In the Matter of DFLM Management Ltd - Reasons for Decision

¶ IN THE GRAND FINANCIAL SE IN THE MATT AND IN THE M IN OPEN COURT Appearances: COURT OF THE CAYMAN ISLANDS RVICES DIVISION CAUSE NO: FSD 14- OR OF THE COMPANIES LAW (2018 REVISION) ATTER OF DFLM MANAGEMENT LTD Trib. Mr Neil Timms QC and Mr Olivaire Water, 2 OF 2018 (IKJ) Attorney-at-Law, Before: Heard: Date of Decision Reasons Circular Reasons Delivered for the Petitioner Mr Jeremy Snead of Appleby, for the Respond- Mr. Mark Goodman and Mr. Jeremy Durston behalf of the Company The Hon. Justice Kawaley 10 September 2018 10 September 2018 edt: 25 September 2018 edt: 26 September 2018 HEADNOTE Member’s just as modest local or proportionate to a d equitable winding-up petition-summons for directions-estauranti-overriding objective-importance of parties’ imper commensurate with the financial position of all parties. REASONS FOR DECISION In view of the matter of DFLM Management Ltd - FSD 142 of 2018 (IKJ) Reasons 1
Background

¶ [1] The Petit- husband in the shop exercise running of The Petit- members

¶ [2] The Com- size) was operated under is the Administratrix of the estate of her late brother, wife of the Respondent. She complains that it is clear that she res of the deceased and both be registered as a 50% sharehold rights which the deceased exercised in terms of active in the business. The Company and the Respondent, in part, claims just and equitable relief also or alternative tip and control of the Company. party accepts that the business (a local restaurant of company) jointly run by the deceased and the Respondent and that is a quasi-partnership. The Respondent adopted a more con- no was the former s entitled to stand der and, inter alia, volvement in the at least, disagree, rounds related to particularly modest the Company was position. Rather than simply at the pre- determining the need for partners.

¶ [3] Both the costs a c tactically persuaded summarily role to p shareholder. Directions ordered

¶ [4] The following grant the standard directions sought by the respondent as impting of the Company’s counsel I explored the viability of what potentially might have been a threshold issue, not an elaborate and expensive contested hearing of the Petit whether or not a quasi-partnership survived the death of Company and the Respondent expressed concerns about concern which it was difficult to avoid suspecting the Petit exploit. Nonetheless, at the end of a two hour hearing me that there were no potentially decisive issues which could at the outset and I accepted his submission that the Company in a dispute which was, properly characterised, also ed- ving directions were ordered. matter of course, ch would obviate the need to control one was eager to Mr Timms QC ld be determined any had no active dispute between

¶ [3] The Company be treated as the subject-matter of the present participate in the proceedings save for the purpose of The proceeding be treated as an inter parties proceed Fetitioner as a member of the Company and the Respondent, the Company as Respondent. The Respondent be served with the Petition, such service been effective as of 10th September, 2018 for the purposes pursuant to the matter of DLML Management Ltd – FSD 142 of 2018 (K&J) Reasons 2
4.

¶ [7] The Petition shall not be advertised. Evidence be given by affidavit and the Respondent, intervening parties shall serve any affidavit upon which it did not give notice of this Order. The Company shall not object to the disclosure by the information or documents obtained in her capacity as a with notice of these Petition they shall and any other they rely within 21 the Respondent of its director of the

¶ [11] Company. The Petitioner shall serve any affidavits in reply upon which it A hearing for further directions including direction inspection and cross-examination shall be listed as so thereafter as shall be convenient to the parties and to the Notwithstanding the presentation to the Court on 1st August, 2018 (the “Law”), or any other provision of the applicable law, in the event that an order for the winding-up is made. The Company’s costs of the Petition (up to and including which she relies s for discovery, on after 21 days Court, August 2018 of the dingary course of sidities Law (2018 law or any other p of the Company today’s hearing)

¶ [5] However matter how may be put out of its assets as are expensed incurred in the life of its business within the meaning of paragraph 10 of this The costs of and incidental to this summons shall be rese-

¶ [14] also strongly encouraged the parties to pursue a commercial intellectually enticing the interesting legal issues raised by In view of the matter of DFLM Management Ltd – FSD 112 of 2018 (IKJ) Reasons 3 Ordinary Course Order. served.” trial settlement. No if the Petition may
be, the Court to ensure

¶ [6] I indicate This is not to place a pursued to commerce. The parties’ duty that I would give reasons for my decision which I now, with a view to elucidating any issues of legal principle or in record my strong conviction that this is a case which can trial but, rather, is one which cries out for a pragmatic ‘win-ally-driven resolution. to assist the Court to achieve the overriding objective.’ The briefly, provide. practice, but solely not justly be fully “win” out of court

¶ [7] The press emotional involved in sophisticated presumed disputes. divorced. livelihood by her for doubles. Her view

¶ [8] The global legal dispute passionate of the case has the classic ingredients for the matter, plainly and in an uncommercial manner. Most importantly, it is substantial sums of money. The Company is not an insurance company to bring only cold commercial logic to the process of restoration. The Respondent and the Petitioner’s late brother were They continued to run the Company together, assisted to her parents. The Respondent is reportedly dependent on the and Will likely be extremely anxious about the pension as to what her interests in it should be will also likely be a mere marital relationship with the deceased. The Petitioner, wishes to do right by her late brother and achieves a fair result of a just outcome will likely be heavily influenced by those legal landscape is littered with examples of ‘family’ court involving modest financial sums being run, on the protagonists themselves, in a manner which ends in “ protagonists themselves, in a manner which ends in “ that a dispute which protagonists to litigate at a dispute which demand vehicle for and who may be living commercial some extent (it is a business for her ent dispute. Her influenced in part on the other hand, very for his estate. familial ties. financial or other instructions of the a vale of tears. court.” effective). it provides stifled the absolute; important claim. A protective interest in interest can be a powerful tool for the failure of the justice. The overriding objective is designed to cure this mis-must be used in a nuanced manner designed to give each parties’ right to have their day in court. This ancient principle of frivolous claims or defences may be struck out, differentiation of approach to be adopted depending on case involving fundamental rights or liberties may bring a public trial wholly detached from the merits or even if costs orders have recently been deployed in some jurisdises to guarantee the right of access to the court. In view of the matter of DFLM Management Ltd – FSD 142 of 2018 (RJ) Reasons 4 for admission chief, but the tools act to (rather than as to be heard is not there is also an the nature of the into play a public osts. This is why dictions in public
9. Commercial determination of the P the object • •

¶ [10] The Court • • Conclusion

¶ [11] It was for commerce (substanti facilitate I will turn • • giving effect to the overriding objective of the these reasons that I strongly encouraged the parties to a al resolution of this commercial dispute, and gave the only in the terms of those sought by the Petitioner) which an outcome. It is to the case management powers could it be, when this matter next comes before the Court. for the purpose of rules”. pursue a sensible limited directions h I hoped would considered above that HON. MR JUSTICE JUDGE OF THE CE JAN RC KAWALEY GRAND COURT In view of the matter of DFLM Management Ltd – FSD 142 of 2018 (IRJ) Reasons 5