In the matter of The Companies Ordinance 1972 and in the matter of Natalie Lefevre v Beau Vallon Properties and Ors (CC 08/2017) [2019] SCSC 899 (15 October 2019);

Headnote and Holding: 

Takeover bid - directors’ conduct - breach of fiduciary duties - oppressive conduct against minority shareholder         

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 referred to a ‘formal signed letter’. She did not have a copy of that agreement, averring that she gave her copy to Mr. Zaslonov and that the copy was lost. She said that the only evidence of this agreement is therefore the emails she had with Eduard Gevorkyan and that she sent to Mr. Zaslonov.

[52]      She confirmed that she received an email about the meeting regarding the amended memorandum and articles, and that she had proposed an alternative date (exhibit P39).  As for post, she admitted that her postal address has changed frequently in recent times as she moves around a lot for work. She confirmed that her family’s property was opposite to Coral Strand Hotel, which she looked after. Mrs. Aglaé asked why she never went to the hotel to ask the directors questions personally if she had concerns. Ms. Lefevre said she did not stay at the property by the hotel when she was in Seychelles, and that she did raise her concerns with the directors. Mrs. Aglaé put to her that she had in fact taken little interest in the running of the company over the years.

[53]      In her re-examination Ms. Lefevre was referred to the Accredo and Concordia agreement, dated 20 August 2007 (Addendum to the Agreement on the Assignment of Beneficial Rights dated 6 June 2007). According to this agreement, the value of 100% of the shares in BVP were 5,542,447 euro (Art II of the Addendum). There is also provision in this agreement that states(exhibit P11):

Subject to the provisions of art 7 hereof below, the Buyer shall within five business days pay to the bank account, specified in schedule F of the Agreement or as may be further specified by the Seller, the amount of euro one million … after assignment to the Buyer of the beneficial rights or title to an interest in JCF’s [Joseph Chung Faye] shares no later than November 15 2007.

 

[54]      She explained that she understood this to mean that she would be compensated and receive her share as a shareholder in the company when Concordia bought her out. She was not, however, party to this agreement.

[55]      She was referred to her email with Mr. Zaslonov dated 30 July 2015 (exhibit P39) in which she complained to the directors, and for which she received no reply. As regards the compulsory acquisition of her shares, she explained what she meant in the letter dated 7 October 2016 – that is, that she should first be offered the shares being sold by Concordia as that was her right as a member shareholder. She confirmed that the letter of 25 July 2016 was the first time she became aware that Concordia was selling its shares in BVP. She would have bought the shares for 1USD had she been offered them.

[56]      Finally, she was asked about the letter dated 2 July 2007 regarding the sanction to purchase BVP (exhibit P26). This letter is from Minister Joel Morgan to Alexey Mokeyev, Head of Hotels Department, United Confectioners Holding Company, Moscow. She explained that, according to her research, this is a subsidiary company of the Guta Group. The letter identifies the net value of BVP as at 30 April 2007 as SR 51,005,479.66.

Evidence of June Lucy

[57]      Ms. June Louisa Lucy, Senior Tax Officer, Seychelles Revenue Commission Domestic Taxes gave evidence that tax returns for BVP were filed consistently late (Exhibit P41A-E). She confirmed that she has received the business tax returns for BVP for year ended 30 December 2012, 2013, 2014 and 2015 – all of which were filed on 30 December 2016. The tax return for the year ending 2016 was filed on 28 November 2017. The 2017 tax return has not yet been filed. She acknowledged an error in the 2012 return, namely that an error in the profit and loss column of the business tax returns for BVP for the year ending 31 December 2012, submitted by Mr. Verkhorubov amounting to SCR49,103,608.00 was entered as SCR4,770,761.00. This was carried through to the later returns. Ms. Lucy confirmed that this had been identified by the Commission, but was dealt with by a different department.

Evidence of Mr. Nigel Roucou

[58]      Mr. Nigel Roucou, a quantity surveyor and property consultant, testified that he had prepared a surveyor report dated 16 May 2018 (exhibit P42). The current market value of the property was put at SCR256,100,000.

 The First, Third, Fourth and Fifth Respondents’ Evidence

Evidence of Mrs. Sumita André

[59]      Sumita André, assistant registrar, presented the case files relating to CA 33/2011 and CA 36/2011 Beau Vallon Properties v Joe Chung-Faye – an appeal against the decision of Justice Renaud given on 4 July 2011 in CS 225/2007; Joseph Chung-Faye v Beau-Vallon Properties & Ors CS 117/2006 – seeking an order to cancel the latest increase of nominal share capital of the company before the last increase on 4 November 2005; Nathalie Lefevre v Beau-Vallon Properties & Ors CS 50/2015– seeking an order for an injunction preventing BVP from buying, selling, transferring or otherwise disposing of any immoveable properties, and Nathalie Lefevre v Beau-Vallon Properties & Ors CS 7/2016  – seeking rectification of the company register to return the nominal share capital of BVP to the position it was as at 8 September 2005 (see exhibit R1-1).

Evidence of Gemma Roberts

[60]      Gemma Roberts, Auditor at Pool and Patel, who was responsible for auditing the financial statements of the BVP, testified. Ms. Roberts confirmed that she audited the financial statements of BVP for the years 2012, 2013, 2014 and 2015. During cross-examination, Ms. Roberts confirmed that she did not know when the audited statements were signed by the directors of BVP. She was specifically asked whether she requested to see underlying documentation in relation to the liabilities recorded in the audited reports. She said that: ‘I don’t know what exactly we would have requested to see but certainly we would request to see some underlying documentation yes.’ She did not know what documentation would have been provided in relation to the shareholder loans and other loans identified in the reports. She was clear that she would have satisfied herself that the loans were not ‘materially misstated’. She said they do not usually make copies of the documentation seen, but she stated: ‘I will have some notes or something in my file’. The Court requested to see these notes but they were never provided to the Court.

[61]      Ms. Roberts was then asked about the 2008 annual report in which she gave a qualified opinion in relation to the shareholder loan recorded therein. In the 2008 report she stated in relation to the shareholder loan: ‘The evidence available to us was limited because we were unable to substantiate that this amount was due as at 31 December 2008.’ She noted that she presumes that she qualified her opinion because she didn’t see documentation in relation to that loan. She confirmed that, as per the financial statement of 2013, the equity of the company was in deficit and the company was able to trade due to the support it received from shareholders and long-term loans and advances.

[62]      She was specifically asked about whether she saw any loan from a company called Zakya and stated that she could not remember. She said that she did not bring her audit file.

Evidence of Mr. Vadim Zaslonov

[63]      Mr. Zaslonov, BVP Director since 2017, also testified. He explained that Ms. Lefevre was included in the shareholder register of BVP after the Court of Appeal judgment of 2014. He explained that relations between her and BVP were ‘very good’, but ‘that she wanted to get some money for herself this is all’. He averred that he met her in 2007 to discuss business, during which she raised selling her shares with him. He said that after that his communications were ignored. He says there was never an agreement between them regarding her shares.

[64]      He denied ever having seen exhibit P10 (Act of Verification of indebtedness, liabilities, rights of BVP towards Concordia Investments Ltd) or having any knowledge of the agreements between Accredo and Concordia, and then between Tour & Tech and the Guta Group. He averred that the latter agreement was only made known to him this year. He was aware that Tour & Tech was the main lender to BVP previously, and was owned by Mr. Langer – former BVP director. He also denied any knowledge of any agreement between Mr. Langer and Ms. Lefevre. He averred that he had no personal knowledge of the letter from Mr. Francois to Mr. Verkhorubov dated 16 July 2013 (exhibit P27) which clarified the effect of the sanction granted to Concordia in respect of the shares acquired from Field Nominees Ltd, Fenchurch Nominees Ltd, and Hanneman Holdings Ltd.

[65]      Regarding the extraordinary general meeting of August 2015 to adopt new articles and memorandum of the company, he noted that notice was sent to Ms. Lefevre’s registered address by mail and by email (see exhibit R1-13). He explained that she responded, but did not say whether she was going to attend the meeting or give warning that she could not attend. He confirmed that he sent her the approved resolution and new articles and memorandum (exhibit R1-14). He emphasized the importance of holding the meeting and adopting new articles and memorandum of the company as the former articles and memorandum were out of date, and no longer reflected the affairs of the company. He stated that he heard that Ms. Lefevre intended to challenge the change in the memorandum, but she did not communicate any objection to him directly. As for the 2016 meeting, he could not confirm if she was notified.

[66]      He was also asked about the annual reports and financial statements of BVP. These reports show that BVP suffered losses in recent years. In 2012, for instance, the company filed a loss of 54 million rupees. He explained that these losses were a result of renovations to the hotel. The losses diminished in 2013.

[67]      Questions were raised about a loan given to Savoy Development Ltd from BVP. He confirmed that BVP paid the invoice of Savoy for the construction of a carpark. He described it as an invoice advance for contractors of Savoy. The loan has since been repaid. He confirmed that he is also a director of Savoy, but that he does not have an interest in it. BVP also gave a loan to Eastern European Engineering. It has also since been repaid. Mr. Zaslonov confirmed that he was a director of Eastern European Engineering too, but has no interest in it. He said that these loans were approved at annual meetings of BVP and every year Concordia approved all activity undertaken in the past financial year. He did not recall any queries by Ms. Lefevre of any of the accounts of BVP.

[68]      As regards Drambois’ offer to buy the shares of BVP, he confirmed that the transfer had not yet been registered pending the court’s decision. He confirmed that he omitted to notify Ms. Lefevre about Drambois’ offer to purchase shares in BVP. He also noted that he did not participate in the evaluation of BVP. The evaluation was done by ACM Auditors. He had however been advised that Drambois’ legal representative had notified Ms. Lefevre.

[69]      In cross examination by Mr. Wilson, he was asked whether he accepted that Concordia Investments Ltd was part of the overall Guta Group. He said he did not know that. He confirmed that he was not aware that the Guta Group was involved in transactions between Accredo and Tour & Tech. He was also asked if he knew that Mr. Langer (former director) brought proceedings against the Guta Group in relation to an agreement between them. He said he knew nothing about that. 

[70]      He confirmed that he was previously a Director and company secretary of Vertex Management. He became a director in the Autumn of 2007 and resigned in 2013. Ms. Savy, who later became Ms. Stravens, was and remains an employee of Vertex Management. She is now also a Director of Drambois. Vertex also created the two companies that are shareholders of Drambois – Gilel Investments Ltd and Efrat Holdings Ltd (exhibits P17 and 18). Mr. Wilson highlighted the closeness between the various companies involved in the transfer. He put it to Mr. Zaslonov that Drambois ‘was a company essentially created within your group of companies and Vertex or Savoy Management Ltd or BVP…’ He denied this.

