there was a similar requirement Article 8 of the Company's articles of association that a transfer of s had to signed by both transferor and trans and had to attested; by Section 75 of the Companies Act 1948 it was not 1 to ster a transfer unless a proper trument of transfer was ivered to the company. In that case there was a sory dation of a company and one of the questions which arose was her there had been an effective qift by W of 350 s the company to his stepson J. The transfer did not name transferee it bore a signature purporting to be that of J and J he had signed it. Judge accepted evi of J that he did not execute the transfer. The Court of Appeal held that the phrase "porper instrument lJ in Section 75 of the Companies Act meant an instrument such as would attract stamp duty not an instrument complying with every lity the circumstances, required by the articles of association; and the having regard to the lapse of time failure to procure the execution of the transfer of the 350 shares by J amount only to an irregularity, and W had made an effective gift/ so far as it lay in hiw power to do so, of the 350 shares. In support of her submissions learned Counsel t re rred to Exhibit F which is an agreement tween ammer Holdings Ltd., a Canadian company, of first Cram of the second parti and WINDJAMMER LANDING COMPANY LTD., Bahamian Company, of third part. The was executed on July 3, 1987 by all three parties. The e reads as lows: "Whereas Don and David decided to cert property known as the Waltson Property Property in St. Luc and ammer to incorporated for the purposes of out such through its wholly-owned subsidi WlnClammer ted, a corporation duly incorporated 17, pursuant to the laws of the State of St. Lucia ('wlnclammer Saint Luc '); Now THEREFORE THIS AGREEMENT WITNESSETH" etc. In my judgment this memorandum of agreement is an cation t Bahamian Company has acted on t transfer of s recognised itself as being owner of the two s issued the Sa Lucia company. On the authority of the judicial dicta referred to above I hold the non-execution of the trans r by Bahamian Comoanv s not render the transfer void and of no effect as all restone. Opposant has fortified its position by reference to Article 80 of the Commercial Code; paragraph 140 of Volume 7(1) of sbury's Laws of England; and a reference to page 284 of 5th edit Gower's company law. These authorities were to the effect that no non compliance by a outsider can purport to take advantage of In the passage from member with the provisions of the article. v. KENT 1915 1 Ch. Gower is a quotation by Astbury J in HICKMAN 881 at page 897 that II An outs to whom s to articles in s as outs subsequent becomes a , cannot sue on treat them as contracts If S." Plaintiff/Judgment tor no to ss I think I have ready touched on non strat of transfer within t Article 110 Commerci Code. I with submission by I Counsel lure to ster rument trans s s seems to be idate the transfer. case of RE ROSE: ROSE v. INLAND REVENUE COMMISSIONERS 1 AER 1217 C.A. In case trans loned by both trans t as 's regulat The issue to its stration. Dates were or not the and Revenue ss success ir claim estate duty s Mr. Rose. trans concerned to execut I Part between March 30, 1943 and I 5, 1943. The trans were not stered until June 30, 1943. to Act all the shares would be I e to estate April 10, 1943 been a bona f soos purport to operate as gi s Court of Appeal held that the I In hlS to divest himself of the shares and to vest transferees and the transfers were ef as the Deceased and the transferees to divest the deceased of fi ownership and to constitute the transferees the benefici owners the shares; the circumstances that the trans must, to perfect the legal title, apply for and obtain registration, not prevent the transfers from so operat and t stration the Deceased was the trustee the trans rees of legal estate int he shares whi still rema and t fore, the gift of the benefici interest t s made and completed prior to April 10, 1943 and no estate was exigible. Paragraph 40-05 of the 24th edition of Gower's Company Law states t once the contract has been entered o transferee has an table title to the shares and the transferor then, unt stration, as trustee for the transferee. For the reasons given above I smiss the writ of execution filed the Plaintiff/Judgment Creditor with costs of $500. to Opposant.

