- Flynote
- Company Law|Shareholders|Shares
TWOMEY CJ
Introduction
[1] In brief, this case concerns a takeover bid, the alleged breach of fiduciary duties by the directors of a company and the alleged oppressive conduct by a majority shareholder and directors against a minority shareholder.
[2] By way of background, the parties to this case are as follows: The Petitioner, Natalie Lefevre (hereinafter Ms. Lefevre), is a minority shareholder in the First Respondent, Beau Vallon Properties (hereinafter BVP). Ms. Lefevre acquired 213,280 shares for SCR 1,000,000 in BVP by a blank share transfer form signed on 13 September 2005 and registered with the company registry on 21 May 2007 (exhibit R1-12). The validity of this share transfer was subject to legal proceedings. Pursuant to a Court of Appeal judgment in
Lefevre vs Chung Faye and others (SCA 36 of 2011, SCA 33 of 2011) [2014] SCCA 14 (11 April 2014), Ms. Lefevre’s shares were registered in the member’s registry on 11 April 2014.
[3] The First Respondent is BVP, a Seychellois limited company registered on 10 July 1972. It has the following company number: 840565-1.
[4] The Second Respondent is Drambois Investments Ltd (hereinafter Drambois), a Seychellois limited company incorporated on 5 May 2016 (exhibit R2-1). Drambois and the Third Respondent, Concordia Investments Ltd (hereinafter Concordia) entered into an agreement in October 2016 for the transfer of Concordia’s shares in BVP to Drambois. This transfer has not to date taken effect.
[5] Concordia is another Seychellois limited company and has been the majority shareholder in BVP since 2007.
[6] The Fourth Respondent is Vadim Zaslonov (hereinafter Mr. Zaslonov). He is the secretary and a director of BVP since 6 September 2007.
[7] The Fifth Respondent is Yuri Khlebnikov (hereinafter Mr. Khlebnikov), a director of BVP since 15 August 2013.
[8] The Sixth Respondent is the Registrar of Companies (hereinafter the Registrar).
Pleadings
[9] On 24 April 2017, Ms. Lefevre filed a petition against the Respondents under the Companies Ordinance 1972 (hereinafter the Ordinance) seeking orders from the Court in respect of shares owned by her in BVP and other matters concerning inter alia, her rights as a shareholder. The petition was supported by an affidavit sworn on the same day.
[10] On 21 November 2017, she filed an amended petition. She sought relief for rectification of the Share Register and the Companies Register generally to reflect that she was the rightful and legal owner of 35% of the authorized and issued shares in BVP pursuant to section 107 of the Ordinance in respect of the purchase of BVP shares in 2005 and 2007; in respect of the agreement made between Drambois and Concordia to sell the shares in BVP and the subsequent attempt by Drambois to trigger the provisions of section 200 of the Ordinance to buy her shares; and orders pursuant to section 201 of the Ordinance to protect her minority shareholding.
[11] She sought judgment in her favour and prayed that the Court make the following orders:
(1) An order appointing Halpern and Woolf as inspectors to investigate the affairs of BVP and the conduct of the directors of BVP and to report to the Court;
(2) An order requiring the Respondents and any other person having in his or her possession or control any record, information or document belonging to or relating to the affairs of BVP to disclose the same to the above inspectors and to allow the inspectors to make copies;
(3) An order preventing the disposal of or dealing with any assets including but not limited to any bank accounts or rights in land belonging to BVP until after the investigation;
(4) An order preventing the 1st, 2nd, 3rd, 4th, and 5th Respondents from undertaking further dealings with BVP, more particularly, the shares and assets of BVP and not to incur any new liability on behalf of BVP by taking or giving loans from the capital of BVP until further orders from the Court;
(5) An order declaring any transfer of assets of BVP made without proper authority of the company void and that the assets be returned to the company forthwith; namely the purported shares allegedly sold by Concordia to Drambois;
(6) An order that all persons holding any assets of BVP shall forthwith return the same to the Company;
(7) An order that any person found to have acted contrary to law with regard to the conduct of the affairs of BVP be dealt with as the law prescribes;
(8) An order that Halpern and Woolf value the shares of BVP and that of Ms. Lefevre;
(9) An order for damages jointly and severally against the 2nd, 3rd, 4th and 5th Respondents in the sum of SCR 1,000,000 for inconvenience, distress, anxiety, mental anguish and trauma;
(10) An order that the Respondents are jointly and severally be liable for costs of this petition; and
(11) Any other order as the Court may deem fit in the circumstances of the case.
