FEDERAL COURT OF AUSTRALIA

Crumpler (as liquidator and joint representative) of Global Tradewaves Ltd (a company registered in the British Virgin Islands) v Global Tradewaves (in liquidation), in the matter of Global Tradewaves Ltd (in liquidation) [2013] FCA 1127

Upon the plaintiffs’ undertaking, by their solicitors, to pay to Mr Mahmood Riaz (Mr Riaz) reasonable conduct money as defined for the purposes of this order:

THE COURT ORDERS THAT:

1.    Pursuant to Art 17 (1) of Sch 1 (the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law – “Model Law”) of the Cross-Border Insolvency Act 2008 (Cth) (Cross-Border Insolvency Act), the proceeding in the Eastern Caribbean Supreme Court in the High Court of Justice, Commercial Division, British Virgin Islands (BVI Court), BVI HC Com Claim No 2013/0090, (BVI Proceeding), by which the plaintiffs were appointed liquidators of the defendant on 23 September 2013, be recognised as a foreign proceeding for the purposes of the Cross-Border Insolvency Act.

2.    Pursuant to Art 17(2) of Sch 1 of the Model Law, the BVI Proceeding be recognised as a foreign main proceeding for the purposes of the Cross-Border Insolvency Act.

3.    Pursuant to paragraph 1(g) of Art 21(1) of the Model Law, and subject to the exceptions for which section 8 of the Cross-Border Insolvency Act provides, all powers available to liquidators appointed under the provisions of the Corporations Act 2001 (Cth) (Corporations Act), be available to the plaintiffs as if they were liquidators appointed jointly and severally under that Act.

4.1     The plaintiffs:

a.    send a notice of the making of Orders 1–3 above in accordance with Form 21 to each person whose claim to be a creditor of the defendant is known to them; and

b.    publish a notice of the making of those Orders in accordance with Form 21 in The Australian newspaper.

4.2    Service of the order on the defendant be dispensed with.

5.    Pursuant to Article 21 (1) (d) of the Model Law and pursuant to section 581 and section 596B of the Corporations Act, each as applied by section 8 of the Cross-Border Insolvency Act and Article 21(1)(g) of the Model Law, the Registrar summon Mr Riaz to attend in Brisbane, Queensland for examination on oath before a Registrar about the examinable affairs of the defendant at a time fixed by the Registrar and from day to day thereafter until the conclusion of the examination and that Mr Riaz bring with him to such examination for production thereat such books as are within his possession which relate to the defendant or any of the examinable affairs of the defendant as are specified in the summons.

6.    The plaintiffs and their solicitors may at any time after Mr Riaz produces any of the books set out in order 5 above, take custody of the said books for the purpose of preparing for the examination.

7.    The questions put to Mr Riaz and the answers given by him from any such examination be recorded in writing and that a copy of the same be furnished to the plaintiffs by the Registrar.

8.    If the plaintiffs require Mr Riaz to authenticate the transcript of his examination in accordance with the provisions of the Corporations Act as applied by the Cross-Border Insolvency Act and the Federal Court (Corporations) Rules 2000 (Cth) as likewise applied by that Act, he shall attend and authenticate the transcript.

9.    A summons in the form annexed hereto and marked “A” be issued in relation to Mr Riaz.

10.    Costs reserved.

11.     The Registrar send a sealed copy of this order to the Registrar (or other proper officer) of the BVI Court.

12.    Liberty to apply.

Note:     For the purposes of this order, “reasonable conduct money” is a sum not less than conduct money that would be payable under rule 6.18 of the Federal Court (Bankruptcy) Rules 2005 (Cth), were those rules applicable to the examination of Mr Riaz, on the basis of return economy class air travel from his residence in Sydney to Court in Brisbane for the purposes of examination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        Messrs Russell Crumpler and Alex Lawson have been appointed by the Eastern Caribbean Supreme Court’s High Court of Justice, the British Virgin Islands Commercial Division (the BVI Court) as the liquidators of Global Tradewaves Limited, a company registered in the British Virgin Islands. The British Virgin Islands is a British Overseas Territory of the United Kingdom.