A.N.J. MATTHEW

Puisne Judge

SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 t No. 251 of 1993 BETWEEN: INTERTRADE CORPORATION and DAVID CRAM and WINDJAMMER LANDING CO. LTD. Mr. P. Foster for the Plaintiff/Judgment Creditor Mrs. B. Flemming for Opposant MATTHEW J. 1996: January 19; February 9. JUDGMENT (In Chambers) . On October 20, 1993 the aintiff obtained j tor De Debtor t the Defendant for the sum of $797,015.45 with interest and costs $5,000 and on July 5, 1995 issued a writ of execution re ct the Defendant’s shares in the Opposant company after complied with Article 436 of the Code of Civil Procedure. On August 31, 1995 the Opposant issued a summons for opposit and seizure. The summons was supported by an fidavit of Donald Richard Smith to the effect that the Defendant has no shares in the Opposant he having transferred his only share in that company to a Bahamian company with the same name, Windjammer Landing Ltd. He tendered as exhibit a share certificate in the name of David Cram with the alleged transfer to the Bahamian Corporation effected at the back of the certificate. On September 12, 1995 d’Auvergne J. ordered that t seizure and sale be stayed. On October 16, 1995 Jeffrey Firestone of to the effect that David Cram still has an filed an aff erest in the Sa Lucian Company, Windj ammer Landing Company One of t t grounds on which Firestone relied is the fact that in DanKruotcy proceedings filed in the United States Bankruptcy Court Cram stated that he owns 50 per cent of Windjammer Resore Lucia. An exhibit to t ef was tendered. He further stated that the Saint Lucian ster did not cate a change in the shareholdings of t but he ted that the Opposant had registered an as owning 2 shares in the Saint Luc company contravent of Article 110 (1) and (3) of the Commercial Code and believes fore that David Cram is owner of an erest the Opposant company. He said he had caused to search the ster of an company and that did not reveal a stration of t share transferred by David Cram to the Bahamian company. It is fficult to see how he would expect to find that in a register pert to Bahamian company. I agree with the submiss of Counsel for the Opposant that any Registry would only show what is ld by the company there and would not show what s company in question holds in another company overseas. deponent also stated that since there was no proof of acceptance of the share by the Bahamian company he was putt Opposant to proof of that allegation. On November 14, 1995 the Opposant filed a summons to relieve the directors and officers of the company from any penalties which are liable to be imposed upon them and to grant permission to the Opposant to file or to sanction the filing of the Return of lotment dated June 16, 1994 and filed with Registrar’s fice on June 17, 1994. This summons was supported one of two affidavits filed by Lynne Cram on November 14, 1995. er affidavit consisting of 10 paragraphs. s was the But on the said November 14, 1995 Cram fil af idavit consisting of 13 paragraphs in of the summons for opposition to seizure. Attached to t s affidavit were several exhibits, A to G, to whi I shall re r later the course of this judgment as is necessary. Cram also tendered a copy of a return of s t the form of an exhibit to her shorter aff t. SUB~ISSIONS OF COUNSEL Counsel the Opposant reduced her s to a eton form which was made available to the Court and oppos Counsel. Counsel submitted that the Judgment tor contends stone’s affidavit the following: (1) the said leged transfer was never s transferee and was never stered at all or wi time prescribed by law. (2) that the said trans was not filed before stration of the judgment by Intertrade nor was it filed issue of the writ of execution. (3) that in the circumstances the all trans the Defendant is void and of no effect and that ac the Defendant remains the holder of the shares. (4) the return of allotment filed by Windjammer Landing Co. Ltd. is in contravention of Article 110 of the Commercial Code. I think this correctly describes the issues to be determined and I did not perceive that learned Counsel for the Plaintiff disagreed th that. Indeed he followed the document his to submissions made. 1 then made submissions t of (a) (b) (c) Non Execut by transferee; Non Registration of the Transfer; fect of Registration of the Judgment aintiff; (d) Non compliance with Article 110; and (e) Lifting the Corporate Veil. foIl of t In the course of her submissions learned Counsel re to lowing: Halsbury’s Laws of England Fourth Edit 7 paragraphs 479 and 482; CUNNI NGHAME v. CITY OF GLASGOW BANK 1879 4 A.C. 607 H/C; RE PARADISE MOTOR CO. LTD. 1968 2 ACR 625; RE ROSE, ROSE v. 1 RC 1952 AER 1217; PALMER’S COMPANY LAW, 25th edition Volume 1 611 40 – 05; Article 1923 of the Civil Code; Articles 80 and 110 of the Commercial