[71]      Mr. Zaslonov confirmed that Drambois took over BVP which had, at the time, quite significant liabilities. He was asked about the unsecured loan from Zakya. He confirmed that that was ‘an offshore company incorporated by Vertex as well’ and that it is an IBC. When it was put to Mr. Zaslonov that IBC’s are not allowed to engage in banking activities in Seychelles under the IBC Act he replied that he did not consider it to be ‘banking activities’ as it was just a few loans – so Zakya was not engaging in banking activities. He confirmed that the only company making loans was Zakya. Zakya gave several loans to BVP, amounting to about SCR175 million. He said that the amount depended on the day: ‘some days it was less; some days it was more’. He said there was a loan agreement. He was then referred to the note in the audited report regarding shareholder’s loans and it was put to him that these loans actually came from Zakya, as the loan given by Concordia had already been mostly paid back over the years. He said: ‘this is the opinion of the auditors; they believe that shareholders keep investing in the company. It is their opinion but sometimes shareholders are not willing to do that.’ After being pressed, he confirmed that all other loans made after 2009 were from Zakya. Mr. Zaslonov admitted that some of the loans were advanced in euros. Mr. Wilson said that the nature of the loans raised suspicions of money laundering – specifically, he put to Mr. Zaslonov that the loans were fictitious insofar as overseas money has been taken as a loan, placed in a local bank account, and then paid back to the same place. Mr. Zaslonov denied this allegation. He did not, however, provide evidence such as bank account records to show that the loans were legitimate. Mr. Zaslonov confirmed that the Zakya loan was unsecured and no personal guarantees were required. Mr. Zaslonov confirmed that in the case of default nothing would happen. He also confirmed that he signed for it.

[72]      The questions then turned to the value of the shares when Drambois sought to acquire them. Mr. Zaslonov noted that, it was his view that the offer of 1USD was reasonable. He stated that the hotel was not profitable. Questions were put to him concerning the ACM report. This report gave predictions for profit for the company for the year 2016-2020, with a profit increase year on year starting in 2017. He explained that ACM was given the management accounts to prepare the valuation because the annual reports were not ready. He also confirmed that the ACM report was not circulated to all shareholders. While he acknowledged that this was an omission, he did not accept that this was a breach of his director’s duties. He could not remember the details of the report.

[73]      As regards his view of the petitioner, he says that she was only interested in ‘snatching’ some money for her shares – she never took part in the affairs of the company, nor came to the premises. He would not therefore have considered selling the company to her.

[74]      Finally, he was asked about an email chain regarding what appeared to be an account for Guta at Coral Strand. He denied any knowledge of this email or the matter.

[75]      On re-examination, Mr. Zaslonov confirmed that, in respect of the loans given by Zakya and any other loans given to BVP, there would be records. He said that all the loans would have been discussed with the shareholder (presumably, Concordia).

The Second Respondent’s Evidence

Evidence of Lucie Pool

[76]      Ms. Lucie Pool, attorney at law explained the nature of her correspondence with Ms. Lefevre regarding the offer from Drambois and the acquisition of her shares. She sought to correct a statement in her letter dated 12 August 2016 – which responded to questions raised by Ms. Lefevre. In the letter, she said that there was no need for Drambois to seek sanction in order to acquire the shares. The shareholding companies of Drambois, however, were/are IBCs, so they would need to seek sanction.

[77]      Ms. Pool received a letter from counsel acting for Concordia confirming acceptance of Drambois’ offer to acquire the shares in BVP.

[78]      She confirmed that she relied on information provided by Drambois as regards the statement in her letter of 20 July 2016 that the price being offered was based on the last 5 years of annual returns and independent analysis of the market value of BVP shares. She did not personally have sight of these documents.

[79]      She further confirmed that she sent a letter to Ms. Lefevre on 7 October 2016 titled ‘letter of notification’. Attached to this letter was a statutory declaration. On the same day, she received a response from Mr. Elizabeth. This letter did not however challenge the consideration being offered for the shares in question. In her view, the letter simply notified Drambois that the sale of the shares would be challenged in court. She clarified that her instructions from Drambois were very narrow: to write and send the two letters to Ms. Lefevre. She confirmed that she did not do any due diligence to ascertain the beneficial ownership of Drambois.

Independent share valuation

[80]      On 17 August 2018, the Court granted Ms. Lefevre’s prayer for an order to value the shares of BVP so that the Court could make a proper assessment of the evidence in the case and come to a decision.

[81]      On 16 May 2019, Mr. Peter Roselie, a business consultant, gave evidence. He compiled the report requested by the Court regarding the value of the shares in BVP. He confirmed that, in valuing the shares, he relied on financial accounts submitted to SRC and the Registrar of Companies from 31 December 2014-2017. Mr. Wilson suggested that, if the figures in the annual reports were not accurate or legitimate, then the final valuation would also be inaccurate and illegitimate. Mr. Rosalie deferred to his colleague, Mr. Moustache.

[82]      Mr. Moustache, partner at Moustache and Associates, confirmed that the report was based on the assumption that all of the figures in the annual reports were legitimate. He further confirmed that if the liabilities were not legitimate or unlawful, then this would change the value of the shares, as it may not be necessary to deduct these sums from the company’s net asset. However, he noted that the auditors had confirmed the figures that they used. A concern was raised by Mr. Wilson that the liabilities had been double-counted in the report. This was accepted by Mr. Moustache who agreed to amend the report. Reasons were given for the other assumptions included in the report, for instance, growth rate and visitor rates.

[83]      By letter dated 16 May 2019, Mr. Moustache sought to correct part of his testimony – specifically the correction he made in response to the apparent error identified by Mr. Wilson above.

[84]      According to the report shares in BVP are valued at SCR14.58 per share. This was subsequently amended in the letter dated 16 May 2019 from Mr. Moustache, which amended that value to SCR 18.89 per share.

[85]      Ms. Lefevre gave supplemental closing submissions dated 1 July 2019 on the effect and impact of the evidence given in the expert valuation report of Moustache & Associates dated 25 April 2019, and taking into account the letter of 16 May 2019.

Closing Submissions

The First, Third, Fourth and Fifth Respondents’ Submissions

[86]      BVP, Concordia, Mr. Zaslonov and Mr. Khlebnikov have submitted in limine litis that the Petition is an abuse of process and is res judicata. They state that the Petition is in substance a complete re-litigation of previous matters contained in three cases before the Supreme Court namely, CS 117/2006, CS50/2015, and CS7/2016. In the present Petition Ms. Lefevre challenges the share purchase of previous shareholders namely Field and Fenchurch which was settled by the Court of Appeal in SCA 33 and 36 of 2011. The previous shareholder, Mr. Chung Faye who sold his shares to Ms. Lefevre brought the same action before the Supreme Court in CS 117 /2006 regarding the two increases of the authorised share capital and these matters were disposed of by way of a judgement by consent. Ms. Lefevre brought a case against Mr. Chung Faye claiming validity of the share transfer to her – which validity was confirmed in SCA 33 and 36/2011. Ms. Lefevre had been part of these proceedings and had not challenged the two increases in the authorised share capital, the issuance of new shares to Field and Fenchurch and sanction approval.

[87]      The Respondents rely on the authorities of Gomme v Maurel SLR (2012) SLR 342 and Attorney General v Baker [2000] EWHC 453 (Admin) (16 February 2000) in support of their plea that Ms. Lefevre’s present action is an abuse of process. Henderson v Henderson (1843-1860) ALL ER 378 is also authority for the principle that litigants are precluded from advancing causes of action or arguments that they could have advanced in earlier proceedings.

[88]      With respect to the plea of res judicata they submit that there is no relevant change in circumstances and Ms. Lefevre is merely repeating the application by Mr. Chung Faye in CS 117 /2006 which was settled in SCA 33 and 36/2011 and which she again attempted to do in CS 50/2015 and CS 7/2016, which actions were withdrawn. By accepting and admitting in those cases that her purchase of Joseph Chung Faye’s shares was valid she accepted the issuance of shares to Field and Fenchurch. 

[89]      The issues raised in CS 7/2016 and CS 117/2017 show that the issues raised are identical. In Arnold v Westminster Bank Plc 1991 2 AC 93, it was held that where an issue decided in a previous claim between the parties was central to the second and subsequent claims, the whole of the second and subsequent claims would be struck out.  It also does not matter whether the order is made by consent or after arguments (Kenneth Utah Corporation v Minet Ltd 2002 EWHC 1622).

[90]      In any case Ms. Lefevre has no standing to bring the present application, as she was not a registered shareholder in respect of the matters dealt with at that time and also no standing to engage in the decisions of BVP taken at that time.

[91]      Further, the Petition is not maintainable in law as, though it is filed under section 201(1) of the Ordinance, the remedy claimed is not appropriate under the provision. There is no personal claim being made either under the company’s Articles or any rectification of the corporate documents sought. The remedies sought are of personal interest in terms of managing the affairs of the company and for monetary compensation. The breaches alleged are numerous and include the authorised increase of share capital in 2005, annual returns not having been submitted, and issuance of shares that was settled in SCA 33/36 of 2011, transfer of shares, and actions of directors which are all prescribed in time. However, these do not support the allegations of oppression of Ms. Lefevre’s rights as a shareholder.

[92]      Similarly, the late filing or non-filing of annual returns are not prejudicial to Ms. Lefevre. As to the allegations that the loans made to Savoy Hotel were fictitious, this is not supported by evidence. The loans granted to the Savoy Hotel were well within the powers of the directors to authorise as was the loan to Eastern European Engineering Limited for the purpose of constructing a promenade which would benefit Coral Strand Hotel.

[93]      Previous loans (to Zakya and Tour and Tech) that had been taken when Mr. Langer was director were carried over and remained on the company’s books when Concordia became a shareholder and Mr. Zaslonov and Mr. Khlebnikov when he became director.

[94]      The increase and allotment of share capital was made in 2005 and Ms. Lefevre was not then a registered shareholder and consequently had no standing to challenge them. In any case the action is prescribed.

[95]      With regard to the grant of sanction to Field and Fenchurch for the purchase of their shares in 2005, the power to grant the same retrospectively was within the powers of the Minister under the IPTRA. Ms. Lefevre was a party to the proceedings and did not challenge the decision and that her purchase of shares from Joseph Chung Faye was valid and legal for the number of shares she purchased and the amount she paid for them. Subsequently, both Field and Fenchchurch Nominee Limited sold their shares to Concordia in 2007 which was again not challenged.

[96]      With respect to the amendment to the memorandum and Articles of the BVP, all procedures under section 18 of the Ordinance were followed. Ms. Lefevre failed to attend the meeting or appoint a proxy to represent her as she had done previously. She is therefore prescribed form challenging these matters now.

[97]      There is no cause of action against BVP, Concordia, Mr. Zaslonov and Mr. Khlebnikov in respect to acts performed by previous directors. Concordia only became a shareholder in 2007 and Mr. Zaslonov and Mr. Khlebnikov only became directors in 2007 and 2013 respectively. They were not present in any capacity nor had any interest in the company for the issuance of shares to Field and Fenchurch and were also not responsible for the increase of the share capital. In any case the actions of the previous directors were within their powers and in compliance with the objects of the company.  

[98]      With regard to the role played by Vertex, a corporate service provider which was responsible for the incorporation of Gilel and Efrat, the attempt to show a link between Mr. Zaslonov who is also a director of Vertex is ill founded. It is normal for a corporate service provider to set up shelf companies as part of its business and there were no ulterior motives to the setting up of Gilel and Efrat with respect to Ms. Lefevre’s shares.

[99]      In respect to Ms. Lefevre’s claim that the Accredo agreement safeguarded a payment of Euro 1 million for the shares she was holding, again this is not supported by evidence. The Accredo agreement only concerned the purchase of its shares by Concordia and Ms. Lefevre’s name is mentioned only for the purpose of informing the parties to the agreement that she had purchased Mr. Chung Faye’s shares.

[100]    The Respondents submit therefore that the claim for damages are not made out and that Ms. Lefevre sat on her rights as a shareholder.

Submissions of the Second Respondent, Drambois.  

[101]    The Second Respondent, Drambois, has submitted that Ms. Lefevre’s case brought under section 201 of the Ordinance for the unfair and prejudicial conduct by the persons in charge of the management and control of the affairs of BVP and the challenge to the compulsory acquisition of her shares is prescribed and no action is maintainable against the Second Respondent as it is not and never has been part of the management and control of the affairs of BVP.