2        Messrs Crumpler and Lawson, in their capacities as liquidators and thus as “foreign representatives” for the Cross-Border Insolvency Act 2008 (Cth) (Cross-Border Insolvency Act) have applied for orders that the winding up proceeding in respect of Global Tradewaves in the BVI Court, namely BVI HC Com Claim No 2013/0090 (BVI proceeding) be recognised as a foreign proceeding for the purposes of the Cross-Border Insolvency Act. In addition, the BVI Court has issued a letter of request to this court requesting, materially, the examination of one Mahmood Riaz concerning the affairs of Global Tradewaves and the production by him of related books, records and other documents in his possession or control.

3        Upon the footing that the Court recognises the BVI proceeding as a foreign proceeding and more particularly as “foreign main proceeding” for the purposes of the Cross-Border Insolvency Act, the liquidators have sought consequential interlocutory relief for the issuing of a summons for the examination of Mr Riaz concerning the affairs of Global Tradewaves and the production by him of related books, records and other documents.

4        It is convenient, first, to consider the question of recognition. As to this, s 6 of the Cross-Border Insolvency Act provides that, subject to that Act, “the Model Law, with the modifications set out in this Part, has the force of law in Australia.” The “Model Law” is defined by s 5 of the Cross-Border Insolvency Act to mean “the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law set out in the Annex to the United Nations General Assembly Resolution A/RES/52/158 (1997), the English text of which is set out in Schedule 1 to this Act”.

5        In respect of corporations, this Court is one of those which, by s 10 of the Cross-Border Insolvency Act, is taken to be a court specified in Article 4 of the Model Law as a court competent to perform the functions referred to in the Model Law relating to recognition of foreign proceedings and cooperation with foreign courts. Article 17 of the Model Law is directed to the recognition of a proceeding as a foreign proceeding and, as the case may be, in turn, either as a foreign main proceeding or a foreign non-main proceeding. It provides:

Decision to recognize a foreign proceeding

1.    Subject to article 6, a foreign proceeding shall be recognized if:

(a)    The foreign proceeding is a proceeding within the meaning of subparagraph (a) of article 2;

(b)    The foreign representative applying for recognition is a person or body within the meaning of subparagraph (d) of article 2;

(c)    The application meets the requirements of paragraph 2 of article 15;

(d)    The application has been submitted to the court referred to in article 4.

2.    The foreign proceeding shall be recognized:

(a)    As a foreign main proceeding if it is taking place in the State where the debtor has the centre of its main interests; or

(b)    As a foreign non-main proceeding if the debtor has an establishment within the meaning of subparagraph (f) of article 2 in the foreign State.

3.    An application for recognition of a foreign proceeding shall be decided upon at the earliest possible time.

4.    The provisions of articles 15, 16, 17 and 18 do not prevent modification or termination of recognition if it is shown that the grounds for granting it were fully or partially lacking or have ceased to exist.

6        “Foreign proceeding” is defined by Article 2 of the Model Law in this way:

"Foreign proceeding" means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation;

7        “Foreign main proceeding” and “foreign non-main proceeding” are respectively defined by Article 2 as follows:

"Foreign main proceeding" means a foreign proceeding taking place in the State where the debtor has the centre of its main interests;

"Foreign non-main proceeding" means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of subparagraph ( f ) of the present article;

8        The evidence establishes that the BVI Court is presently, via the winding up order it has made and the appointment of the liquidators as joint and several liquidators of Global Tradewaves, controlling and supervising the winding up of that company. That winding up proceeding is, in my view, a collective judicial proceeding in a foreign state for the purposes of the definition of “foreign proceeding” in Article 2 of the Model Law.

9        The content of British Virgin Islands insolvency law so far as that winding up proceeding is concerned is to be found in the Insolvency Act 2003 (British Virgin Islands) (Insolvency Act 2003). An electronic copy of that Act is exhibit 1 in these proceedings, (the contents of that Act for the purposes of the exhibit being conveniently described by a paper reproduction of the table of contents of that Act). As so produced and tendered, I regard that electronic version as evidence of that statute admissible pursuant to s 174 of the Evidence Act 1995 (Cth). Further guidance as to British Virgin Island insolvency law and practice and to the interpretation of its Insolvency Act 2003 is to be found conveniently in a publication, Cross-Border Insolvency II: a Guide to Recognition and Enforcement, published by the International Association of Restructuring Insolvency and Bankruptcy Professionals, 2012. That appears to me to be a book which would be used by the courts in the British Virgin Islands as a convenient summary of insolvency law and practice in that locale. One sees by reference to the Insolvency Act 2003 and that book that there is in place in the British Virgin Islands a statutory regime for the winding up of corporations which has broad analogies with the Corporations Act 2001 (Cth) so far as provision for a court order for winding up, appointment of liquidators for that purpose and provision for the examination of those having knowledge of the affairs of the company being wound up.

