Walkers successful in setting aside BVI Commercial Court judgment in Court of Appeal

Following a four-day hearing, the Court of Appeal of the Eastern Caribbean Supreme Court (the "Court of Appeal") has delivered judgment in the consolidated appeals of Incredible Power Limited, et al v Kathryn Ma Wai Fong  (the "Appeal"), setting aside the judgment (the "Judgment") and all consequential orders of the British Virgin Islands (BVI) Commercial Court, ordering costs in the Appeal to the Appellants and remitting the matter for retrial before a different judge. Walkers act for Incredible Power Limited and Esben Finance Limited, the First and Fifth Appellants.  

The Respondent, Kathryn Ma Wai Fong ("Ms. Ma"), commenced proceedings in the BVI Commercial Court as the executrix of the estate of her late husband, Wong Kie Nai, and derivatively on behalf of the Fourth Appellant, Rayley Company Limited.  She alleged, amongst other things, that the First and Fifth Appellants had received monies belonging to the Fourth Appellant at the instigation of and in breach of duty by their common directors (de facto and/or de jure), Wong Kie Yik and Wong Kie Chi (Wong Kie Nai's brothers (the "Brothers"), the Second and Third Appellants).  Her claim was made notwithstanding the common and equal ownership of the First, Fourth and Fifth Appellants by the Respondent, and each of the Brothers.   

The proceedings were issued within the context of a series of much broader disputes regarding the ownership and control of the "WTK Group" - a successful group of companies established by the brothers' late father, with diversified business interests in Malaysia, South East Asia and Australasia. Following the death of Wong Kie Nai, Ms. Ma and her adult children were unable to take control of the flagship company of the WTK Group, WTK Realty Sdn Bhd ("WTK Realty").  This spawned multiple claims by Ms. Ma and/or her children against the Brothers across multiple jurisdictions, including her unsuccessful attempt to wind up WTK Realty, which was recently determined in the Brothers' favour by the highest appellate court in Malaysia, and her unsuccessful attempt to wind up Successful Trend Investments Corporation, read more here.  

The Court of Appeal, having carefully scrutinised the Judgment, held that a reasonable observer would conclude that the trial judge had failed to consider the evidence and submissions filed on behalf of the Appellants at first instance. As a result, it could not be said that the trial judge properly brought to bear independent judicial reasoning to the issues canvassed before him by both parties.  

A link to the Court of Appeal's judgment can be found here.

Oliver Clifton, Robert Gregory, Colleen Farrington, Christina Lo and Yegâne Güley of Walkers acted for the First and Fifth Appellants and instructed Stephen Atherton KC of Twenty Essex.