[102]    Apart from the averment of an alleged collusion between Drambois, Mr. Zaslonov and Mr. Khlebnikov, for the purchase of her shares, Ms. Lefevre has not been able to establish a case of unfair, prejudicial and oppressive conduct against the BVP.  

[103]    With respect to the issue of whether sanction was obtained for the purchase of shares under the IPTRA, Ms. Lefevre’s action is not maintainable under section 201 of the Ordinance as such actions are only maintainable against persons in control of the affairs of the company.

[104]    With regard to sanction itself and the fact that Drambois have two Seychellois IBCs as its directors (namely Gilel and Efrat) the lack of sanction is cured by a retrospective application by Drambois for the transfer of the shares. Section 8 of IPTRA permits the Minister to give retrospective validation of the transaction which is subsequently deemed valid ab initio. A challenge of this decision could have been brought by judicial review.

[105]    The procedures for the compulsory acquisition of shares was followed to the letter: letters went out to Ms. Lefevre and to Concordia on 25 July 2016 and to Ms. Lefevre’s attorney on 2 August 2016 about the offer to Drambois to purchase shares. Ms. Lefevre did not answer the letters. On 7 October 2016 a letter of notification of the transfer together with a statutory declaration relating to a Notice to Non-Assenting Shareholders was again sent to Ms. Lefevre. The purchase of shares was not challenged within the two months prescribed period. The Petition was filed out of time by at least six months.

[106]    The challenge regarding the inconsistency of section 200 of the Ordinance with Article 26 of the Constitution and with Article 545 of the Civil Code was not made in the petition and are not maintainable against Drambois.

[107]    Concordia owned nine tenths of the shares in BVP and was entitled by virtue of section 200 of the Ordinance to acquire the shares of Ms. Lefevre who had been fully notified but failed to respond to the offer within the time stipulated in the letter of 25 July 2016.

[108]    Finally, Drambois cannot be held liable for the past actions of the former directors of the BVP as these are not attributable to Drambois. It cannot be affected by any irregularity of procedure in connection to the authorisation of any transaction or the non-fulfilment of any condition imposed by the memorandum or Article in connection with the transaction

Ms. Lefevre’s closing submissions

[109]    With respect to the plea of res judicata two separate issues have arisen, one, whether the post 2014 claims by Ms. Lefevre constitute claims which are res judicata and two, whether the previous Langer litigation specifically with respect to the retrospective validity given to Field to hold the additional BVP shares are to be considered res judicata. 

[110]    With regard to the first point of res judicata, it is submitted that the discontinuance of previous claims by Ms. Lefevre cannot amount to res judicata to preclude her from bringing a claim. The rules of procedure relating to the discontinuance of a suit does not bar the filing of a fresh claim on the same facts. The previous withdrawn suits were not dismissed by the court in a considered judgment and therefore no re-litigation of any claims brought by Ms. Lefevre took place.

[111]    As for the second matter of res judicata, both the cases of CA 33/2011 and CA 36/2011 Beau Vallon Properties v Joe Chung-Faye and Joseph Chung-Faye v Beau-Vallon Properties & Ors CS 117/2006 which concluded with a judgment by consent do not deal with the issues raised in the present case namely the retrospective validity of a share transfer to a non-Seychellois entity.

[112]    None of the elements as outlined in the case of Gomme v Maurel for a plea in limine litis to succeed exist in the present case, that is, there has been no adjudication by a court of the same subject matter, different parties are litigating against each other, and the subject matter, that is, retrospective validity of a share transfer to non-Seychellois has not been brought up or litigated in previous cases.

[113]    With respect to the second issue, that is abuse of process, the Respondents have not been able to demonstrate how previous cases brought against them by Ms. Lefevre and withdrawn, amount to an abuse of process or whether any prejudice has been caused to them. The cases of Gomme, (supra) and Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd [1982] 2 Lloyds Rep 132 are to the effect that an attempt to re-litigate in another action issues which have been fully investigated in a former action may constitute an abuse of process. That is certainly not the case here.

[114]    With regard to prescription, although section 200 of the Ordinance limits the time in which a challenge can be brought against a transfer of shares to two months after which notice has been received this only applies when the proper procedure for a takeover has been undertaken.  There was no proper notice to the company, no proper dissemination of the offer by the directors and no advice given as to whether the offer was proper and fair value for the shares. Drambois was not an independent company, did not have locus standi to enter into the transaction which was therefore void. Hence the issue of validity and lawfulness of the share transfer to Field in 2005 is not prescribed and must as a matter of law be determined by this Court in order to properly dispose of the case.

[115]    With regard to the issue of sanction for the retrospective validity of the share transfer, prescription does not apply as Mr. Lablache confirmed that no decision on Field’s application of retrospective validity would be made until after the conclusion of the case. There was therefore no decision made and no sanction granted. Hence if Field’s application is in abeyance its purchase of shares is void and unlawful and is not prescribed.

[116]    It also not the case that the Zakya loan was already in existence when Concordia bought the BVP shares. The issue relating to this loan is not addressed, namely whether it was lawful under Seychellois law, whether it was a fiction whether it amounted to money laundering or whether it was used to extract further profit from BVP and how the loan was dealt with as between Drambois and Concordia in their agreement for the transfer of shares and where the source of the funds was the same entity to which repayments were being made. 

[117]    Ms. Lefevre has also submitted that no decision was ever made with respect to the grant of retrospective sanction to the transactions whereby Field purchased BVP shares in 2005.  She submits that, although section 9 of IPTRA provides for documents purporting to be signed by the Minister or the Chief Executive Officer stating that the person named in the document has been granted sanction is prima facie evidence of the facts stated in the document, section 3 of IPTRA is categorical in its provision that the sanction must be granted by the Minister. In her submissions the letter of 6 September 2007 and 16 July 2013 from Principal Secretaries Veronique Herminie and Joseph François respectively do not amount to retrospective grants of sanction as only the Minister is empowered to do so pursuant to section 8 of IPTRA. She submits that Mr. Lablache’s evidence on this issue is equivocal.

[118]    In consequence she submits that Field did not have any proper title to sell the increased shares to Concordia and that Concordia could only have validly held 396,090 shares in BVP. This would mean that Concordia holds no shares in BVP and that the additional 5,390,000 BVP shares issued between October and December 2005 remain un-allotted and should be redistributed.

[119]    With regards to the section 200 procedure and the bona fides of Drambois’ offer to purchase BVP shares for USD 1, the Petitioner submits that the procedure was meant to ensure fairness to all shareholders and to ensure that the shareholders received fair value for their shares and that they were protected from any actual or perceived confits of interest arising in relation to the directors of the company whose shares were being purchased.

[120]    She submits that Mr. Zaslonov and Mr. Khlebnikov are not independent directors and have not used their directorial duties in respect of the offer by Drambois properly. They have not been able to explain how Drambois were able to glean financial information from BVP accounts when no annual return had been made and on which a reasonable and legitimate offer could be founded. No proper information was disseminated by the directors to the shareholders on the offer.

[121]    Properly speaking, a takeover offer pursuant to section 200 of the Ordinance would be for the transferor company (BVP) to make the offer to the transferee company (Drambois) via its company secretary so that the directors could assess the offer and make recommendations to the shareholders which clearly did not happen in the present case. The outstanding SR300 million Zakya loan is not given any consideration which raises questions as to the legitimacy of the proposed purchase by Drambois.

[122]    Equally Zaslonov’s evidence that the failures to circulate the requisite documentation to the Petitioner as acts of omission belies the deliberate attempt to avoid any scrutiny of BVP’s finances by anyone other than the directors of Concordia or their beneficial owners and to rid BVP of the Petitioner who would disrupt the proposed transactions.

[123]    In the circumstances the conduct of the directors amount to fraud and would negate the need for any challenge to the section 200 procedure and the application of the prescription period. 

[124]    With regard to Drambois, the Petitioner submits that it is not an independent entity and that is shareholders, Gilel and Efrat are IBCs set up and managed by Vertex Management Limited to which Mr. Zaslonov and Mr. Khlebnikov are directly linked. Drambois is clearly a vehicle set up by Mr. Zaslonov and Mr. Khlebnikov to frustrate the Petitioner’s claim against it. The fact that it is owned by two IBCs makes sanction a requirement for it to own shares in BVP. Ms. Pool effectively admitted this fact. The requirement for sanction means that the offer to purchase the Concordia shares was unlawful ab initio. Hence the section 200 procedure was never commenced and no challenge to it was required.

[125]    With regard to the unfair prejudice and oppression to the Petitioner under section 201 of the Ordinance, she submits that this is made out in the serious misconduct of the two directors, Mr. Zaslonov and Mr. Khlebnikov. She submits inter alia, that their failure to file annual returns since 2007, failure to circulate these returns, failure to make timely tax returns exposed BVP to both financial and criminal sanction to the detriment of the company.

[126]    On Zaslonov’s own evidence he took direction of a company in 2007 worth Euro 6 million and divested it of its share value to be worth only $1 to the prejudice of its shareholders. The directors also failed to properly scrutinise loans taken and the interest charged thereon and to provide information and justification for the same to the shareholders.

[127]    Moreover, and significantly, the loan taken from Zakya appears unlawful and is being used for diversion of funds from a domestic or foreign source whether or not such funds were obtained lawfully in foreign currency and were being repaid directly to the same source from which it emanated or another and in this regard has exposed the company to serious criminal sanction.

[128]    The mismanagement by the directors has either led to the company being worthless or a deliberate sham. It appears that Concordia has in fact taken profit from the company via the backdoor whilst diminishing its real profit, avoided to pay taxes to the government and dividends to its shareholders.

[129]    She has also submitted that generally Mr. Zaslonov’s evidence was not credible and various instances are given. Similarly, she submits that Pat Lablache’s evidence was an attempt to twist his evidence in earlier cases in relation to the shares allegedly purchased by Field and the grant of retrospective sanction by the Minister.

[130]    She submits that the Field application for sanction was on hold until the end of the Chung Faye cases and that therefore sanction was given to Concordia only for shares lawfully owned by Field, Fenchurch and Hanneman.

The issues to be determined by the Court

[131]    With respect to the muddled pleadings, somewhat incoherent evidence and complex submissions, this Court must first eliminate some non-issues. In the Petitioner’s rather jumbled and somewhat disjointed Amended Petition the following averment and /or prayer is made:

“The Petitioner makes this petition seeking the following relief:

1.         An order pursuant to section 107 of the Companies Ordinance for rectification of the share register…,

2.         In granting such a relief as is requested…the Petitioner requests that the court make the following declarations…:

In respect of the agreement between the Second and Third Respondents to sell the shares of the First Respondent and the subsequent attempt by the Second Respondent to trigger the provision of section 200 of the Companies Ordinance:

1.         Generally, that section 200 of the Companies Ordinance requiring that a minority shareholder… is forced to transfer property, is incompatible with section 26 (sic) of the Constitution… and Article 545 of the Civil Code…” (emphasis added)

 

[132]    However, the Petition then goes on to detail further averments and orders the Court might deem fit to make and then ends with the prayer:

“Wherefore the Petitioner prays this Honourable Court to give judgement in favour of the Petitioner and make the following orders:”

 

[133]    The orders then prayed for do not include a declaration that any particular provision of the Companies Ordinance is unconstitutional or incompatible with the Civil Code.