10        The evidence also establishes that the registered office of Global Tradewaves is in the British Virgin Islands. I am satisfied that it is in the British Virgin Islands that Global Tradewaves has its centre of main interests. That being so, the BVI proceeding is not just a foreign proceeding but also a foreign main proceeding. There is no evidence of any body of creditors in Australia, at least on present materials, in respect of Global Tradewaves. It is not necessary for the purposes of these proceedings, given the existence of a registered company office in the British Virgin Islands, the absence of any evidence of the carrying on of business in Australia or elsewhere than these or any other evidence to displace the presumption I the Model Law, to consider whether the identification of a company’s centre of main interests for the purposes of the Model Law or the rebuttal of the presumption can only be established by evidence which is objectively ascertainable by third parties, cf. Gainsford v Tannenbaum (2012) 293 ALR 699, especially at paragraph 46.

11        In terms of formal requirements arising under the Cross-Border Insolvency Act, rules of court and an earlier order made by me on 16 October 2013, the existence, formally, of the BVI proceedings is proved by a notarised and sealed copy of the winding up order made by the BVI Court in respect of Global Tradewaves. Publication of the proceeding in newspapers has occurred as required by the Court’s order of 16 October 2013. There is evidence which establishes that for the purposes of s 13 of the Cross-Border Insolvency Act there are no proceedings under chapter five or section 601CL of the Corporations Act in respect of Global Tradewaves.

12        Further, the evidence establishes that there are not, at present, other foreign proceedings concerning Mr Riaz. The liquidators have in their evidence candidly deposed that there may shortly be proceedings concerning Mr Riaz, also instituted in Dubai in the United Arab Emirates. Mr Riaz’s connection with that country I will refer to shortly. So far as the British Virgin Islands itself is concerned, it will also be necessary later in these reasons for judgment to make some reference to its status, at least insofar as can be ascertained from materials presently before the Court and also facts of which I consider I can take judicial notice.

13        Thus, the liquidators appointed by the BVI Court are, for the purposes of the Cross-Border Insolvency Act and the Model Law, foreign representatives. The liquidators have the benefit of the presumption found in Article 16 of the Model Law so far as recognition is concerned. In other words, because the registered office of Global Tradewaves is located in the British Virgin Islands, that place is, having regard to Article 16(3) of the Model Law, presumed to be the centre of that company’s main interests. That the BVI Court is a foreign court is a given.

14        Further, for the purposes of the Model Law the British Virgin Islands is, in my view, to be regarded as a state. Its status is that of a British Overseas Territory. Inferentially, on the face of the Insolvency Act, the British Virgin Islands has its own legislature. Further, on the basis of the orders and other materials in evidence from the Eastern Caribbean Supreme Court’s High Court of Justice in the British Virgin Islands, the British Virgin Islands has its own judicial system. The ultimate appellate court for that judicial system is the Judicial Committee of the Privy Council: see, for example, by way of the exercise of that ultimate appellate jurisdiction, Creque v Penn [2007] UKPC 44. A helpful summary of the position so far as insolvency law and the court system of the British Virgin Islands is concerned is to be found in Re Mount Capital Fund Limited (In Liquidation) [2012] IEHC 97 (Mount Capital Fund) at paragraphs 3.1, 3.2 and 3.3 (Laffoy J).

15        Having regard to the foregoing, I am satisfied that the BVI proceeding is both a foreign proceeding and a foreign main proceeding for the purposes of the Cross-Border Insolvency Act and the Model Law.

16        That being so, a question then becomes whether a summons should issue for the purpose of Mr Riaz’s examination?

