Drury v Aux Cayes Fintech Co. Ltd (MC 87 of 2024) [2025] SCSC 50 (8 April 2025)

IN THE SUPREME COURT OF SEYCHELLES

 

Not Reportable

 

MC87/2024

 

In the matter between

JAMES DRURY APPLICANT

(APPOINTED JOINT RECEIVER OF HECTOR (DAO)

PO BOX 4571, LM BUSINESS CENTRE, FISH LOCK ROAD,

ROAD TOWN, TORTOLA, BRITISH VIRGIN ISLAND,

VG1110)

(rep. by Khalyaan Karunakaran)

 

AND

 

AUX CAYES FINTECH CO. LTD RESPONDENT

(A SEYCHELLES INTERNATIONAL BUSINESS COMPANY - INC

NO. 202706)

REPRESENTED BY ITS DIRECTOR AT THE REGISTERED OFFICE

OF ITS REGISTERED AGENT APPLEBY GLOBAL SERVICES

(SEYCHELLES) LIMITED, SUITE 202, 2^ND FLOOR, EDEN ISLAND

(rep. by Karine Dick)

 

Neutral Citation: James Drury vs Aux Cayes Fintech Co. Ltd (MC87/2024)

Before: B. Adeline

Heard: Submissions

Delivered: 08 April 2025

ORDER ON MOTION

______________________________________________________________________________

Adeline J

1. The Applicant in this matter, one James Drury, a Director of Interpath DVI Limited E/A Interpath Advisory, who is one of the joint receivers of Hector D A O, by notice of motion filed in accordance with Section 17 of the Courts Act read with Rule 31.16 of the Civil Procedure Rules of the Supreme Court of England known as the White book, applies to this Court an order of discovery under the Norwich Pharmacal principles.

2. The application is supported by an affidavit of facts and evidence, sworn by the said James Drury.

 

3. By his application, James Drury prays this Court to grant the following reliefs:

 

a. “That the Respondent be ordered to disclose, by way of an affidavit attached supporting documents, information pertaining to each of the following deposit addresses, and the underlying users accounts:

 

1. Oxc1Bf377fgF993472aE2070e851DCE053B67e9B93

2. OX96c9428729F5D713334428E35b54C61fa65C13c3

3. Oxfc7143bd69a32b5a59d687a81f1afb8025157eba

 

Including but not limited to;

 

1. Account information: Details about the account holder, including name, address, e-mail, telephone numbers, and any identification documents provided during the know your customer (KYC) process.

 

2. Transaction History: Comprehensive records of all transactions associated with the account, including dates, amounts and counterparties.

 

3. Wallet Address: Information on all wallet addresses linked to the account, including any external wallets used for transactions.

 

4. IP Logs: Records of IP addresses used to access the account, which could help trace the location of the user.

 

5. Communication Records: Any communications between the account holder and the exchange, such as e-mails or support tickets.

6. Compliance Records: Documentation related to Anti-Money Laundering and Countering the Financing of Terrorism Act (AMLCFT) checks conducted on the account.

 

7. Account Activity Logs: Logs of account activities, such as login attempts, password changes, and security settings updates.”

 

b. That the Respondent be directed to refrain from disclosing the present proceedings to the users who would be subject to the above disclosure order.

c. Any other orders that this Honourable Court may deem fit and proper to issue in the circumstances.

4. On the date appointed for the application to be heard, the Respondent who had notice of the same, was represented in the proceeding by counsel who informed the Court, that the Respondent does not oppose the application, and will cooperate fully to provide the Applicant with all the necessary documents and information required by way of an affidavit regarding to the reliefs sought for by the Applicant in this proceeding.