[134]    The Court is therefore left to wonder what remedies are being prayed for and whether the averments amount to constitutionality referrals. The fact that the Petitioner did not raise or submit on this issue at all either in the proceedings or submissions leads this Court to the conclusion that this averment is frivolous and vexatious and does not warrant a referral to the Constitutional Court. Similarly, the alleged incompatibility of section 200 with Article 545 of the Civil Code is nonsensical and merits little comment.  For these reasons, these are therefore not issues for this court to determine.

[135]    I have tried to distil from the great morass of averments, wish list and prayers the following key issues in this case to be determined are as follows:

(1)  Whether the pleas in limini litis filed by the Respondents have been successfully established.

(2)  Whether the grant of sanction made under the IPTRA in respect of the acquisition by Field Nominees Ltd of shares in BVP was valid. 

(3)  Whether Drambois’ acquisition of shares in BVP was bona fides and valid. 

(4)  Whether Ms. Lefevre was treated oppressively under section 201 of the Companies Ordinance.

 

1. Whether the pleas in limini litis filed by the Respondents have been successfully established.

Res Judicata

[136]    The Respondents have raised, in their plea in limine litis, that the petition is res judicata and an abuse of the court’s process. Thereunder, they have contended that this matter is a re-litigation of previous cases before the court.

[137]    Previous cases entered into evidence during the course of the hearing include –

(1)  CS 117 / 2006 In the matter of Beau-Vallon Properties Limited & in the matter of section 201 of the Companies Act, Joseph Chung-Faye v Beau-Vallon Properties Limited, Hans Lavigne, Fenchurch Nominees & Phil Nominees Limited – nature of action was an order to cancel the latest increase of nominal share capital of the company to what it was before the 4 November 2005 increase.

(2)  CS 225 /2007 Joseph Chung-Faye v Beau Vallon Properties.

(3)  CA 33/11 Nathalie Lefevre v Joseph Chung-Faye – appeal against the decision on 4 July 2011 in CS 225 of 2007.

(4)  CC 7/2016 Nathalie Lefevre v Beau-Vallon Properties, Concordia Investment Limited, Phil Nominees Limited, Fenchurch Nominees Limited – nature of action was an order for the rectification of the company register so as to return the nominal share capital of BVP to the position it was as at 8 September 2005.

(5)  CC15/2015 Nathalie. Lefevre v Beau-Vallon Properties, Phil Nominees & Fenchurch Nominees – nature of action was an order for an injunction preventing BVP, whether through its Board of Directors, shareholders or members of four ultimate beneficial owners, from buying, selling, transferring or otherwise disposing of any immovable properties.

 

[138]    Relying on Gomme (supra) Ms. Lefevre has submitted that the plea of res judicata cannot succeed. The Respondents have relied on the same authority and have submitted that there is unity of issues, parties and cause of action between the present case and previous cases.

[139]    It is trite that there are three pre–requisites for a successful plea of res judicata (Gomme (supra) Attorney-General v Marzorcchi (1996-1997) SCAR 225): the subject-matter should be the same, the cause of action should be the same, the parties should be the same, the previous judgment should be a final judgment of a court of competent jurisdiction. As was stated in Zena Entertainment v Lucas & Ors (SCA 04/2013) [2015] SCCA 48 (17 December 2015):

“Res judicata involves a reiteration of the same subject matter between the same parties in their same capacities. Hence a matter that has been litigated and judged cannot be re-litigated.”

 

[140]    In the present suit it cannot be said that the parties, the subject-matter and the cause of action in the previous cases are identical to that of the present suit, although there are similarities in the issues which arise and the parties involved in one way or another. While Ms. Lefevre has attempted to challenge the increase to the share capital of BVP in previous cases, the present suit is based on the alleged oppressive conduct of  Mr. Zaslonov and Mr. Khlebnikov towards Ms. Lefevre and their alleged serious misconduct or breaches of duty, which have served to prejudice Ms. Lefevre. Where the objects of multiple proceedings are different, the plea of res judicata cannot be sustained (Julienne v Julienne [1992] SLR 121).

[141]    A claim that renews an issue which has been previously decided would also be redundant on the ground of res judicata (Botel v Ruddenklau [2001] SLR 241). Ms. Lefevre withdrew her previous claims before the Court pursuant to section 182 of the Code of Civil Procedure before a final decision could be handed down. Therefore, the principle of res judicata cannot operate (see Clarisse v Sophola [2005] SLR 96; FIU v Barclays Bank [2011] SLR 369).

Abuse of process

[142]    With regard to the issue of abuse of process, the Respondent’s plea is linked to that of their submissions relating to the present matter being res judicata. Domah JA in Gomme (supra) established that res judicata is a subset of abuse of process and that abuse of process encompasses more situations, inter alia:

“where it is manifest on the facts before the court that advisers are indulging in various strategies to perpetuate litigation either at the expense of their clients who may be hardly aware or at the instance of their clients who have some ulterior motive such as of harassing parties against whom they have brought actions or others who may not be parties. Courts have a duty to intervene to put a stop to such abuses of legal and judicial process.”

 

[143]    There is in the present matter reference to previous cases concerning the entity Beau Vallon Properties. Undoubtedly, issues relating to this company have been problematic for over a decade. However, having read the decisions and scrutinised the associated court files I am of the view that the cases have been brought because shareholders have either always felt oppressed or hard done by the directors of the company or the majority shareholders in the company. This says more for the management style of the company than an abuse of the court process by the aggrieved shareholders. Perhaps Ms. Lefevre should have been more streetwise in terms of getting into bed with the entity but her present case is not an abuse of process. Rather, it is viewed by the Court as an attempt to vindicate her rights as a shareholder.

Standing

[144]    The Respondents further allege that Ms. Lefevre has no standing to bring the said suit, given that she was allegedly not yet a registered shareholder at the material time of the matters complained of in this suit. Ms. Lefevre admits that she became a shareholder following the Judgment in cases SCA 33 and 36 of 2011, following protracted disputes as to her interest in the company. Mr. Zaslonov gave evidence that Ms. Lefevre was only registered as a shareholder on the company register in August 2014.

[145]    Section 23 of the Ordinance requires the name of a member to be entered in the company’s register of members in order for them to be deemed to be a member of the said company. Subsection (3) thereof includes in its definition of a ‘shareholder’ a person who is on his own behalf in possession of a bearer share certificate, whether by himself or by an agent acting for him.

[146]    Section 84 of the Act allows for the transfer of shares by way of a written instrument, signed by the transferor and transferee and containing details of the number of shares transferred and the nominal value of these shares. A person desirous of acquiring shares have them transferred to him in pursuance of a contract of sale or other transaction. A formal contract is not necessary; if, in substance, an agreement is made, the form is not material (Ritso’s Case (1877) 4 Ch. D. 782).

[147]    Exhibit R (1) 12 (Share Transfer Form dated 13 September 2005, duly registered with the Registrar General) confirms that Ms. Lefevre was transferred 213,280 shares in BVP company for the value of SR4.69 per share (total consideration: SR1, 000,000) by Mr Chung-Faye.

[148]    Ownership in the shares passes upon the delivery to the transferee of the signed instrument of transfer along with the share certificate for those shares. The seller’s duty is performed when he hands over to the buyer a duly executed instrument of transfer, together with the certificate or its equivalent (Skinner v City of London, etc., Corporation (1885) 14 Q.B.D. 882). Within two months after allotment or transfer of shares, the company must issue to the new shareholder a share certificate in respect of the shares allotted or transferred (section 87). Upon a valid instrument of transfer of shares, duly signed, being presented to the company, the company must register the new member as a shareholder in respect of these shares (section 88). The share register kept by the company is the record of the shareholding therein and a certificate from the company is prima facie proof thereof (section 108). A transferee under a valid transfer has an absolute right to be registered unless the company has a power to refuse to register and has effectively so refused (Re Hackney Pavilion (1924) 1 Ch. 276).

[149]    The Transfer of Shares document in Exhibit R (1) 12 is sufficient to show that Ms. Lefevre was a shareholder in BVP as at 13 September 2005. Therefore, Ms. Lefevre has standing to challenge the October 2016 agreement between Drambois and Concordia.

Prescription

[150]    Ms. Lefevre accepts in her closing submissions that she failed to bring a challenge to the share transfer to Drambois within the two-month time limit as prescribed by section 200 of the Companies Ordinance. She submits, however, that a challenge could only be brought where the procedure for takeover had been undertaken properly. She further submits that the agreement between Drambois and Concordia was void ab initio given its lack of sanction, stating, “it is from the outset unlawful and [Drambois] had no capacity to enter into the agreement or even make an offer to purchase.”

[151]    Drambois contends that it is a domestic company having two international business companies as its shareholders and two Seychellois citizens as its Directors. Furthermore, it claims that in 2016 it initiated procedures for the acquisition of shares in BVP. It maintains that the procedures under section 200 were complied with, and that Ms. Lefevre failed to exercise her rights under the same section by not assenting or indicating her dissent to the offer made to purchase her shares for 0.035 USD within the prescribed time. Ms Lucie Pool confirmed in evidence that Ms. Lefevre was sent a letter regarding the offer for Drambois to purchase Ms. Lefevre’s shares dated 25 July 2016 (exhibit R2 (2)). The time limit of 2 months was specified therein. Ms. Lefevre’s counsel, Mr Elizabeth, responded by way of letter dated 2 August 2016 with a request for more information. Drambois responded to this letter on 12 August 2016 (exhibit P34).

[152]    Ms Pool conceded that because Drambois’ shareholders were international business companies, Drambois would need sanction from the Government for a purchase of shares in a company that owned immovable property.

[153]    She gave further evidence that a similar letter of offer was sent to Concordia, which was responded to on 2 September 2016 (exhibit R2 (3)), wherein Concordia indicated their acceptance to sell their shares in BVP. While Ms. Lefevre was offered 0.035USD cents (1 cent for 1% of shares) because she held 3.5% of the shares in BVP, Concordia was offered 96.5USD cents (1 cent for 1% of shares) because they held 96.5% of BVP.

[154]    Ms Pool stated that she sent a letter of notification dated 7 October 2016 to Mr Elizabeth, who was acting on behalf of Ms. Lefevre (exhibit P32). Attached thereto were statutory declarations relating to notice to non-assenting shareholders (exhibits P35 & P40). Mr Elizabeth responded, by way of letter dated 7 October 2016 (exhibit P37), indicating that Ms. Lefevre would be challenging the sale of shares in court. Ms. Pool testified that prior to this date, she was not informed that the sale was being objected to.

[155]    A company is a resident of Seychelles if it carries on business in Seychelles in a defined place; nationality and place of residence of the directors are not criteria for determining the residence of a company, nor is the size of the company’s share capital (Village Management v Geers (1995) SCAR 187).

[156]    It is clear from the facts that Drambois did not have the requisite sanction at the time of acquiring the shares, more so because of the fact that a request for retrospective sanction was made subsequent to the agreement. The lack of sanction at the material time is a criminal offence under section 6 of the Immovable Property Transfer Restriction Act (hereinafter IPTRA) but is curable under section 8 of the same, which makes provision for retrospective sanction. However, no retrospective sanction has to date been granted by the Minister.

[157]    Section 3 of the IPTRA provides as follows –

“3.   (1) A non-Seychellois may not -

(a) purchase or acquire by any means whatsoever and whether for valuable consideration or not, except by way of succession or under an order of the court in connection with the settlement of matrimonial property in relation to a divorce proceedings any immovable property situated in Seychelles or any right therein; or

(b) lease any such property or rights for any period; or

(c) enter into any agreement which includes an option to purchase or lease any such property or rights, without having first obtained the sanction of the Minister.