[12] In the course of the proceedings, the relief sought by Ms. Lefevre evolved. The Court therefore refers to Ms. Lefevre’s final written submissions, received on 11 October 2018, in which Ms. Lefevre sets out the relief sought in preferential order. These are as follows:
(1) That the agreement and purported transaction between Drambois and Concordia be declared unlawful and void and any steps taken to conclude that agreement be declared null and void and set aside;
(2) That Concordia be ordered to sell its shares to Ms. Lefevre on the same terms and conditions as it has stated it was to sell to Drambois;
(3) Alternatively, that the Court declare that Field Nominees Ltd did not have sanction to purchase the additional 5,390,000 shares in BVP, and that these shares are therefore unallocated. Further, that Ms. Lefevre and Concordia are entitled to purchase the unallocated BVP shares in 35% / 65% pro-rata proportions, at the original nominal value of those shares in November 2005.
(4) Alternatively, that the Court order Concordia to purchase Ms. Ms. Lefevre’s shares on the basis of its original agreement with Accredo/Langer in 2007; that is that it pays the equivalent of 18.5% of the total value of the company for Ms. Ms. Lefevre’s shares, such value to be determined by an independent valuation and subject to any provisos, conditions, qualifications or other issues highlighted by the independence auditors;
(5) That BVP and its directors be investigated by the Inspector for Taxes, the Company Registrar [and the relevant Financial Reporting Authority] in relation to its dealings and liabilities incurred towards the various IBC’s and other entities and the source of such loans and destination of such repayments.
(6) Costs.
[13] Following the filing of the petition, the Respondents sought various further and better particulars, the first dated 20 June 2017. On 25 July 2017, Ms. Lefevre filed answers to the request for further and better particulars. An additional request for further and better particulars dated 5 December 2017 was made by the Respondents. Ms. Lefevre provided an initial response to these requests in two separate replies dated 16 January 2018, and in two further replies dated 30 April 2018.
[14] Drambois filed an answer dated 11 May 2018 to the amended petition of Ms. Lefevre. The answer sets out pleas in limini litis. An amended version of this plea was later filed with the Court and is reproduced below. On the merits, the reply responds to the statements in the amended petition and accordingly seeks that the Court dismiss the petition against Drambois and make declarations that:
(1) The Court has no jurisdiction to hold that section 200 of the Ordinance is incompatible with Article 26 of the Constitution and Article 545 of the Civil Code;
(2) Drambois has no obligation under Article 545 of the Civil Code to prove that the price paid for the shares was the fair and proper market value as the purchase of Ms. Lefevre’s shares was made under section 200 of the Companies Ordinance;
(3) Ms. Lefevre failed, neglected and refused to exercise the option under section 200 of the Ordinance to assent or dissent to the proposed transfer of shares and/or to indicate whether her dissent was based on the value of the transfer within the prescribed period and is therefore out of time to challenge Drambois’ acquisition of shares;
(4) Drambois complied faithfully with all the provisions of section 200 of the Ordinance but that Ms. Lefevre failed, refused and neglected to exercise the option to assent or dissent to the transfer of shares and/or to indicate whether her dissent was based on the value of the transfer and was therefore time-barred from challenging the said acquisition of shares;
(5) The purchase of Ms. Lefevre’s shares by Drambois is valid and in full force and effect and the transfer of shares should be registered;
(6) An order awarding costs to Drambois; and
(7) Any other or further orders that this court deems fit in the circumstances.
