04 August 2021

Carey Olsen acts for successful petitioner in failed strike out attempt by Cayman mutual fund

Carey Olsen has acted for the successful petitioner in a case before the Grand Court of the Cayman Islands in which a Cayman mutual fund, Rasia, failed in its attempt to strike out a British Virgin Islands (BVI) creditor's winding-up petition against it.

Justice Raj Parker refused to strike out the winding-up petition brought by BVI investment holding company Red Wolf Resources against Rasia after rejecting the Cayman mutual fund's argument that Red Wolf Resources had ceased to be its shareholder. Instead, Justice Parker found that Rasia's director, Joseph Borkowski, had in fact attempted to invent the existence of a transaction agreement between the two parties in order to undermine Red Wolf Resources' position – evidence of which Borkowski was unable to produce before the Court.

The cross-jurisdictional Carey Olsen team advising Red Wolf Resources comprised partners James Noble (Singapore) and Peter Sherwood (Cayman Islands), senior associate Amelia Tan (Singapore) and associate Nigel Smith (Cayman Islands).

James said: "Our client is very pleased with the decision of the Court. This was a factually complicated piece of cross-border litigation managed by a team of lawyers from our Singapore and Cayman Islands offices, and one that further demonstrates the depth and quality of Carey Olsen's global litigation team."

Peter commented: "Rasia's investment manager had asserted a right to cancel our client's majority shareholding in the fund and, when evidence was produced which contradicted its case, it accused our client of forgery. The preliminary trial of this issue involved cross-examination by video of expert and factual witnesses in six different time zones around the globe. In a resounding victory for our client, the Court accepted our client's evidence and concluded that the contract relied on by the investment manager was a fabrication."

Red Wolf Resources, which claims to hold 78% of Rasia's share capital had initially filed the winding-up petition on just and equitable grounds in May 2020.

To read more on this case, please view our case summary briefing.

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