(d) For the purposes of subsection (1) it is immaterial whether the purchase takes place  himself is not prevented from purchasing without sanction, provided that there is an ultimate transfer for valuable consideration to a person who is prevented from purchasing without sanction.

(e) A financial institution which is a non-Seychellois shall not require sanction to purchase property which is burdened by a mortgage in favour of the said financial institution and which is sold by a Judge under the Immovable Property (Judicial Sales) Act.

(f) A court shall not make an order or decision which would have the effect of contravening or circumventing subsection (1).

[158]    Furthermore, section 5 of the same provides as follows –

“5. Any transaction effected in contravention of the provisions of sections 3, 4, 7(1) or (2) or 12 shall be unlawful and void, and in the case of a sale, any immovable property or rights therein purporting to have been transferred under such sale shall be forfeited to the Republic.”

[159]    In this regard, Article 1134 of the Civil Code provides:

“Agreements lawfully concluded shall have the force of law for those who have entered into them.

They shall not be revoked except by mutual consent or for causes which the law authorise.

They shall be performed in good faith.”

[160]    Articles 6, 1108 and 1133 of the Civil Code also provide –

Article 6. It shall be forbidden to exclude the rules of public policy by private agreement. Rules of public policy need not be expressly stated”

“Article 1108. Four conditions are essential for the validity of an agreement-

 The consent of the party, who binds himself,

 His capacity to enter into a contract,

A definite object which forms the subject matter of the undertaking,

That it should not be against the law or against public policy.”

“Article 1133. The object of an agreement is unlawful when it is prohibited by law or when it infringes the principles of public policy”

[161]    Although Ms. Lefevre would be, under normal circumstances, prescribed by virtue of the time limit imposed under section 200 of the Companies Ordinance, the agreement between Drambois and Concordia is evidently void ab initio, given its lack of sanction, and accordingly, Drambois lacks capacity to enter into the said agreement.

No cause of action

[162]    The Respondents, namely BVP, Concordia, Mr. Zaslonov and Mr. Khlebnikov have also submitted that the petition discloses no cause of action against them as the acts of directors complained of were performed by previous directors or before Concordia had obtained shares in the company. Insofar as those acts are concerned there is no difficulty in finding that they would not be responsible for those acts. However, the petition discloses other matters which are directly related to them as parties and will be dealt with below.

[163]    In the circumstances the pleas in limini litis are dismissed.

2. Whether the grant of sanction made under the IPTRA in respect of the acquisition by Field Nominees Ltd of shares in BVP was valid. 

[164]    It must be noted that the share capital of BVP was increased twice: the first time on 14 October 2005 and the second time on 5 November 2005. The evidence reveals the following:

(1)  FIRST INCREASE: Authorised share capital increase on 14 October 2005 from SR6,100,000 to SR16,000,000 with an increase in the number of shares to 1,600,000 ordinary shares of SR10-/. All unissued shares were allotted to Field Nominees Ltd on 15 October 2005.

(2)  SECOND INCREASE: Authorised share capital increase on 5 November 2005 from SR16, 000,000 to SR60, 000,000, with an increase in the number of shares from 1,600,000 shares of SR10-/ to 6,000,000 ordinary shares of SR10-/ each. All unissued shares (4,400,000 ordinary shares) of SR10-/ were allotted to Field Nominees Ltd on 10 December 2005.

[165]    The directors at the time were Hans-Jurgen Langer (21/01/1994 – 06/09/2007) and Zahra Langer (11/08/1995 – 06/09/2007). See exhibit R1-15.

[166]    The allotment of shares prior to the two share increases in 2005 was as follows:

(1)  Field Nominees Ltd: 203,387 shares.

(2)  Fenchurch Nominees Ltd: 180,036 shares.

(3)  Hanneman Holdings Ltd: 12,667 shares.

(4)  Natalie Lefevre: 213,280 shares.

[167]    The allotment of shares after the share increases was therefore as follows (see exhibit R-1 7): 

(1)  Field Nominees Ltd: 5,594,017 shares

(2)  Fenchurch Nominees Ltd: 180,036 shares

(3)  Joseph Chang-Faye / Natalie Lefevre: 213,280 shares

(4)  Hanneman Holdings Ltd: 12,667 shares

[168]    Mr. Chung-Faye brought an action regarding the increase in share capital (CS No 117/06 of 2006) which was disposed of by way of a judgment by consent in the matter of CS No. 117/06. The petitioner in that case was Joseph Chung Faye, and the respondents were: BVP (1st respondent), Hans-Jurgen Langer (2nd respondent), Zahra Langer (3rd respondent), Fenchurch Ltd (4th respondent), and Field Nominees Ltd (5th respondent). The judgment by consent is dated 13 November 2014.

[169]    The Court finds that, at the time of the share transfer, Ms. Lefevre had acquired Mr. Chung-Faye’s shares. She acquired 213,280 shares for SCR1, 000,000 by way of a share transfer form signed on 13 September 2005 and registered with the registry on 21 May 2007.  Her shareholding was registered in the member’s register on 11 April 2014 as per court case SCA 33 of 2011 and SCA 3 of 2011. Prior to this, the shares were in the name of Joseph Chung-Faye. The Court of Appeal decision (SCA 33 of 2011 and SCA 36 of 2011, delivered 11 April 2014) confirmed that the transfer of shares from Mr. Chung-Faye to Natalie Lefevre on 13 September 2005 was valid.

[170]    With regard to the share transfer to Concordia from Field Nominees Ltd and the issue of retrospective sanction, the documentary evidence shows that in 2007, the following shares were transferred to Concordia (see exhibit R (1) 11):

All of the shares owned by Field Nominees Ltd (now amounting to 5,594,017 shares) were transferred for SCR49, 945,608 by share transfer form dated 5 September 2007 and registered on 11 September 2007. (P30).

All of the shares of Fenchurch Nominees Ltd (180,036) transferred on 11 September 2007 for SCR1, 607,433 by share transfer form dated 5 September 2007 and registered on 11 September 2007.

All of the shares of Hanneman Holdings Ltd (12,667) transferred on 8 November 2007 for Euro 200,000 by share transfer form dated 5 November 2007 and registered on 8 November 2007.

[171]    As noted above, sanction for the purchase of the above shares by Concordia was not granted at the time in accordance with section 12 of IPTRA.

[172]    By letter dated 2 July 2007, Minister Morgan noted that ‘[s]tamp duty is to be paid to the Government of Seychelles on the net value of the ultimate shares of [BVP] as at 30 April 2007 owned by the following offshore companies namely Field Nominees Ltd, Fenchurch Nominees and Hanneman Holdings at a rate of 5% in US dollars equivalent’ (exhibit P26). By letter dated 20 July 2007, Minister Dugasse granted sanction retrospectively ‘for the purchase by Concordia of the shares held by Field Nominees Ltd, Fenchurch Nominees Ltd and Hanneman Holdings in Beau Vallon Properties Ltd’ (exhibit P25). The total cost of all of the shares in BVP as at 30 April 2007 was SR51, 005,479.66. The letter dated 16 July 2013 from the Principal Secretary to Mr. Verkhorubov, General Manager of Coral Strand Hotel, confirmed that:

“…the Minister granted sanction to Concordia Investment Ltd to purchase all the shares of Field Nominees Ltd, Fenchurch Nominees Ltd, and Hanneman Holdings Ltd and that such sanction was of retrospective nature and renders any past transactions regarding the said shares, namely the allotment of 990,630 and 4,400,000 ordinary shares to Field Nominees Ltd, lawful under the [IPTRA].”

[173]    The evidence of Mr. Lablache from the Ministry of Habitat, Infrastructure and Land Transport was clear on this point. He averred that the letter dated 6th September 2007 (exhibit P28) from Principal Secretary Herminie had the effect of regularising or legalising the granting of sanctions for Field Nominees Ltd, Fenchurch Nominees Ltd, Hanneman and Concordia. The Court notes that Mr. Lablache’s evidence in this regard differs from that given in the case of Chung-Faye v Beau-Vallon Properties & Ors CS 117 of 2006. In the transcript of the hearing on 5 September 2012 at 1.45pm from pg. 61, Mr. Lablache indicates that he considered that the sanction granted by the Minister in 2007 to Concordia did not cover the acquisition of the shares that Field had acquired as a result of the share increase, because Field did not have sanction to acquire those shares and thus did not legally own them. In the present case, Mr. Lablache explained that it is now clear that the sanction did in fact cover all the shares owned by Field. He specifically referred to the letter dated 16 July 2013 (exhibit P27) from Mr. Francois, Principal Secretary of the Ministry, which made it clear that it was the intention of government to grant sanction to the whole transaction. Mr. Lablache confirmed that the Principal Secretary is the CEO for the purposes of IPTRA.

[174]    Whether the granting of retrospective sanction by the Minister was improper or not is not an issue to be entertained by this Court in the present case. They do not form part of a judicial review exercise and were in any case not challenged within the statutory limitation period. The Court accordingly finds that both the transfer to Field Nominees Ltd of the unissued shares as a result of the two share increases in 2005, and the subsequent acquisition of the shares by Concordia of the shares from Field Nominees Ltd, Fenchurch Nominees Ltd, and Hanneman Holdings Ltd in 2007, received the necessary sanction for the purposes of IPTRA.

3. Whether Drambois’ acquisition of shares in BVP was bona fides and valid. 

Amendment to the Memorandum and Articles of Association

[175]    The Court finds that notification of an extraordinary meeting to be held on 14 August 2015 to adopt new Memorandum and Articles of Association (M & A) for BVP was sent to the Ms. Lefevre on 23 July 2015 by email (exhibit R1-13). The new M & A was attached to this email. The notice is affixed with a seal from Lucie Pool that it was sent electronically on that date. Evidence was also provided that notification was provided by post. Ms. Lefevre admitted under cross-examination that she received an email about this meeting. The Court accordingly finds that Ms. Lefevre was notified in advance of this meeting.

[176]    Ms. Lefevre was not present at the meeting which took place on 14 August 2015. The new M & A was adopted by a resolution of members present (exhibit R1-14) and registered on 1 March 2016. The minutes of the meeting note:

‘Ms. Nathalie Lefevre did not show up. After 20 min of waiting the Chairman has noted that the number of shares authorized to vote is sufficient for voting and in accordance with the Articles of Association of the Company and declaring the meeting open.’

 

[177]    Concordia was the only shareholder present at the meeting (see exhibit P14). Under BVP’s Memorandum and Articles of Association, an adjournment should have been taken (exhibit P24, cl.16 and 17). Mr. Zaslonov said in evidence that he could not recall if this happened. The date of the meeting indicates that the necessary adjournment was not taken. The meeting was therefore inquorate. The new M & A are therefore invalid.

[178]    This has implications for the compulsory acquisition of Ms. Lefevre’s shares in 2016 which is addressed below. The compulsory acquisition was carried out according to the new M & A which was, as per the finding above, invalid. The previous M & A was / is therefore still valid. Under the previous M & A (exhibit P24), provision is made for the acquisition of shares by a shareholder with at least 80% of the company shareholding. However, the process set out in the previous M & A – namely that the holders of at least 80% of the issued capital serve the company with a requisition for the transfer of shares, give notice to the shareholders of the same etc. – was not followed in this case (see cl. 11(f)). The compulsory acquisition was not therefore conducted in accordance with the company’s M & A.

Compulsory acquisition of Ms. Lefevre’s shares

[179]    The Court makes the following findings on the evidence regarding the compulsory acquisition of Ms. Lefevre’s shares.