[15] The First, Third, Fourth and Fifth Respondents filed a joint answer dated 14 May 2018 to the petition. The reply includes pleas in limini litis, an amended version of which was filed later and is reproduced below. The reply requests that the Court dismiss the petition with costs and for any other orders that the court deems fit.
Pleas in limini litis
[16] Further to the pleas in limini set out in the Respondents’ answers to the petition filed in May 2018, separate pleas in limini were filed in July 2018.
[17] The pleas in limini litis of the First, Third, Fourth and Fifth Respondents dated 18 July 2017, and amended on 24 July 2017, is on the basis of the following:
(1) The petition is an abuse of the Court’s process since Ms. Lefevre has no right to challenge the decisions of the Company while she did not have a right to participate in taking such decisions. Ms. Lefevre has also brought various previous legal proceedings in respect of the same matter.
(2) Ms. Lefevre has no locus standi, as the cause of action taken by Ms. Lefevre has already been resolved by the judgment by consent dated 13 November 2014 in the case of Chung Faye v Beau Vallon Properties Ltd and ors CS No 117/06 (exhibit P20).
(3) The petition does not disclose a cause of action against the First, Third, Fourth and Fifth Respondents.
(4) There was no prejudice to the rights of Ms. Lefevre in the period of the share increase by the First, Third, Fourth and Fifth Respondents as they were not shareholders and directors at that time.
(5) Accordingly, the First, Third, Fourth and Fifth Respondents sought that the Court dismiss the petition on the plea in limini litis with costs and for all others as it deems fit.
[18] Drambois also filed separate pleas in limini litis dated 17 July 2017, and an amended plea on 20 July 2017, on the basis of the following:
(1) The petition contains no cause of action for unfair and prejudicial conduct under section 201 of the Ordinance against Drambois (ex facie the petition and affidavit):
(2) Ms. Lefevre has no locus standi to bring an action for unfair and prejudicial conduct;
(3) The petition is time barred under section 200 of the Ordinance to challenge Drambois’ acquisition of Ms. Lefevre’s share in BVP;
(4) The petition is not maintainable in law and constitutes an abuse of the court’s process, and should be struck out;
(5) Drambois is not liable for the past actions of the former directors of BVP.
(6) Drambois thus also seeks the dismissal of the petition with costs.
[19] The Respondents filed written submissions (separately) dated 11 October 2017. Ms. Lefevre filed written submissions dated 30 October 2017 on the pleas in limini litis made by the Respondents. Drambois filed additional submissions on 8 November 2017. Ms. Lefevre then filed ‘additional written submissions on the pleas limine litis of the Respondents’ on 1 November 2017, and another ‘response to submissions on plea in limine’ dated 8 June 2018.
[20] Drambois filed skeleton arguments on the plea in limini litis dated 4 June 2018. Ms. Lefevre filed further submissions dated 5 June 2018.
[21] The pleadings are set out above in extenso to reflect the difficulties encountered by the court in sifting out the irrelevant issues. The overabundance of pleadings even after warnings from the Court that these did not meet the requirements of the Seychelles Code of Civil Procedure seems to have fallen on deaf ears. The subsequent superfluity of evidence, repetitions, duplications, endless closing submissions and prayers do not facilitate the Court’s task, obfuscates the issues and otherwise complicates what could otherwise have been a simple case. In the end it frustrates the objectives of a court action. Nevertheless, this Court has to adjudicate and bring these matters to a conclusion, which I now propose to do.
The Hearing
[22] Hearings in this case took place from 11-14 June 2018, and then from 16-17 August 2018. A further hearing took place on 16 May 2019.
The Petitioner’s Evidence
Personal answers of Mr. Vadim Zaslonov
[23] Mr. Zaslonov was called on personal answers.
[24] Various personal questions were put to Mr. Zaslonov regarding the directors’ reports, financial statements and annual returns of BVP. He was specifically questioned on the loans (including shareholder loans) taken and debt owed by BVP. A loan from Tour & Tech was taken before Mr. Zaslonov became a director, and he explained that this loan was transferred to Concordia – at which point it became a shareholder loan. The loan had an interest rate of 9% according to annual returns, but no agreement was provided to the Court. The validity of this loan was questioned by counsel for Ms. Lefevre. A loan to Savoy Development was also raised.