17        It is necessary first to consider whether the Court has power to issue such a summons or to direct the issuing of such a summons and if so what are the sources of that power. As to this, Article 21 (1) of the Model Law itself makes provision, relevantly, in these terms:

Relief that may be granted upon recognition of a foreign proceeding

1.    Upon recognition of a foreign proceeding, whether main or non-main, where necessary to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief, including:

[…]

(d)    Providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor's assets, affairs, rights, obligations or liabilities;

    […]

(g)    Granting any additional relief that may be available to [insert the title of a person or body administering a reorganization or liquidation under the law of the enacting State] under the laws of this State.

As to Article 21(1)(g) of the Model Law, s 8 of the Cross-Border Insolvency Act provides:

Identifying Australian laws relating to insolvency

The Model Law has the force of law in Australia as if the Model Law referred to:

(a)    the Bankruptcy Act 1966 ; and

(b)    Chapter 5 (other than Parts 5.2 and 5.4A), and section 601CL, of the Corporations Act 2001;

wherever the Model Law provides that the laws of the enacting State relating to insolvency are to be identified.

18        It is to be remembered that the effect of s 6 is that, subject to the Cross-Border Insolvency Act the Model Law has the force of law in Australia. That being so, my view is that, by virtue of that Act and as made part of the law of Australia, Article 21 (1)(d) is itself a source of authority for the Court to order the examination of a witness concerning a company’s “assets, affairs, rights, obligations or liabilities” and to produce to the Court on such examination “information” concerning those subjects. Read with section 8, Article 21(1)(g) provides for this incorporation, by reference of the nominated provisions of the Corporations Act and is a further source of power to summon a witness and order the production of documents concerning the affairs of a company in liquidation.

19        Finally, and having regard to the letter of request, s 581 of the Corporations Act is, in the circumstances of this case, an additional source of relevant power. The British Virgin Islands is not in my view a prescribed country for the purposes of s 581(2) of the Corporations Act. The United Kingdom is, but the reference in the Corporations Regulations 2001 (Cth) (Corporations Regulations) to the United Kingdom does not, in my view, carry with it British Overseas Territories. Some indication of that is to be found in the separate prescription in the Corporations Regulations to the Bailiwick of Jersey, a territory of which Her Majesty the Queen exercises sovereignty in her capacity as Duke of Normandy. That suggests to me that the reference in Regulation 5.6.74 is intended to be a reference solely to the United Kingdom rather than to other places for which the United Kingdom has responsibilities.

20        In this particular case it is not necessary further to explore that subject. That is because there is in evidence the letter of request which I have mentioned. For the purposes of s 581(3) of the Corporations Act the British Virgin Islands is, in my view, to be regarded as a country other than Australia. It is a court which has, as I have mentioned, a recognisably similar insolvency jurisdiction to that exercised by this Court. It is, in my view, a court in respect of which this Court, as one having jurisdiction in matters arising under the Corporations Act, should act in aid of and be auxiliary to, so far as the administration of Global Tradewaves is concerned. I note that the Irish courts have a similar disposition to act in aid of the insolvency administration of the Courts of the British Virgin Islands, see Mount Capital Fund.

21        The question then becomes whether or not the powers which I have described should be exercised? As to this, there is in evidence an extract search of the records of the Australian Securities and Investments Commission (ASIC) in respect of a company termed GTL Tradeup Proprietary Limited, ACN 145 955 906. That establishes that Mr Riaz is a current director of that company and that he has a residential address at Strathfield, in New South Wales, Australia.

22        Further evidence of Mr Riaz’s Australian residency is provided in a bundle of emails which form part of the liquidator’s evidence. In an email of 26 June 2013, addressed to multiple addressees under the subject Global Tradewaves Limited, Mr Riaz advises, at paragraph 4:

This year, when I decided to moving [sic] to Sydney full time to look after my family business, I found a new partner who could inject the capital in GTL-BVI and turn around the company with his own vision. I agreed to give him full control of Global Tradewaves business to give him some extra comfort level and I resigned being director of Global Tradewaves, however, I have been under the contract with the new management that I will continue providing them my assistance wherever they require. [Sic].

That “new investor” would seem to be one “Ahmad Darwash”: see an email from Mr Riaz to a Mr Mikkel Thorup of 7 March 2012.

