Henderson J
1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 HOLDEN AT GEO 3 4 5 6 7 BETWEEN: 8 9 (1) ZUBLIN 10 11 SUCURS 12 13 14 OURT OF THE CAYMAN ISLANDS RGE TOWN, GRAND CAYMAN CA CHILE INGENIERIAL Y CONSTRUCCIONES LTD. IN GENIERIAL Y CONSTRUCCIONES LTD. AYACRU USE NO. 370 OF 2006 TDA (1) ALBERT 15 AND: 16 17 (2) FADIAN 18 (3) ATLANT 19 20 21 22 23 24 Appearances: 25 26 27 28 29 30 31 Before: 32 33 FORSYTH (also known as ALBERT FORSYTH SANERI DE FORSYTH & SECURITY BANK Mr. Graeme Halkerston and Mr. Jonathan Tarbor Plaintiffs Mr. Neil Timms instructed by Mr. Steven Barrie of both for the First and Second Defendants Mr. Matthew Crawford of Maples & Calder for the Hon. Justice Henderson (2) ZUBLIN 14 Defendants on of Appleby for the Nelson & Company Third Defendant 34 Heard: 35 36 37 38 39 40 41 I have two ap- production of
order compell- 43 Ruling - Zublin Chile etc. et al July 30th, 2007 RULING immoses for the charity Bank, and for an s to interrogatories. Page 1 of 5
concluded and said during argument that the application of the interrogation be, that request must be viewed as a fishing expedition fair and expedient resolution of the jurisdictional issue. The plaintiffs in to compel responses ation, which I will and not one calculated nor to defendants, it is alleged that approximately their parent or at the third de- in paragraph diverse dates It is alleged that knowledge, the a claim that the US $12 million was embezzled by the co-conspirators. company. The plaintiffs say that approximately US $16 mill was "routed" to an account in the name of Mr. Forsythe Fendant, the Atlantic Security Bank. Payments to that fund was between 1999 and 2002. at the pursuit of its receipt of the said funds and upon re- ception of the bank became (or will become) a constructive trustee as $1.6 million US is impressed with a constructive trustee as from the plaintiffs and million of the to the and/or his wife bank are particularized have taken place on being the requisite of the hands. There is in favour of the 18 plaintiffs. 19 20 5. Leave to serve 21 review inter pa 22 Ruling - Zubin Chile et. al. out was obtained ex parte. The application set for Services of that order. Abbreviations: psych. etc. al 30.07.07 September, 2007 is a Page 2 of 5
1 6. The first and 2 leave should 3 subrules (i) of 4 evidence of a 5 constructive 6 basis for main 7 last September second defendants have, by their summons of March 6 not have been granted. They say the claim cannot be sh (j) of Order 11, Rule 1; that is, they will argue that the proprietary right in movable property or a claim to the trust established under Cayman Islands law. They say that the claims now and there was no reasonable bar tr. h, 2007, argued that own to fall within re is not sufficient benefit of a there is no reasonable basis for mitigating them 8 9 7. The affidavit 10 which are im- 11 "Neith- 12 leave 13 in any 14 belief 15 jurisd 16 17 8. Thus, the pla- 18 are impressed 19 such funds ex- 20 anted by Mr. Forsythe advances a number of consis- in support by Mr. Forsythe advances a number of consis- tant or even relevant) but, critically, says this at para- ter I nor my wife have or had at the time of the application any assets in the islands as alleged by the plaintiffs who event, to be frank about the facts giving rise to their p that there were any such assets. Consequently the conclusion under GCR O.11, r. 1(1) (i) or (j)." tiffs assert through their pleading that the bank has fund- ward constructive trust and the first and second def- istor did exist when the action was commenced. That 20 with the intention of derations (not all of fallen, reported had no ids on deposit which date any that any is the context for the 21 issuing interv- production of 22 question conclu- 23 24 9. The plaintiffs 25 (Court of Ap- 26 determine wher Ruling - Zubin Chile etc. et al. in be decided in September.) The failure for the defendant to the requested documents is necessary to resolve the remaining jurisdiction. cite Canada Trust and others v. Stolzenberg and others, Civil Division). That decision establishes that, on either or not a high court possessing inherent jurisdiction A. Forsythe ic. et al 30.07.07 an application to n has jurisdiction over Page 3 of 5
1 a particular act 2 the resolution 3 these islands. 4 noted, the need 5 will be ordered 6 that the docum- 7 ent and necessary for a statement of law in similar decisions has Any such disclosure is entirely satisfied 8 10. In the instant given the nature 9 fraud; and give 10 jurisdiction is 11 expeditious re- 12 the form requ- 13 14 15 11. I am prepared 16 between this 17 to the present case, given the generality of the anticavity evidence of re- of the allegations in the amended statement of claims. fact that the requested documentation is likely to due one way or the other, I do consider it necessary for use one way or the other, I do consider it necessary for the dissolution of this issue to order some disclosure. The dis- tested, which goes well beyond what is needed. solution, of this issue to order some disclosure. The dis- tribution of all documentation evidencing the trust and bank and Mr. and Mrs. Forsythe during the period from date. I am not prepared to accede to the request for decree by Mr. Forsythe, i.e. a large-scale be conclusive of the the fair and closure cannot be in the state of accounts September 6th, 2006, cumenation stretching 18 back to Janua- 19 accounts in the 20 21 22 23 Ruling - Zublin Chile etc. et al. a. A. Forsyth etc. et al 30.07.07 b. Assarily limited to action relating to an Page 4 of 5
1 12. account which 2 Mr. or Mrs. F. 3 4 13. The balance of 5 Dated this 30th day of 6 the bank has reason to believe is beneficially owned, orslythe should be produced. If the relief sought in the summons of July 9th, 2007, is dated 10th July 2007 wholly or in part, by dismissed. 8 9 Henderson, J. 10 Judge ofthe Grand Court Ruling - Zubin Chils etc. et al . A.R. v. Zubin Chils etc. et al 30.07.07 Page 5 of 5