Mangatal J
THIS RULING IS RELEASED FOR PUBLICATION BY ORDER OF THE COURT OF THE CAYMAN ISLANDS AND COURT OF THE CAYMAN ISLANDS L SERVICES DIVISION CAUSE NO.: FSD (1) DAVID JAMES BENNETT (2) TSZ NGA GEORGIA CHOW (1) XIE ZHIKUN THE COURT ON 17 OF 2018 (IMJ) Plaintiffs Appearance on behalf of the Plaintiffs Mac Inrie, Colin McKie QC and Paul Smith Calder on behalf of the First Defendant Paul Smith and Spencer Vickers of Conyers L on behalf of the Second Defendant CAUSE NO.: FSD : DORSEY VENTURES LIMITED Defendants Grant Ozannes of Maples and ill & Pearman 38 OF 2018 (IMJ) Plaintiff AND AND Appearance 181031 Bennett and Chow v. XIO GP LIMITED (1) XIE ZHIKUN (2) FORTUNE FAVORS HOLDINGS LIMITED (3) SHENGSHI VIEW INTERNATIONAL HOLDING on behalf of the Plaintiff Christopher Levers and Jessica Vickers of Ms. Ex Tempore Ruling 181031 Bennett and Chow v. XIO GP Limited v XIE ZHIKUN Page 1 of 5
THIS RULING IS RELEASED FOR PUBLICATION BY ORDER OF THE COURT ON 21 FEBRUARY 2019 Paul Smith and Spencer Vickers of Conyers I on behalf of the Defendant Mac Inrie, Colin McKie QC and Paul Smith Calder on behalf of the Interveners The Hon. Justice Mangatal 31 October 2018 THE COURT ON Bill & Pearman of Maples and 1 The pend- judge 2 The the p corro- 3 It is the Coun- NOTE OF TEMPORARY RULING 31 OCTOBER 2018 applications before me in FSD 17 of 2018 and FSD 38 of long the appeals respectively filed by Ms Li and XIO GI- judgments largely concern questions of contractual con- provision of information arising from what this Court has de- duct construction of the relevant provisions. scription on all sides that the principles upon which the Coun- trant of a stay of execution pending appeal is set out in se- of Appeal Law (2011 Revision), and are discussed in the 2018 are for stays in respect of the destruction as well as determined to be the art should consider section 19(3) of the decision of Justice Cress (Cay) ser- Cayn para- 4 At p. "In re 181031 Bennett and Chow v. Well in Heriot African Trade Finance Fund Limited,
1 CILR 34, in particular at paragraph also the recent decision of the Court of Appeal in St. Trafalgar Monetary Authority (Unreported, 21 graphs 33 to 39. graph 22 of Heriot, Justice Cresswell stated as follows: y opinion, the relevant legal principles are as follows: (a) ...section 19(3) provides so far as mater- execution... shall be granted upon any judgment ie granted at FSD 17 of 2018 (IMJ) and Dorsey Ventures Limited v XIO GI- Ex Tempore Ruling v Deutsche Bank h 22. One should refer Vantage Inc v September 2017). al: "No stay of appealed against Limited v FSD 38 of 2018 (IMJ) Page 2 of 5
THIS RULING IS RELEASED FOR PUBLICATION BY ORDER OF THE COURT 21 FEBRUARY 2019 save... upon good cause shown to the Court Court"; (b) the critical test is whether good cause has been (c) the onus is upon an appellant to show good reasons) for the imposition of a stay pending ap- proach, in considering whether good cause has been st have regard to all the circumstances of the case limitation: THE COURT ON or to the Grand shown; d cause (ie., good deal; over time court will including without 5 In my (i) whether the appeal would be rendered if not granted (Wilson v Church 12 CH 307) (ii) whether the appellant can show a good (iii) whether the appeal is in exercise of a and not for some collateral purpose; (iv) the balance of convenience (see O Petroleum Co., 1997 CILR N-4); and ... (f) the question whether or not to grant a stay discretion of the court; and indications in past cases do not fetter the se discretion." judgment a stay should be refused in both of these two s at 458 -459); gatory if a stay is (i) trouble case; due right of appeal quintin v Phillips is entirely in the opposition the court's suits. 6 I am on the obvi- a fla- reali- certi- critic- view of co- 181931 Bennett and Chow v not satisfied that the applicants respectively have demon- strated good cause in I appreciate that been arrived at on is a good, even a I have construed construction. The veiy weak, in my to appeal - which Limiting Order of the Court Page 3 of5