[180]    On 25 July 2016, Ms. Pool, counsel for Drambois, notified Ms. Lefevre of an offer to purchase her shares in BVP. The letter (exhibit P 32) stated:

“I, Lucie A. Pool, acting on behalf of the Company Drambois Investment Ltd propose an offer to purchase 213,280 shares of the Company Beau Vallon Properties Limited for the sum of 3.5 cents USD as per 1 cent for 1% of shares since you hold 3.5% of shares of the company Beau Vallon Properties Limited.”

[181]    The said price is based on the annual returns of the Company for the last five years and independent analysis of the market value of shares of the Company Beau Vallon Properties Limited.

[182]    The price offered was notably low or even derisory. Ms. Pool gave evidence that she had not herself been provided with information regarding the price offered: she was only instructed to write the letter. Mr. Zaslonov said that Drambois had been given access to BVP’s financial information, and had also commissioned a valuation from ACM Auditors. A representative of Drambois did not appear to give evidence. The ACM Auditors’ report was not provided to the Court.

[183]    Ms. Lefevre was given two months upon receipt of the letter confirming whether she accepted or rejected the offer.

[184]    On 2 August 2016, Mr. Elizabeth replied to the letter on Ms. Lefevre’s behalf asking for details of the prospective sale, including the total price being offered, and regarding the prospective buyer (exhibit P33). 

[185]    By letter dated 12 August 2016, Ms. Pool replied to Mr. Elizabeth responding to the questions therein. In particular, she noted that:

“The offer was 1 USD per 100% of the shares of the company, therefore the total price that was offered to Natalie Lefevre for 3.55% of shares of the Company is 0.035 USD.”

[186]    Ms. Lefevre did not respond to this letter. She avers that she was advised by her lawyer that the offer was invalid because – contrary to what Ms. Pool stated in her letter – the proposed buyer was not a Seychellois company, and therefore needed to obtain sanction in order to proceed.

[187]    By letter dated 2 September 2016, counsel for Concordia informed Ms. Lefevre of the Board Resolution passed on 15 August 2016 whereby Concordia accepted Drambois’ offer (exhibit R2-3).

[188]    On 7 October 2016, Ms. Pool notified the petitioner by letter, subject: Letter of Notification (P36). This letter stated:

“I, Lucie A. Pool, acting on behalf of the Company Drambois Investments Ltd., would like to inform you that on 8th September 2016, Drambois Investments Ltd received an acceptance of the offer from Concordia Investment Ltd to transfer 5,786,720 shares of the Company Beau Vallon Properties Ltd for the sum of 96.5 cents USD as per 1 cent for 1% of the shares of the Company.”

At the same time, I have received a letter from Mr. Frank Elizabeth dated as 2nd August 2016 requesting the information concerning the process of purchase. The reply was sent shortly. However, neither acceptance of the offer nor dissent of the offer from your side was obtained. Since Concordia Investment Ltd holds 96.5% of the shares of the Company Beau Vallon Properties Ltd which constitutes the majority of the shares, Drambois Investments Ltd, is entitled to acquire the rest of the shares of the Company Beau Vallon Properties Ltd.”

[189]    The notification and declaration in accordance with Article 200 of the Ordinance was enclosed – see exhibit P40 (notice to non-assenting shareholders, dated 6 October 2016).

[190]    On the same date, being 7 October 2016, Mr. Elizabeth sent a letter to Ms. Pool advising her that his client objected to the sale of any shares of the company to third parties without first being given the opportunity to exercise her peremptory rights under the Companies Ordinance 1972. He put her on notice that the sale would be challenged in Court. 

[191]    A letter dated 20 December 2016 from the Law Chambers of Clifford Andre addressed ‘to whom it may concern’ noted that on 14 December 2016, he received from Drambois the sum of 3.5 cents USD in favour of Ms. Lefevre ‘as full payment of 213,280.00 ordinary shares standing in the name of Natalie Lefevre in the register of [BVP]’. The letter noted that the sum was paid ‘pursuant to offers made by the said company dated 25 July 2016 and 7 October 2016’. The letter indicates that Ms. Lefevre would be informed by way of post to the address of her legal counsel (exhibit R2-4).

Transfer of shares from Concordia to Drambois – Absence of sanction

[192]    Ms. Pool noted in her letter of 12 August 2016 to Mr. Elizabeth, that the ‘Company’s directors and beneficial owners are citizens of Seychelles, hence, there is no need to seek sanction’. However, the evidence indicates that the beneficial owners of Drambois are in fact two IBCs. Therefore, it was necessary to get sanction for the purchase under the IPTRA, as Ms. Pool confirmed when she gave evidence. No evidence has been presented to the Court that such sanction was or has since been granted. As already noted above, the Court therefore finds that the acquisition of the shares by Drambois was not valid pursuant to the IPTRA.

Value of the shares

[193]    The value of the shares of BVP was an ongoing point of contention in this case.

[194]    As noted above, Drambois valued all the shares in BVP as at July 2016 at 1USD, which placed the price per share at a fraction of a cent. However, Drambois provided no evidence as to how they came to this value. The letter from Ms. Pool to Ms. Lefevre on 25 July 2016 says that the price is based:

 ‘…on the annual returns of the Company for the last five years and independent analysis of the market value of shares of the Company Beau Vallon Properties Limited’.

[195]    It became apparent that the ‘independent market valuation’ referred to was a valuation carried out by ACM Auditors. This valuation was not provided to the Court, nor any other information regarding the process adopted by Drambois in arriving at a value of 1USD. Concordia, which accepted the offer – provided no evidence as to how they satisfied themselves that the value represented fair consideration. The testimony of Mr. Zaslonov also did not shed any further light on this matter.

[196]    Ms. Lefevre provided a report prepared by Mr. Maurel from Premium Realty dated 12 March 2016 (exhibit P22). Mr. Maurel is a real estate agent. His report estimated the market value of BVP. The total value of the building and surroundings was valued at USD 10,150,000, and the land was valued at USD 5,283,000 (a total of USD 15,433,000). These figures are set against the future income, total debt and cash in hand of the business on the final page of the report to calculate a ‘Business and Land Value Estimate’ of USD 27,844,370.  Counsel for Drambois did not cross-examine this witness, and counsel for the other respondents only challenged the expertise of Mr. Maurel. The Court, however, agrees with the respondents that – while the witness may have been well-qualified to provide a value of the land and buildings owned by BVP – he was not similarly well-placed to assess the financial situation of the company. It is also not clear from the report itself what financial information was relied upon. BVP, which initially commissioned the report, did not expressly accept the valuation provided in the report when it was prepared.

[197]    A valuation prepared by Mr. Roucou was also provided by Ms. Lefevre. He valued the current market value on 16 May 2018 at SCR 256,100,000, comprising of land valued at SCR58, 000,000, buildings at SCR 189,600,000 and external and other infrastructure at SCR8, 500,000.

[198]    In the absence of any clarity regarding the value of the shares, the Court ordered that an independent valuation be undertaken. The report, prepared by Moustache and Associates dated 25 April 2019, values the shares of BVP as at 31 December 2017. The main methods used were: earning capacity method; net asset method; and discounted cash flow method. The report confirms that the authorized capital of the company is SCR 60,000,000 divided into 6,000,000 shares with a par value of SCR 10-/ each. The share capital distribution at December 2017 was: Concordia – 96% and Natalie Lefevre – 4%. This appears to have been rounded up. More accurate figures are 96.4% and 3.6% respectively. The report values BVP’s total assets as at December 2017 to be SCR 300,201,920 and the total equities and liabilities at exactly the same amount, i.e. SCR 300,201,920.

[199]    The report values the price per share of BVP to be SCR 14.58. This was subsequently amended in the letter dated 16 May 2019 from Mr. Moustache. This letter notes a further assumption that should have been noted in the report regarding accumulated debts/payables, and the implications of this. He concludes:

“As a way forward we suggest one further option with the treatment of this liability.

The amount of SCR 218,953,798 as at December 2017 be discounted at 5% per year to December 2023, which is SCR 171,556,030-/, (see page 3).

This would yield a share price of SCR22.39 which could then be aggregated with the price obtained in the Net Asset Method of SCR15.38 to arrive at a final recommended share price of SCR18.89.”

[200]    On the evidence provided, the Court considers the most reliable assessment as to the value of the shares in BVP is the report provided by Moustache and Associates. This report valued the price per share to be SCR 18.89 as at 31 December 2017. On the basis of that value, the petitioner’s shares were worth SCR4,028,859.20. The Court therefore finds that the consideration offered by Drambois – which was purportedly based on the audited reports (like the Moustache report) – did not represent fair consideration.  

[201]    The Moustache report is, however, based on the audited financial statements of BVP. A question remains regarding the accuracy of these reports given the finding above regarding the legality of the loans recorded therein. Evidence has been adduced that at least some of these loans are unlawful. In particular, Mr. Zaslonov admitted that BVP received several loans from a company called Zakya. These loans were apparently (though the Court was provided with no documentary evidence) unsecured, in foreign currency, and without personal guarantees. The loans were significant – allegedly around SCR175,000,000 according to Mr. Zaslonov. He admitted that Zakya was an IBC. The company’s auditor, Ms. Gemma Roberts, was unable to throw any further light on these loans, even when pressed by the Court. Despite having been requested, further documentation substantiating the loans was not provided. Section 5 (2) (b) and (c) of the International Business Companies Act 2016 is categorical that a Seychellois IBC may not inter alia own an interest in an immoveable property situated in Seychelles or carry on banking business in or outside Seychelles. In the circumstances, I find that these loans were illegal. This matter is addressed further below in orders.

[202]    The Court thus finds that the purported transfer of shares from Concordia to Drambois was not bona fides because (1) BVP and its directors, and Drambois, failed to follow the appropriate procedure under the applicable M & A; (2) Drambois did not have the necessary sanction to purchase the shares of Concordia; and (3) the value provided by Drambois did not represent fair consideration for the shares acquired.

 4. Whether Ms. Lefevre was treated oppressively under section 201 of the Companies Ordinance.

[203]    Section 201 of the Companies Ordinance provides in relevant form:

“201. (1)   Any shareholder of a company who complains that the affairs of the company are being conducted in a manner which is oppressive or unfairly prejudicial to some part of the shareholders (including himself) or, in a case falling within section 190(3), the Registrar, may make an application by way of petition to the court for an order under this section.

(2)  If on the hearing of the application the court is satisfied either: -

(a) that the applicant, either alone or together with other shareholders, has been treated oppressively in one or more respects over a period of time, or that action has been taken by the persons who are or were in control of the affairs of the company, being action which was known by them to be likely to prejudice unfairly the interests of the applicant, either alone or together with other shareholders; or

(b) the persons who are or were in control of the affairs of the company have been guilty of serious misconduct or breaches of duty which has or have prejudicially affected the interests of the applicant, either alone or together with other shareholders; the court may, with a view to bringing to an end or remedying the matters complained of, make such order as it thinks fit, whether for regulating the conduct of the company’s affairs in future, or for the purchase of the shares of any shareholders of the company by other shareholders of the company or for the acquisition of any such shares by the company and, in the case of such an acquisition by the company, for the reduction accordingly of the company’s capital, or otherwise.