Code. Learned Counsel for the Plaintiff/Judgment Creditor reference to the background to the matter and stated purport of his arguments is that the share trans the Cram to the Bahamian company is a nullity and Cram sti fore owns the one share out of the two shares were issued by the company on incorporation and he is still 50 per cent holder of the St. Lucian company as he alleged s bankruptcy petition in the United States. Counsel made reference to Article 28 of the articles of association of the company and to Article 80 of the Commercial Code. th reference to the share certificate Counsel submitt the transfer was signed only by David Cram and was not s an company. Counsel further submitted that the trans r was not stered in Saint Lucia as required by Article 110 of the cal Code. He said indeed the transfer cannot be ste Saint Lucia because it is not a proper trans as ated t articles of association of company. Counsel made reference to a passage in RE ROSE etters A to C. at 1228, Counsel criticized a legal opinion given by McNamara & Co. ” 0 stated the Opposant was relying on. In reply to an argument from the other side Counsel tted was no evidence that the fact of the transfer to the Company was being acted upon for a long period. In her submissions in reply learned Counsel for re terated the principle Article 80 of the Code he articles of t company bind only members and t company it f and accordingly no outsider can purport to t age non-compliance by a member with the provisions articles. In connection she cited Paragraph 141 of Halsbury’s Laws and Volume 7(1) and Gover’s company law 5th tion at CONCLUSIONS One of the grounds on which the Plaintiff/Judgment Creditor reI s as holding the transfer by David Cram of his one share to the Bahamian company to be void is that the Opposant and or the Bahamian company did not register the said transfer prior to the Plaintiff/Judgment Creditor obtaining judgment and prior to the “- writ of execution being filed. As stated above the judgment was obtained by iff on October 20, 1993. It was entered on November 3, 1993. iest date on the registration of the trans be deemed to have taken effect is on June 17, 1994 than the entry of the judgment. Plaintiff did not give any authority as to why t aining the judgment could affect strat ch is cl d Counsel for the Opposant however submitted in this re t the judgment obtained by the Plaintiff has no ef on s Defendant/Judgment Debtor as a judgment rates as a j c hypothec on the immovables and not on movables a j Counsel cited as authority Article 1923 of t states in part: IIJudicial hypothec affects generally the es the debtor at the time the registration of such 1 Code and those subsequently owned by him unless same are exemDt from seizure or are incapable of aliena on 0 se.” t seems to me that Article is a perfect answer to the submlSS accordingly I hold that the judgment did not af any owned by David Cram nor could it affect any share transf to the Bahamian company. On the other aspect of the submiss learned Counsel t Opposant simply stated that the writ of execution fil iff had no effect on the transfer of shares as the return of allotment of two shares to the Bahamian company preceded the writ of execution. The writ of execution was filed on July 5, 1995. Counsel’s submission is only maintainable if it is accepted that the registration of the shares was made on June 17, 1994. But the Opposant’s summons filed on November 14, 1995 one of the relief sought of the Court was the granting of permission to the Opposant to file or sanctioning the filing of the return of June 16, 1994 and filed with the Registrar on the 1 dat But here again the Judgment Creditor did not indicate any authori to show why the earlier date of the writ of execution should af transfer of the share by David Cram to the Bahamian I 1 consider the application of Article 110 of Commercial later but in accordance with the view expressed below I rule the writ of execution has no effect on the trans d Crarn of his one share to the Bahamian company. s leads me straight away to consider t effect of iance with Article 110 of t Commerical The mate sions are as follows: “110 (1) Within one month after making an allotment shall file with the Registrar – (a) A return of the allotment, stating (b) (2 ) amount of the shares comprised the allotment, names, addresses and description the lottees, and the amount, if any, paid or due and e on each share; and (3) If default is made in complying with rements every director, manager, secretary, or 0 cer of the company who is knowingly a party to the defaul t, shall be liable to a fine not exceeding two hundred and forty dollars for every day during which the defaul t continues: Provided that, in case of default in filing with the Registrar wi thin one month after the allotment any document