[25] Mr. Zaslonov confirmed that he was Managing Director of Vertex Management and is currently Secretary of Savoy Development Ltd – which owns the Savoy Hotel. He could not recall the other companies that he had a role in since moving to Seychelles. He confirmed that he received a salary of USD 6,200 per month as Director of BVP.
[26] He was questioned about the role of the Guta Group in the dealings of BVP. He stated that he was not aware of any such dealings. Mr. Wilson referred to the agreement between Tour & Tech and the Guta Group which was signed a couple of days before he became director. The agreement was for the Guta Group to buy materials for the renovation of the kitchen at Coral Strand Hotel. Mr. Zaslonov denied knowledge of any of this. He also denied knowing Mr. Eduard Gevorkyan (lawyer for the Guta Group) stating ‘I knew this guy by this name, but I do not know who he is.’ When asked about the email regarding the sale of Ms. Ms. Lefevre’s shares with Mr. Gevorkyan, he denied any knowledge of this, saying that ‘Guta Group is just a big group as I know’. He was presented with an email sent to him Ms. Lefevre in which she explains that she had a meeting with ‘Alexander, Eduard, Denis and my mother to discuss the details of you buying me out.’ Mr. Zaslonov stated he didn’t know what this email was about, and he did not reply to it. When pressed on whether there was a connection between the Guta Group and BVP, he said: ‘I do not know how no connection, maybe there is some connections I do not know the personality because it is owned by Concordia, it is IBC. IBC can have some outer beneficial owner who just I do not know… [sic]’. He acknowledged that the Guta Group has an account with Coral Strand Hotel as a customer.
[27] Mr. Wilson also referred to an interest free loan made from BVP to Savoy Development Ltd, noted in the 2009 Directors Report. The report states that ‘the loan receivable is due from Savoy Development Ltd, an associated company. It has no fixed term of repayment and is interest free.’ Mr. Zaslonov stated that this was not a correct reference – as Savoy Development Ltd was not an associated company. As Secretary, he had no decision-making power in the running of Savoy.
[28] He confirmed that the shareholding companies of Drambois, Gilel and Efrat, were set-up by Vertex Management, when he was the Managing Director of Vertex. He was not aware of who subsequently bought these companies. He confirmed that Mr. Khlebnikov took over as director of Vertex Management after he left.
[29] Mr. Wilson moved on to enquire about the Judgment by Consent between BVP and Joseph Chung-Faye of November 2014 (exhibit P20). He noted that the Judgment by Consent was concluded several months after the Court of Appeal judgment that found that the share transfer to Ms. Lefevre was valid. He confirmed that there was no suggestion that Mr. Chung-Faye was acting on behalf of Ms. Lefevre. Ms. Lefevre was not made party to the settlement agreement. Mr. Zaslonov confirmed that he was aware of the judgment involving Ms. Lefevre. He explained though that his involvement in the judgement by consent was minimal and that Mr. Khlebnikov, the other director at the time, was more involved and signed the agreement on behalf of BVP. When asked about the risk of Ms. Lefevre bringing further action against the company regarding the same matter, he accepted that this might be so but that BVP’s lawyers thought it was ‘sensible’.
[30] Mr. Zaslonov denied knowledge of the letter sent to the Ministry in April 2013 by the General Manager of BVP regarding the issue of sanctions. Counsel noted that this was not actually a concern for BVP, but for Concordia. Mr. Zaslonov says he did not instruct the General Manager to write this letter.
[31] As regards Ms. Lefevre, he acknowledged that he met with her regarding selling her shares – though he said that this was just a possible development. He did not recall an offer being handed to him by Ms. Lefevre at this meeting.