(3) Without prejudice to the generality of its powers under the last foregoing subsection, the court may order that: -

(a) an action or other proceeding shall be brought in the company’s name and conducted by any person (including the Registrar) appointed by the court;

(b) a director, managing director or other officer or an auditor of the company shall be removed from any office, appointment   or employment   held by him under the company   or its holding   company   or subsidiary, and that some other person nominated   or approved   by the court shall be appointed to any such office, appointment or employment in his place;

(c) any person shall be appointed to be a director or managing director of the company or of its holding company or subsidiary on such terms and condition as the court thinks fit;

(d) a dividend shall be paid by the company to shareholders or any class of shareholders of the company or by a subsidiary of the company to the company;

(e) any person shall pay damages or compensation to the company or to the applicant for any loss suffered in consequence of that person’s misconduct or breach of duty…”

[204]    Ms. Lefevre avers that the conduct of Mr. Zaslonov and Mr. Khlebnikov, Directors of BVP were oppressive, unfairly prejudicial and constitute serious misconduct or breaches of duty. Ms. Lefevre further avers that they, together with Drambois, have:

“failed to promote the interests of the company above their own interests, failed to enhance the interests of the shareholders as a whole and in particular [herself]; failed to give any or any sound financial reason for the sale of the company, failed to circulate any proper or any financial details about the sale; failed to justify why the company is only valued at US$ 1 when it holds significant property interests and has a declared annual profit of over US$ 3 million.”

 

[205]    Details of the directors’ misconduct or breaches of duty have been further particularised as a failure to abide by procedural requirements, (termed by Ms. Lefevre to be ‘breaches’ and by Mr. Zaslonov to be ‘omissions’).

[206]    In particular, Ms. Lefevre has made an issue of the directors not obtaining the authorisation of a general meeting to increase the share capital of BVP and to dispose of the shares in BVP without due process and contrary to the Ordinance.

[207]    It is trite that if one’s share carries a vote but the company refuses to record it, an individual membership right is infringed. In the words of Sir George Jessel M.R in Pender v Lushington (1877) 6 Ch.D. 70, 80 –

“He is a member of the company, and whether he votes with the majority or the minority he is entitled to have his vote recorded – an individual right in respect of which he has a right to sue.”

 

[208]    Ms. Lefevre has also particularised the two director’s failure to hold general annual meetings or to notify her of the same to allow her to attend such as and when convened; not submitting annual returns; not lodging the return of allotment of shares with the Registrar of Companies at all therefore failing to do so within the prescribed time; failing to offer in no ambiguous or uncertain terms the issued or new shares to Ms. Lefevre for subscription in proportion to the nominal value of her shareholding in the company; failing to comply with the procedure of making a rights issue by failing to send an explanatory letter to her accompanied by a provisional allotment letter in respect of the shares to which each member is entitled to apply; failing to attach a form of acceptance and a form of renunciation to enable her to exercise her rights to the shares or renounce her rights to apply for the same; generally withholding information from the shareholders; unlawfully changing the Articles of Association of BVP; unlawfully diluting her shares; giving fictitious loans from BVP to their sister company, namely Savoy Development Limited, in which they also held directorship position in direct or indirect, immediate or prospective conflict of interest without disclosing their respective interests to the meeting of directors.

[209]    Some of these issues have already been addressed. However, in general the Court finds that the actions of the directors were in breach of multiple provisions of the Ordinance. 

[210]    Specifically, section 119 of the Ordinance makes provision for the yearly general meetings to be conducted by the company. Mr. Zaslonov gave evidence of only one meeting where notice was sent to Ms. Lefevre via mail and email. This was an extraordinary meeting, which was held in August 2015 (exhibit R 1 (13)).

[211]    With respect to the submission of annual returns, section 114 of the Ordinance makes provision for a company’s duty to submit their annual returns to the Registrar. Section 114 (3) provides for penalty fines to be incurred for non-compliance with this requirement. Mr. Zaslonov admitted in cross-examination to preparing annual returns, but not filing them. The tax returns for 30 December 2012, 2013, 2014 and 2015 were filed on 30 December 2016. The tax return for the year ending 2016 was filed on 28 November 2017. The 2017 tax return has not yet been filed.

[212]    With regard to the offer of new shares, under section 173(1) of the Ordinance, the directors were bound to offer, in no ambiguous or uncertain terms, the new shares for subscription to the existing shareholders, including Ms. Lefevre. Mr. Zaslonov admitted in evidence that notice was not given by BVP or any of its Directors to Ms. Lefevre to advise her of Drambois’ offer to purchase shares in BVP, citing it as an ‘omission’. However, he believed that Drambois had already informed Ms. Lefevre of the same. Mr. Zaslonov also admitted to not circulating the ACM report to all shareholders.

[213]    Section 20 of the Ordinance requires that an alteration the memorandum of association be made by special resolution. Mr. Zaslonov gave evidence that an extraordinary meeting, to which Ms. Lefevre was invited, was held in August 2015 (exhibit R 1 (13)), with the object of changing the whole body of the M & A of the company “because [they] became absolutely obsolete”. He explained that the old memorandum (exhibit P24) reflected the company’s former business of planting, irrigation and cultivation, which were no longer the objects of BVP, but otherwise there was no alteration that would cause a disadvantage to any of the shareholders. The Court finds that Ms. Lefevre was notified of the 2015 extraordinary meeting and provided with the proposed amendments to the M & A. Mr. Zaslonov gave further evidence that a draft M & A which was approved by resolution of members were sent to Ms. Lefevre by way of notice (exhibit R 1 (14)) – though this is denied by her.

[214]    It is also trite that it is the duty of a director of a company to avoid a conflict of interest and this is strictly applied. The duty is breached whether or not the directors had fraudulent motives. There will be a breach of this duty where the director has put his or her own interests ahead of the interests of the company.

[215]    Section 171 (g) of the Ordinance provides –

“If directors have any interest, whether direct or indirect, immediate or prospective, in any contract or transaction or proposed contract or transaction with the company, to disclose each of their respective interests to the meeting of the directors.”

 

[216]    Directors who put themselves in a conflict of interest situation which could amount to a breach of their fiduciary or statutory duty to avoid liability for the breach, must disclose the details of their personal interest and obtain the company’s fully informed consent.

[217]    In Orangines (Pty) Ltd v St Louis Hillside (Pty) Ltd [1996] SLR 185, the Court refused to entertain a sale of land by a director acting for a company to another company in which he was also acting as a director. The Court held that although the director of a proprietary company had the power to sell the assets of the company under section 34 (2), he was also acting in breach of his fiduciary duties to the vendor company by purchasing the parcel through a company of which he was the beneficial owner.

[218]    Several issues were raised in relation to loans given and taken by BVP. In regards to loans given, Mr. Zaslonov admitted in evidence that BVP paid the car park construction bill of Savoy Development. He also admitted that he is a Director of Savoy, but denied that he had any interest in Savoy. BVP also gave a loan to Eastern European Engineering, which Mr. Zaslonov is also a Director of – though he claimed not to be a shareholder. He is unsure if Mr. Khlebnikov has shares in that company. He stated that Concordia approved these loans through its proxy at the meetings held each year, and denied that Ms. Lefevre made any queries concerning the accounts of BVP. As noted above, annual returns were consistently filed late, so Ms. Lefevre would not have had access.

[219]    In relation to loans taken, specifically large loans allegedly from the IBC Zakya, this is addressed both in the court’s considerations above and in its orders below.

[220]    In respect to Mr. Zaslonov and Mr. Khlebnikov transferring shares in BVP to Concordia, a non-Seychellois corporate entity, without prior sanction to purchase the new issued shares contrary to law it is noted that directors are under a fiduciary duty to act in good faith and in the best interests of the company.

[221]    Section 171 (1) (c) of the Ordinance provides that:

“it shall be the duty of the directors of a company to exercise their powers in good faith in what they reasonably consider to be the interests of the shareholders of the company as a whole and for the respective purposes for which such powers are explicitly or impliedly conferred.”

 

In this respect, directors are presumed to do so unless proven otherwise.

[222]    Section 171 (2) (a) of the same further provides that the:

 “duties imposed by this section shall be owed to the company, and not to the members, shareholders, debenture holders or creditors of the company, but an application may be made to the court by any shareholder or debenture holder for a declaration that any act or transaction, or proposed act or transaction, by the directors or any director or former director involves a breach of any of their said duties, and if the court makes such a declaration it may issue an injunction to restrain the directors or any director or former director from doing any such proposed act or entering into any such proposed transaction.”

 

[223]    The good faith aspect of both the fiduciary and statutory duties requires directors to genuinely believe that they are acting in the best interests of the company; directors will not comply with their duty merely because they assert that they have an honest belief that their actions are in the best interests of the company. In Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239, Owen J stated that while it is not the court’s role to second-guess directors about management decisions, directors will breach their duty

“if, on consideration of the surrounding circumstances (objectively viewed), the assertion of directors that their conduct was bona fide in the interests of the company and for proper purposes should be doubted, discounted or not accepted.”

 

[224]    The duty is breached if a director acts in a manner that no rational director would have considered to be in the best interests of the company (ASIC v Adler [2002] NSWSC 171). Bowen LJ explained the reason for this in Hutton v West Cork Railway Co (1883) 23 Ch D 654 –

“Bona fides (good faith) cannot be the sole test, otherwise you might have a lunatic conducting the affairs of the company, and paying its money with both hands in a manner perfectly bona fide yet perfectly irrational”.

 

[225]    The duty to act in good faith in the best interests of the company means that directors must act in the best interests of the shareholders as a collective group. Evershed MR, in Greenhalgh v Arderne Cinemas Ltd [1951] Ch 286, stated –

“[T]he phrase, ‘the company as a whole’, does not (at any rate in such a case as the present) mean the company as a commercial entity distinct from the corporators: it means the corporators as a general body”.

 

[226]    The directors’ duty to act in good faith and in the best interests of the shareholders does not mean that they owe duties to particular shareholders. In some special circumstances, a director may owe fiduciary duties to an individual shareholder. For such circumstances to arise, the director must have been in direct and close contact with the individual member so that the director caused the member to act in a certain way which turned out to be detrimental to them (Peskin v Anderson [2001] 19 ACLC 3001).

[227]    Directors must exercise their power in the interests of their company, but in so doing they may also promote their own interests as shareholders to the detriment of other shareholders. In such cases, the courts will not intervene unless it is established that their motivating purpose was improper, even if they are also motivated by some subsidiary proper purpose.

[228]    Issuing shares for an improper purpose may constitute oppressive or unfair conduct and enable a shareholder to obtain a remedy under section 201 of the Companies Act, which allows minorities within a company to take action to protect them against oppressive majority decisions.

[229]    ‘Oppressive’ conduct in this context has been interpreted to mean that the company has exercised its authority “in a manner burdensome, harsh and wrongful” (Re Westbourne Galleries Ltd [1970] 1 W.L.R.1390). It has to go beyond what is required to make out a case for a winding-up order and has to indicate some lack of probity or fair dealing towards one or more members of the company (Re Lundie Brothers Ltd [1965] 1 W.L.R. 1051, 1058).

[230]    Isolated acts of oppression are not normally sufficient to justify relief under the section: the words used in the section, ‘the affairs of the company are conducted in a manner oppressive’ suggests prima facie a continuing process (Re H. R. Harmer Ltd [1959] 1 W.L.R 62).

[231]    An act of omission might amount to oppressive conduct if it was shown that it had been designed to achieve some unfair advantage over those claiming to be oppressed (Re Five Minute Car Wash Service Ltd [1966] 1 W.L.R. 745, 752). Allegations of unwise, inefficient and careless conduct against a director in the performance of his duties could not in themselves give rise to any claim for relief under the section, and a petition limited to such allegations would be dismissed in limine (Re Five Minute Car Wash Service Ltd).