5. The first application of this kind made to the Seychelles’ Court was in the case of Danone Asian Pty Limited and Ors vs. Offshore Incorporation (Seychelles) Limited CS 310/2008. Essentially, a Norwich Pharmacal Order is an equitable remedy that derives from equity and originates from the case of Norwich Pharmacal vs. Commissioner of Customs and Excise [1974] AC 133. In essence, under the Norwich Pharmacal Principle, where a wrong doing has, or is thought to have occurred, upon application by a claimant, a Court may make an order compelling a third party who is involved in the wrong doing, however innocently, to disclose any information that maybe relevant to the case.

6. In the case of Mitsui & Co. Ltd vs. Nexen Petroleum UK Ltd 2005 EWHC 625 (CH), 3 ALLER 511 at 21, lightman J said the following:

1. “A wrong must have been carried out, or arguably carried out by an ultimate wrong doer.

2. There must be the need for an order to enable action to be brought against the ultimate wrong doer, and

3. The person against whom the order is sought, must;

1. Be mixed up in so far as to have facilitated the wrong doing, and

2. Be able or likely to be able to provide the information necessary to enable the ultimate wrong doer to be sued”

7. In the case of Various Claimants vs. News Group Newspaper Limited [2014] 2 WLR 756, Mann J, had this to say:

“that the true principle is that the 3^rd party’s engagement with the wrong doing must have been such as to make him more than a mere witness, and that facilitation of the wrong doing is just one way in which that test might be satisfied”.

8. It has been stated by case law, for example in the case of Axa Equity and Life Assurance Society PLC and others vs. National Westminister Bank (PLC) 1177, as well as Arab Satellite Communications Organisation vs. Al Faqui and Anor [2008] EWHC 2568, QB, that when applying the conditions that must be satisfied for the grant of a Norwich Pharmacal order, the Court must be satisfied, that it’s not an attempt by the Applicant to venture into a fishing expedition, and that Frank and full disclosure has been made. (underlined emphasis is mine)

9. Based on case law, see for example, Bib Limited vs. Ocra (Seychelles) Limited and Anor (MC34/2019) [2019] SCSC 462 (5 June 2019), Ramkalawan vs. The Agency of Social Protection, MC 8/2016 [2016] SCSC 88 (15 February 2016) that establish the principle, that the Court will not grant the order where there are alternative ways of obtaining the information for the purpose of litigation. This is because there must be the need for such an order to enable action to be brought against the ultimate wrong doer.

10. Therefore, account of the affidavit evidence which I have given due consideration to, coupled with the fact that the Respondent does not object to the grant of the order sought for by the Applicant, I am satisfied, that the case for a Norwich Pharmacal Order has been made out as conceded by Respondent, and accordingly, I hereby grant the Applicant a Norwich Pharmacal order, in that, I order the Respondent in this matter, to disclose and produce by way of an affidavit with the necessary supporting documents exhibited therewith, information pertaining to each of the following deposit, addresses and the underlying users accounts, notably:

1. Oxc1Bf377fgF993472aE2070e851DCE053B67e9B93

2. OX96c9428729F5D713334428E35b54C61fa65C13c3

3. Oxfc7143bd69a32b5a59d687a81f1afb8025157eba

 

Including but not limited to;

 

1. Account information: Details about the account holder, including name, address, e-mail, telephone numbers, and any identification documents provided during the know your customer (KYC) process.

 

2. Transaction History: Comprehensive records of all transactions associated with the account, including dates, amounts and counterparties.

 

3. Wallet Address: Information on all wallet addresses linked to the account, including any external wallets used for transactions.

 

4. IP Logs: Records of IP addresses used to access the account, which could help trace the location of the user.

 

5. Communication Records: Any communications between the account holder and the exchange, such as e-mails or support tickets.

 

6. Compliance Records: Documentation related to Anti-Money Laundering and Countering the Financing of Terrorism Act (AMLCFT)checks conducted on the account.

 

 

7. Account Activity Logs: Logs of account activities, such as login attempts, password changes, and security settings updates.

 

Signed, dated and delivered at Ile du Port on 08 day of April 2025.

 

____________

B Adeline

Judge