[32] Mr. Zaslonov was also asked about the letter from Ms. Pool dated 25 July 2016 to Ms. Lefevre regarding the offer to purchase the shares of BVP. The letter noted that the offer price ‘is based on the annual returns of the company for the last five years …’ It was put to Mr. Zaslonov that, in the Respondents’ reply of 14 May 2018, it is noted that the annual returns for the company had not been completed. He denied this, stating that the information was available, but that the reports had simply not been filed with the registry. He explained that financial information was made available to Drambois which presumably informed the price it offered in respect of BVP in 2016. He did not personally make those records available to them but he knows they approached BVP and they had access to the books. He says he also ‘heard about’ a valuation prepared by ACM Auditors.
[33] Mr. Wilson then addressed the compulsory acquisition of Ms. Lefevre’s shares. Mr. Zaslonov explained that the ‘accounts clearly shows that the company is not profitable’. He further explained that, at the end of 2015, the company had unsecured loans of SR175 million ‘from different companies’. It was put to Mr. Zaslonov that the financial statement of 2015 shows that the company was making a profit, but carrying forward the losses from the year previously. It was suggested that this was being done for tax purposes, and that the company was actually not worthless when its profit and assets were taken into account. It was also put to him that Drambois’ offer of 1USD did not represent fair value of BVP, which he denied. Asked whether the shareholders were disappointed in Mr. Zaslonov for his handling of the company, he said that ‘sometimes business go wrong’ [sic] – denying any personal responsibility for the loss in value of the company since he took over as director.
[34] Mr. Wilson then turned to the AGM which took place in August 2015, at which Ms. Lefevre was not present. It was put to him that the meeting was inquorate under BVP’s Memorandum and Articles of Association. An adjournment should have been taken. Mr. Zaslonov could not recall if this happened. He stated that two local lawyers were at the meeting, Mr. Herminie and Mr. Chetty, and they advised that the meeting could go ahead without Ms. Lefevre present.
Evidence of Mr. Jean Paul Maurel
[35] Mr. Jean-Paul Maurel, real estate agent, testified that he was approached by a ‘senior person in Coral Strand’ to do a valuation of the land, building and business in 2015. The valuation report of Coral Strand was completed in early 2016. The total value of the company, including its moveable and immoveable assets, debt, total income and cash in hand was put at 27.844 million dollars (exhibit P22). The total debt was estimated to be around 12-15 million dollars, so he calculated its value at 15 million dollars. Mr. Maurel was cross-examined by Mrs. Aglaé, who challenged his expertise to provide the valuation. On re-examination, Mr. Maurel explained the methodology he used to prepare the report, which was the age-life method.
Evidence of the Deputy Registrar General
[36] Mr. Fred Hoareau, Deputy Registrar-General gave sworn evidence confirming that many of the annual reports of BVP were not filed on time, as per the Companies Ordinance. He explained that this was not, however, unusual: about 20% of companies are not ‘in good standing’ with the registrar. After taking advice from the Attorney-General, it was decided that companies that had not filed the appropriate documentation would be given until January 2019 to ensure that all annual returns etc. were filed, otherwise they would be fined. BVP complied with this notice.
Evidence of Mr. Patrick Lablache
[37] Mr. Patrick Lablache, a consultant for the Ministry of Habitat, Infrastructure and Land Transport, gave evidence on the retrospective sanction given in respect of BVP share transfers. He confirmed that the Concordia made an application dated 3 August 2007 for retrospective sanction. He stated that the issue had been a matter of correspondence and negotiations between Concordia and the Ministry. Mr. Lablache confirmed that the letter dated 6th September 2007 regularised the granting of sanctions for Field Nominees Ltd, Fenchurch Nominees Ltd, Hanneman and Concordia for share transfers. He noted that this was subsequently confirmed in the 2013 letter from Mr. Francois.