[232]    The court has adopted a circumstance-based approach to assessing whether there has been oppressive conduct. For instance, in several cases the court has considered the directors’ powers to issue shares to be oppressive, and it has been held that “directors are not entitled to use their power of issuing shares merely for the purpose of maintaining their control or the control of themselves and their friends over the affairs of the company, or merely for the purpose of defeating the wishes of the existing majority of shareholders” (Piercy v S. Mills & Co Ltd [1920] 1 Ch. 77, 84).

[233]    In Hogg v Cramphorn [1967] Ch. 254, 266-268, in the face of an unwelcome take-over bid, the directors issued 5,707 preference shares to a trust newly established for the benefit of the company’s employees, the trustees being provided by the company with an interest-free loan in order to be able to subscribe to the shares. The votes attached to the shares coupled with those of the directors and their friends were sufficient to constitute a majority of the general meeting, and the bid was defeated. A shareholder of the company challenged the validity of the allotment. The Court, in holding that the directors had acted for an improper purpose made it clear that the requirement to act for a proper purpose was distinct from the requirement that directors act bona fide.

[234]    In Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285, the High Court explained that where there was more than one purpose for a share issue, the ‘but for’ test should be applied to work out whether the directors breached their duty and issued the shares for an improper purpose. An allotment of shares will be invalidated if the impermissible purpose is causative in the sense that, but for its presence, no allotment would have been made. The Court held –

“As a matter of logic and principle, the preferable view would seem to be that, regardless of whether the impermissible purpose was the dominant one or but one of a number of significantly contributing causes, the allotment will be invalidated if the impermissible purpose was causative in the sense that, but for its presence, ‘the power would not have been exercised’ [Mills v Mills (1938) 60 CLR 150 at 186 per Dixon J]”.

 

[235]    In Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821, the Privy Council held that directors may act for improper purposes even where a share issue is not motivated by self-interest. Directors breach their duty to act for proper purposes if they use their power to issue shares for the purpose of creating a new majority shareholder or to manipulate control within the company. This is so even where the directors may honestly believe their actions are in the best overall interests of the shareholders.

[236]    A resolution constitutes a fraud on the minority if it is not passed bona fide for the benefit of the company as a whole (Lindley M.R. in Allen v Gold Reefs of West Africa [1900]1 Ch. 656, 671), or its effect is “to discriminate between the majority shareholders and the minority shareholders so as to give the former an advantage of which the latter was deprived” (Evershed M.R. in Greenhalgh v Arderne Cinemas Ltd [1950] 2 All E.R. 1120, 1126).

[237]    Mr. Zaslonov gave the following evidence during the hearing to show that any omissions or breaches on the directors’ part were deliberate and motivated ultimately by an improper purpose –

“Q: Alright, and those annual returns were not disclosed?

 

A: To whom not disclosed? It was disclosed to Concordia, it is only known shareholders because of this pending cases from the year 2009. The 2nd shareholders were not established and under advice of Mr Pesi Pardiwalla, who was our counsel at the time. So we were not recognising Ms Lefevre as the 2nd shareholder. So it was not given to her.”

 

Further, when asked whether he would be amenable to the shares being sold to Ms. Lefevre for 96 cents, Mr. Zaslonov replied,

 

 “well, Ms. Lefevre is known to us and definitely not as a person who we entrust the company. Ms. Lefevre has only approached the Directors and Hotel only for purpose to snatch some few millions. And just negotiate some millions to give to her, she never took part in affairs of the Hotel, never interested, never even step on premises …” and further added, “No, I do not think she deserved it.”

 

[238]    In their closing submissions the Respondents have claimed that the remedy under section 201 by Ms. Lefevre is not maintainable against Mr. Zaslonov and Mr. Khlebnikov for acts performed by previous directors and shareholders. That much is accepted by the Court. However, in terms of their actions relating to loans taken and transfers of shares as detailed in this judgement, the remedy is maintainable. Since they became directors they are accountable to the company and the shareholders.

[239]    The Court therefore finds that the actions of the directors of BVP, namely Mr. Zaslonov and Mr. Khlebnikov as detailed above were oppressive, unfairly prejudicial to Ms. Lefevre and constitute serious misconduct or breaches of duty which were detrimental to BVP as a whole.

Alleged offer to buy Ms. Lefevre’s shares

[240]    A final note is made about the alleged offer to buy Ms. Lefevre’s shares for the sake of completeness. Ms. Lefevre averred that she had an agreement with (some of) the respondents for the purchase of her shares. She discussed the sale of her shares with Mr. Eduard Gevorkyan. However, it is not clear who Mr. Gevorkyan was representing at the time: his email address from the initial correspondence indicates that he is part of the Guta Group, but thereafter he appears to have used a personal email address. Ms. Lefevre also met with Mr. Zaslonov to discuss the sale of her shares. Finally, she also gave evidence that she met with one of the owners of the Guta Group to discuss this offer. This evidence was not challenged by the respondents.  

[241]    The email correspondence indicates that there were discussions between Ms. Lefevre and representatives of BVP and/or the Guta Group and/or Concordia regarding the sale of her shares. There is no indication, however, that any price was agreed. The email from Mr. Gevorkyan to Ms. Lefevre on 25 February 2013 – which was prior to the Court of Appeal judgment confirming the validity of her shareholding – asked if she could ‘please send the signed letter as we discussed last time together with your proposals as an ‘agreement’ asap’. The next email provided by Ms. Lefevre on the subject is almost two years later in January 2015 when she sent an email to Mr. Gevorkyan and Mr. Denis Savoy. She also referred to an offer in an email sent to Mr. Zaslonov and Mr. Khlebnikov and copied to Denis Savoy, Pesi Pardiwalla, Eduard Gevorkyan and ‘Denis V’ (Executive, Coral Strand) dated 30 July 2015. However, none of these emails include an agreement as to price for her shares. Nor do the emails clarify what entities would be party to such an agreement.

[242]    The Court therefore finds that there was no valid agreement between Ms. Lefevre and Concordia or other associated entity for the purchase of her shares.

The Registrar of Companies (6th Respondent)

[243]    An action against the 6th Respondent can only be maintained if there is an allegation of fraud in terms of section 39 (3) of the Companies Act (S. Palani Batcha vs Christopher Gopal & Anor (Civil Side No. 16 of 2011) [2011] SCSC 96 (01 December 2011)). There has been no such allegation and the action against the Registrar is hereby dismissed.

 

 

Relief

[244]    Ms. Lefevre has narrowed down just over four pages’ worth of prayers for relief in her amended petition to five paragraphs in her closing submissions (ref para [101] of Ms. Ms. Lefevre’s closing submissions, wherein it is stated, ‘In respect of the relief sought, Ms. Lefevre submits that the Court can [inter alia] make the following Orders [set out, where relevant, in order of preference of Ms. Lefevre]’). These prayers for relief are reproduced again below:

 

(1)  That the agreement and purported transaction between the 2nd and 3rd Respondents be declared unlawful and void and any steps taken in relation to cementing that agreement be declared void and set aside.

 

(2)  That the 3rd Respondent be ordered to sell its shares to the Petitioner on the same terms and conditions it has stated it was to sell to the 2nd Respondent.

 

(3)  Alternatively, that the Court declares that Field did not have sanction to purchase the additional 5, 390, 000 shares in the 1st Respondent and these shares remain unallotted. The Register of Shares should be rectified to reflect this and the Petitioner and the 3rd Respondent are entitled to purchase the unallotted shares in the 1st Respondent in 35% / 65% pro-rata proportions accordingly, and at the original nominal value of those shares in November 2005.

 

(4)  Alternatively, the Court orders the 3rd Respondent to purchase the Petitioner’s shares on the basis of its original agreement with Accredo/HJL in 2007; that is that it pays the equivalent of 18.5% of the total value of the company for the Petitioner’s shares, such value to be determined by an independent valuation and subject to any provisos, conditions, qualifications or other issues highlighted by the independent auditors.

 

(5)  That the 1st Respondent and its Directors be investigated by the Inspector of Taxes, the Company Registrar [and the relevant Financial Reporting Authority] in relation to its dealings and liabilities incurred towards the various IBCs and other entities and the source of such loans and destination of such repayments.

 

 

[245]    She had also prayed for an order for damages jointly and severally against Drambois, Concordia, Mr. Zaslonov and Mr. Khlebnikov in the sum of SCR 1,000,000 for inconvenience, distress, anxiety, mental anguish and trauma.

[246]    The Court, where requested to intervene under section 201, is given very wide powers. The operation of section 201 is not limited to winding up remedies and instead the Court is possessed with wide discretion and powers under section 201(2) of the Act (see Pennington's Company Law, 5th Edition, Chapter 17, p 743; Minority Shareholder's Rights, Sweet & Maxwell 1990 Edition, R. Hollington, p45).

[247]    The Petition also included the following prayer for relief –

“For 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.”

[248]    In circumstances such as the present, fashioning a fit and proper remedy is an evidence-dependent exercise. I note that there was no evidence to show that either Mr. Zaslonov and Mr. Khlebnikov benefited personally from their actions or those of BVP. However, they still acted to the detriment of the company and at least one of the shareholders. The fact that both Mr. Zaslonov and Mr, Khlebnikov are also directors or officers of other companies related or associated with Beau Vallon Properties such as Savoy and EEL and which have benefited from the matters complained of in this suit is also noted.

Orders

[249]    Section 201 (3) (e) of the Ordinance in particular provides that the Court may order that any person shall pay damages or compensation to the applicant for any loss suffered in consequence of that person’s misconduct or breach of duty.

[250]    The Court had hoped to be in a position to make an order regarding the value of the shares in BVP. Unfortunately, due in large part to the reluctance of the respondents to provide the Court with the necessary evidence, the Court is not in a position to do so. The Moustache report values the shares at SCR 18.89 as at 31 December 2017. On the basis of that value, Ms. Lefevre’s shares were worth SCR 4,028,859.20. However, the Court has made a finding that at least some of the loans taken by BVP were illegal. Mr. Moustache testified that, if the liabilities as identified in the audited reports were not enforceable or proper, the figures in his report would be different as in certain instances those liabilities would not need to be taken into account. The Court cannot therefore rely on the value in the Moustache report.

[251]    Ms. Roberts, the auditor of BVP testified that she had satisfied herself that the liabilities included in BVP’s audited financial statements were not materially misstated. Section 158(7) of the Ordinance, read with section 153(5), imposes on auditors a duty to include in their report on a company’s accounts a statement or correction of a director’s annual report which may be false, deceptive, misleading or incomplete. The Court has made a finding that at least some of the loans made to BVP are illegal. The Court is not however clear as regards the precise nature of those loans, including the precise value of the loans. The Court is also concerned that some of these loans may be fictitious. Accordingly, this Court orders Ms. Gemma Roberts to provide the documentation in support of BVP’s liabilities contained in her reports since 2009. This documentation should be provided to this Court no later than two weeks after delivery of this decision. Further orders of the Court will issue on the basis of the documentation provided.

[252]    I also declare that the purported share transfers from both Concordia and Ms. Lefevre to the second respondent, Drambois, are null and void.

[253]    In regards to monetary relief for Ms. Lefevre and costs, the Court reserves its decision.

[254]    In regards to remedies relating to the actions of Mr. Zaslonov and Mr. Khlebnikov, the Court also reserves its decision.

[255]    In the interim, I prohibit any disposal of or dealing with shares of BVP, and any disposal of or dealing with assets of BVP that would affect the share value in BVP.

[256]    The case against the Registrar of Companies is dismissed.

Signed, dated and delivered at Ile du Port on 15 October 2019.

 

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Twomey CJ