23        The email bundle contains an extensive exchange of correspondence relative to funds apparently placed with Global Tradewaves by Capricorn Currency Management (Cayman), a company carrying on business in the Cayman Islands, of which Mr Thurrup is the chief investment officer. It suffices for present purposes to record that I am well satisfied, having regard to that exchange of email correspondence, that Mr Riaz is a person likely to have an intimate knowledge of the affairs of Global Tradewaves. That is so even though, on the face of the email exchange, Mr Riaz asserts that he has resigned from the directorship of that company. It is not necessary for the purposes of today’s proceedings to determine whether or not Mr Riaz is or is not what might be described as a “shadow director” of Global Tradewaves. It is not necessary so to decide because the power conferred by Article 21(1)(d) is not restricted to directors, either actual or shadow, but extends to “witnesses”.

24        Further, insofar as its provisions are available by the Cross-Border Insolvency Act, the Corporations Act by s 596B empowers the Court to summon a person for examination about a corporation’s examinable affairs if satisfied that the person may be able to give information about examinable affairs of the corporation. I am, having regard to the email exchange and to the contents, of which I have referred generally already, well satisfied that Mr Riaz is such a person. As was put on behalf of the liquidators by Mr Goodwin of counsel in his helpful and careful submissions, there are reasons, why the court would not reach a concluded view as to Mr Riaz’s status in terms of office holding in Global Tradewaves at this present juncture. The proceeding is one of an ex parte nature. Axiomatically, Mr Riaz has not been heard on the subject, neither has there been, as yet, any examination of him. These factors tell that as a matter of prudence, 596A should not be regarded as a source of power.

25        Finally, if articles 21(1)(d) and 596B as applied by the Cross-Border Insolvency Act were not themselves sufficient, s 581 in the circumstances of the present case provides itself power to order the examination of Mr Riaz and to order him to produce documents concerning the affairs of Global Tradewaves.

26        The earliest availability of a registrar of the Court at least for the purposes of commencing an examination, is in Brisbane rather than Sydney. That being so, and my being firmly of the view that it is necessary to make early provision for the commencement of an examination, I propose to order that the examination be conducted, at least in the first instance, in Brisbane. I put matters that way because I did not in any way intend to foreclose the possibility of the conduct of an examination, if demonstrated to be more convenient, continuing before the Court in Sydney. It is though, in light of that provision for an examination in the first instance in Brisbane, to make provision to ensure that Mr Riaz is not disadvantaged. That, in my view, will be sufficiently met by requiring the liquidators to provide him in advance with conduct money, including travel expenses not less than those which would be applicable in the event that the examination were one to which the Federal Court (Bankruptcy) Rules 2005 (Cth) applied.

27        I note that the liquidators by their solicitors have given an undertaking to the Court to provide Mr Riaz with such conduct money. That conduct money will include provisions of a return economy class airfare from Sydney to Brisbane.

28        I propose to reserve the costs of the examination. Obviously enough, I am not exercising jurisdiction of the jurisdiction of the BVI Court. It is, in the first instance, in my view, for that court to determine the expenses properly incurred in the course of a BVI winding-up proceeding. I do no more than observe that the present application, both for recognition and consequentially for the examination of Mr Riaz, seems to me on the evidence to hand to be a logical, reasonable and necessary step in the winding up of Global Tradewaves.

29        I shall also direct the registrar of this Court to furnish to the registrar or other proper officer of the BVI Court by way of response to the letter of request, a copy of the orders that I propose to make today.

30        Finally, I propose to reserve in those orders liberty to apply in the proceeding as one in respect of which there may well be need for further orders, either in respect of the transfer of an examination to Sydney or, for that matter, by way of ancillary relief arising from the issuing of a summons in respect of ensuring if Mr Riaz is in Australia, that he remain here. Further, the liquidators may have a need for information held in official records concerning Mr Riaz’s movements. These are but contingencies on the face of the material filed. I do not in any way, by reference to them, intend to be prescriptive as to applications which may be made under liberty to apply. I refer to such matters solely because, on the evidence to hand it appears that, though Mr Riaz has a Sydney residence, he also undertakes business activities in Dubai. That doubtless informed the reference by the liquidators to the possibility of proceedings concerning Global Tradewaves and his association with that company being commenced in Dubai.

31        There will be orders accordingly.

Associate:

Dated:    6 November 2013