[38] Mr. Wilson questioned Mr. Lablache on apparent inconsistencies between his evidence in this case and a previous case (in 2012) in which he gave evidence. Mr. Lablache rejected any inconsistency, noting also that the previous case preceded the 2013 letter of Mr. Francois. This letter was in response to a letter from BVP to the Minister seeking clarification on the retrospective sanction granted. He averred that it was his view that the letter, written by the Principal Secretary who is the CEO of the Ministry, confirmed that sanction had been given in respect of the purchase of shares by Concordia and past transactions – i.e. that it gave retrospective sanction ‘to the whole transaction’. Mr. Lablache further confirmed that all conditions for the granting of the sanction had been complied with. It was his view that it was within the powers of the Minister to grant retrospective sanction, which would have the same effect as if it had been granted from the beginning.
Evidence of Ms. Low-Toy
[39] Ms. Low-Toy, Registry Manager at the Financial Services Agency (FSA), testified that the registry section of the FSA is responsible for the incorporation of international business companies, foundations and limited partnerships. Ms. Low-Toy confirmed that the certificate of incorporation for Drambois was issued by the domestic Registrar of Companies, not the FSA – it is therefore an onshore company. She was also asked about the certificates of Gilel Investments Ltd and Efrat Holdings Ltd – both of which are IBCs. The former was incorporated on 25 May 2012. The latter was incorporated on 28 May 2012. She confirmed that Vertex Management Ltd is the corporate service provider for the two IBCs. At the time that these companies were incorporated, Mr. Zaslonov was the director of Vertex Management. None of these companies have filed their register of directors and the deadline was 31 May 2018.
Evidence of Ms. Lefevre – the petitioner
[40] Mr. Elizabeth then called the petitioner, Ms. Natalie Lefevre, to testify. She confirmed that she acquired shares in BVP on 13 September 2005 from Mr. Joseph Chung-Faye (Mr. Chung- Faye). She paid 1 million Seychelles rupees for 213,280 shares. The share transfer was filed with the Registrar on 21 May 2007 (exhibit P31). She explained that she subsequently became aware that Mr. Chung-Faye was involved in litigation with BVP regarding two share dilutions. She averred that she tried to intervene in that litigation but the Judge did not allow her application for intervention. She found out in 2014, after the completion of the Court of Appeal litigation to which she was a party, that the matter had been settled by way of a judgment by consent.
[41] Counsel then asked her about the offer by Drambois to buy her shares, which was notified to her by Drambois’ counsel, Ms. Pool, by letter dated 25 July 2016 (Exhibit P32). As instructed, her lawyer responded to that letter on 2 August 2016. Ms. Pool further responded by letter dated 12 August 2016 (Exhibit P34). On 7 October, Ms. Pool sent another letter entitled ‘letter of notification’ regarding the acceptance by Concordia of the Drambois’ offer for its shares in BVP. This letter also noted that her shares would be compulsorily acquired (Exhibit P36). She explained that she instructed her lawyer to reply on the same day (Exhibit P37).
[42] She was asked by Mr. Wilson why she did not accept or reject the offer in her reply dated 2 August 2016 to Ms. Pool’s letter of 25 July 2016. She said: ‘I was advised by my lawyer that this letter did not contain true facts and that it was therefore not a valid offer and it is null and void.’ She also noted that the contents of Ms. Pool’s letter were not true and correct, as she conducted a search of Drambois and discovered that the companies that own it are IBCs – so sanction was required for the purchase (unlike what Ms. Pool averred in the letter).
[43] She explained her previous interactions with the directors of BVP. She met Mr. Zaslonov twice for meetings over lunch during which they discussed her offer to sell her shares in BVP for 4.5 million euro. She said that the meetings were friendly. She also had a few meetings with BVP’s lawyers – who invited her for dinner and drinks. The communication was consistent throughout. She explained that the Guta Group owns Concordia, and that she has met one of the owners, Mr. Gouchtchine in Moscow. That meeting was to discuss them buying her shares if she were to win the case in the Court of Appeal (the Chung-Faye challenge to the transfer of shares to her). Email correspondence between Ms. Lefevre and Mr. Eduard Gevorkyan was referred to (P39). Ms. Lefevre explained that she understood Mr. Gevorkyan was representing Concordia or Guta who wanted to buy her shares.