THIS RE- 7 I am be r the s with ING IS RELEASED FOR PUBLICATION BY ORDER OF 21 FEBRUARY 2019 also not satisfied that, viewed carefully and holistically, ordered nugatory if a stay is not granted. As pointed out, submissions on behalf of Mr Xie, it may be that if the judge but later overturned on appeal, there is a risk that: (a) XiO GP may have provided Dorsey with inform- use of the US$70m which it might not have obligation to do so; (b) Mr Xie may have received information regarding having had a strict legal right to that information. THE COURT ON the appeals would at paragraph 23 of ments are complied ation regarding the had a strict legal g the same without 8 How GP is that infor- 9 of in m 9 Imp 10 I do their entar- again ever, this does not mean that if confidential information is Dorsey, and that in turn is disclosed by the independent. Information will no longer be confidential. Mr Xie information he receives from the independent directors confin- the Protocol. Ms Li's assertions about Mr Xie leaking in- view rise to a satisfactory level of proof. portantly, the balance of convenience plainly favours the re- take into account that the applicants have not given any im- elation to comply with the Court's orders, or as to what, est a backdrop that Ms Li and XiO GP refuse to p- It must be remembered that these two cases, ost a backdrop that Ms Li and XiO GP refuse to p- are disclosed by XiO 12 In ac- or ha- 13 In ac- great. There 181031 Bennett and Chow v. issued by professional directors necessitated to provide a corpo- re serious concerns about the general lack of transparency in XiO GP, that runs like a common thread throughout ration, there is a paucity of evidence from Ms Li and XiO friendship that they would be likely to suffer if the stay is refu- editions. In respect of the Protocol Proceedings, that is, diction, in respect of the Protocol Proceedings, that is, it appears to me, against Mr Bennett, er injustice does lie, it appears to me, against Mr Bennett, it is a great risk that they will be unable to properly under- tie 27(4) of al FSD 17 of 2018 (IMJ) and Dorsey Ventures Limited v XiO GP Ex Tempore Ruling. die governance. on the part of Ms these two sets of GP as to any harm ed. FSD 17 of 2018, a ett and Ms Chow. stand the financial Limitation FSD 38 of 2018 (IMJ) Page 4 of 5
THIS RULING IS RELEASED FOR PUBLICATION BY ORDER OF 21 FEBRUARY 2019 ation or position of Dorsey without investigating Dorsey gement. Mr Bennett and Ms Chow will be significantly pending determination of the appeals. This could take a Court of Appeal were to expedite the hearing of the ap- not heard of a particular date being set by the Court of cialing efforts are being made to expedite the hearing. regards the Disclosure Proceedings, FSD 38 of 2018, if they will be deprived of information which I have held in THE COURT ON it's past affairs and prejudiced in their if the judgment is many months, even appeals. Certainly, I Appeal, although I a stay is granted, that it is otherwise entit- uted under US law. 15 All t princ great grant 16 Havi in the 17 As to ed to, and which is required in order for the directors stand the affairs of the Fund, including how the Fund (0 million Dorsey has invested in it. old, looking at the entire evidential history put before me, ples as discussed, there is a greater risk of harm to the er risk of injustice to the Plaintiffs in the respective law ed, than the risk of harm or injustice to the Applicants if the ing regard to all of these circumstances, I refuse the applica- suits respectively, and both filed 26 October 2018. costs. (a) In FSD 17 of 2018: Costs to the Plaintiffs and the of Dorsey to fully has dealt with the and applying the e Plaintiffs, and a suits if the stay is a stay is refused. tions for stay filed the First Defendant, (b) In FSD 38 of 2018: Costs to the Plaintiff and the taxed if not agreed, payable by the Defendant. s 24day of November 2018 ICE MANGATAL THE GRAND COURT The Zafar e al FSD 17 of 2018 (IMJ) and Dorsey Ventures Limited v XIO GI Ex Tempore Ruling Serviced, and Interveners, to be Limited v FSD 38 of 2018 (IMJ) Page 5 of 5