hereby required to be filed the company, or any person liable for default, may apply to the Court for reli ,and , if satisfied that the omission to le twas accidental or due to inadvertence or that it is just and equi table to grant relief may make an order for the filing of the document for such od as Court may think proper.” It is clear from a reading of the above provis that lure of the company to file a return of allotment withln one montn a er it does not invalidate t trans Court is a discretion in the proviso to extend the t stration. In support of its application for reI f the states that it relied on the opinion of its lawyers so assumed t the records were order. Opposant tendered support a legal opinion by Messrs McNamara & Co. to Barclays Bank of Canada dated 8/ 1988 was stated as follows: “1. Windj ammer Sain tis a subsisting in good standing laws of Saint Lucia.; ch it and State

2.The share capi tal of Windjammer t Luc~a is $20,000,000 divided to 2,000,000 shares of 0.00 ea of which two shares have been issued. All i shares are owned by Windjammer Bahamas as the s and beneficial owner thereof and have been i as fully paid and are not subject to further call.” Learned Counsel for the Plaintiff/Judgment Creditor has t that the opinion of McNamara was wrong but that my Vlew/ even if correct, could not detract from the company’s reliance on the opinion to show that the ssion to file the allotment in t was accidental or due to inadvertence or to prevent the Court from finding that in the circumstances it is just and equitable to grant relief. As learned Counsel for the Opposant submit it was c rcumstances reasonable for the Opposant to rely on the of i s lawyer and to assume that the corporate records were order. Accordingly I grant the Opposant t relief sought time extended to file the allotment made on extended to June 17, 1994. I t I think the maj or thrust of the Plaintiff IS obj ect to t summons for opposition to seizure and sale is the transfer of the share by David Cram to the B an is vo of no effect because Bahamian never siqned t eged share transfer. Counsel relied on Article 28 of t Articles of Association the Saint Luc company. Article is at Exhibit “All to the longer of Lynne Cram’s aff t s as follows: “28. The instrument of transfer of a share shall be execu both by the transferor and and the transferor shall be deemed to remain the holder of the share until the name of the transferee is entered the register of members in respect thereof1l. Paragraph 479 of sbury’s Law of England, Fourth t ume 7 (1) is instructive on the form and execution of trans t states in part: “The instrument of transfer must either be in accordance wi the articles of association and be executed in manner thereby p~escribed or it must be a stock transfer, or a common or usual form complying wi th the requiremen ts as to execution and content which apply to a stock transfer. Notwithstanding anything in the articles of a company, it is not lawful for a company to register a transfer of shares unless a proper instrument of transfer has been delivered to the company. II In footnote 3 to this paragraph the meaning of a trument transfer is given as lIan instrument which would attract s ty, not an instrument complying with every formali red articles RE PARADISE MOTOR CO. LTD. 1968 2 AER 625. H It would appear that j cial dicta t h st courts of and have sought to interpret and apply s Article 28 of the Articles of Associat lar as of the Paragraph 482 of the said volume of states” sbury’s Laws and “When, as is usual f articles of a on t the instrument of transfer shall be executed or si th the transferor and the transferee, non-execu on by only makes the transfer irregular and not a nulli tv, if it has been acted upon for a long od, it cannot impeached. II Two of the authorities given in support of that proposit law s CUNNI NGHAME v. CITY OF GLASGOW BANK 1879 4 A.C. 6 71 H.Li RE PARADISE MOTOR CO. LTD. 1968 2 AER 625, C.A. In Cunninghame’s case, A, one of five trustees appo a marriage contract, signed with his co-trustees a note the purchase of stock in a joint stock banking company of unl ted iability. By the authority of the law agent of the trustees 1 acting on the note of approval, all the names of the trustees appeared in the transfers as accepting the stock, and in ster of members of the company. A did not sign t trans r, but he signed a subsequent letter to the company authoriz the payment of dividends. The company was wound UPI and A and s cotrustees were placed on the list of contributories as personally and individually liable for calls. In a petition at the instance A for rectification of the register and list of cont ories; House of Lords held, affirming decision of the Court be ow, A had authorised his name to be Dlaced on ster. trustees were liable in solidum for the