[44] After the 2014 Court of Appeal judgment, Ms. Lefevre emailed ‘them’ to continue negotiations. At this point, she was informed by Mr. Gevorkyan that the company was having some issues, and that it may now have to be sold. She offered to find a buyer and put them in contact with a Mr. Naguib Sawiris. She understood his offer for the purchase of BVP and its assets was around 35 million euros. She did not receive a reply to her email.
[45] Regarding the annual general meetings of BVP, Ms. Lefevre explained that she was only ever notified about one such meeting, which she thought was in 2014. She explained that she could not attend, but that she suggested another date for the meeting, and then if she could send a proxy – but that she received no reply. She noted that she never received information about the day to day operations of the company. She said she was not satisfied with how the company BVP had been run by the directors. She explained:
“They [the Directors] have been depriving me of many rights as a shareholder. They have kept me completely out in the dark. They have not provided me any annual returns. They have been filing annual returns completely late putting the company in jeopardy for penalties. They did not fulfil and satisfy peremptory rights that I had. They have been giving fictitious loans. They have been using the company for their own benefit and giving themselves many benefits, freebies, free booze, free stays, food for all the company friends. So they have been depleting assets, dissipating the assets and stripping me of a lot of rights and I had no knowledge and they haven’t been following their duties as directors” (Verbatim P. of the transcript of proceedings)
[46] She did not accept that BVP was worth 1 USD. She explained that she had been notified that 3.5 USD cents had been deposited in Mr. Andre’s account for her. She explained that she wanted the company to be investigated because she would like a neutral opinion on the evaluation of what the shares are worth and if it is possible to have correct annual returns that depict ‘the true story’.
[47] Mr. Wilson itemized the orders that Ms. Lefevre was seeking from the Court in the amended plaint. She confirmed that she was still seeking those orders. As regards the damages sought, she explained that the whole ordeal has caused her extreme stress. She had had to fly to Seychelles several times, having to pay the airfares, rental car costs and so on. She also referred to the mental stress and anguish.
[48] She was cross-examined by Ms. Madeleine, Counsel for Drambois. She explained that she considered that the offer in the letter of 25 July 2016 from Ms. Pool was not valid as she had done a search around the time of the offer and found out that Drambois, which made the offer, was an IBC. She therefore was advised by her lawyer that the offer was not valid, and that she need not respond to it. Ms. Madeleine put to her the statement in her affidavit of 7 February 2018 where she notes that she ‘recently’ discovered that Drambois was by definition a non-Seychellois company. Ms. Lefevre said that this was the wording of her lawyer and reiterated that she made the search around the time of the offer.
[49] Ms. Madeleine then referred to the Notice to Non-Assenting Shareholders (Exhibit P40). The notice includes the following statement:
“If these terms include the choice consideration you should within the prescribed time of the day of this notice inform the offeror in writing at…”
Ms. Madeleine then put it to her that she only filed a case against Drambois in April 2017 which was outside the 2 months for her to do so. Counsel thus put to her that she had failed to challenge the acquisition of the shares within the time set by the law. She disagreed.
[50] Mrs. Aglaé, counsel for the First, Third, Fourth and Fifth Respondents then cross-examined her. Ms. Lefevre confirmed that, when she acquired the shares, she knew that there was a risk of legal action from Mr. Chung Faye. Mrs. Aglaé then asked whether, when her case was ongoing against Mr. Chung Faye, she ‘put forward any case in respect of the authorized share capital’? Ms. Lefevre responded that she did not need to because she had an agreement with the Russians to pay her 1 million euro when the case with Mr. Chung-Faye was resolved. Mr Langer, former BVP director, also said that she would be ‘taken care of’. Mrs. Aglaé then asked her if she was aware that Mr. Chung-Faye had filed a petition for minority protection. She said she found out later and applied to intervene but it was denied. She stated that she did not know that she could have appealed this decision.
[51] Ms. Lefevre confirmed that she contacted Mr. Zaslonov and others after she won in the Court of Appeal so that they could proceed to purchase her shares as per the agreement that she says they had ‘negotiated and discussed’. She