whole st, and not pro rata parte for one fifth part only. distinguished Lord Chancellor, rns, who 1 udgment of the Court stated at page 611 as fol “The only thing that can be suggested as not present is the formal imposition of a signature by llant to t deed of transfer. That, my Lords, seems to me to the purest form, the merest ceremony, and want it can no substantial operation whatever in the present case . In RE PARADISE there was a similar requirement Article 8 of the Company’s articles of association that a transfer of s had to signed by both transferor and trans and had to attested; by Section 75 of the Companies Act 1948 it was not 1 to ster a transfer unless a proper trument of transfer was ivered to the company. In that case there was a sory 1 dation of a company and one of the questions which arose was her there had been an effective qift by W of 350 s the company to his stepson J. The transfer did not name transferee it bore a signature purporting to be that of J and J he had signed it. Judge accepted evi of J that he did not execute the transfer. The Court of Appeal held that the phrase “porper instrument lJ in Section 75 of the Companies Act meant an instrument such as would attract stamp duty not an instrument complying with every lity required by the articles of association; and having regard to the lapse of time the circumstances, the failure to procure the execution of the transfer of the 350 shares by J amount only to an irregularity, and W had made an effective gift/ so far as it lay in hiw power to do so, of the 350 shares. In support of her submissions learned Counsel t re rred to Exhibit F which is an agreement tween ammer Holdings Ltd., a Canadian company, of first Cram of the second parti and WINDJAMMER LANDING COMPANY LTD., Bahamian Company, of third part. The was executed on July 3, 1987 by all three parties. The e reads as lows: “Whereas Don and David decided to cert property known as the Waltson Property Property in St. Luc and ammer to incorporated for the purposes of out such 1 through its wholly-owned subsidi WlnClammer ted, a corporation duly incorporated 17, 1987 pursuant to the laws of the State of St. Lucia (‘wlnclammer Saint Luc ‘); Now THEREFORE THIS AGREEMENT WITNESSETH” etc. In my judgment this memorandum of agreement is an cation t Bahamian Company has acted on t transfer of s recognised itself as being owner of the two s issued the Sa Lucia company. On the authority of the judicial dicta referred to above I hold the non-execution of the trans r by Bahamian Comoanv s not render the transfer void and of no effect as all restone. Opposant has fortified its position by reference to Article 80 of the Commercial Code; paragraph 140 of Volume 7(1) of sbury’s Laws of England; and a reference to page 284 of 5th edit Gower’s company law. These authorities were to the effect that no outsider can purport to take advantage of member with the provisions of the article. Gower is a quotation by Astbury J in HICKMAN 881 at page 897 that non compliance by a In the passage from v. KENT 1915 1 Ch. II An outs to whom s to articles in s as outs subsequent becomes a , cannot sue on treat them as contracts If S.” Plaintiff/Judgment tor no to ss I think I have ready touched on non strat of transfer within t Article 110 Commerci Code. I with submission by I Counsel lure to ster rument trans idate the transfer. s s seems to be case of RE ROSE: ROSE 1 AER 1217 C.A. In v. INLAND REVENUE COMMISSIONERS 5 case trans loned by both trans t as ‘s regulat The issue to its stration. Dates were or not the and Revenue ss success ir claim estate duty s Mr. Rose. trans concerned to execut I Part between March 30, 1943 and I 5, 1943. The trans were not stered until June 30, 1943. to Act all the shares would be I e to estate April 10, 1943 been a bona f soos purport to operate as gi s Court of Appeal held that the I In hlS to divest himself of the shares and to vest transferees and the transfers were ef as the Deceased and the transferees to divest the deceased of fi ownership and to constitute the transferees the benefici owners the shares; the circumstances that the trans must, to perfect the legal title, apply for and obtain registration, not prevent the transfers from so operat and t stration the Deceased was the trustee the trans rees of legal estate int he shares whi still rema and t fore, the gift of the benefici interest t s made and completed prior to April 10, 1943 and no estate was exigible. Paragraph 40-05 of the 24th edition of Gower’s Company Law states t once the contract has been entered o transferee has an table title to the shares and the transferor then, unt stration, as trustee for the transferee. For the reasons given above I smiss the writ of execution filed the Plaintiff/Judgment Creditor with costs of $500. to Opposant. A.N.J. MATTHEW Puisne Judge