Case details

Skandinaviska Enskilda Banken AB (Publ) (Appellant) v Conway and another (as joint official liquidators of Weavering Macro Fixed Income Fund Ltd) (Respondents) (Cayman Islands)

Case ID: JCPC 2017/0022

Jurisdiction: The Court of Appeal of the Cayman Islands

Case summary

Issues
  1. Whether certain payments made following receipt of share redemption notices constitute preferences contrary to s.145(1) of the Cayman Islands Companies Law; and
  2. Whether a defence of change of position is available in a preference claim.
Facts

Weavering was incorporated in April 2003 as an open-ended investment company, established as an exempted company with limited liability under the law of the Cayman Islands. SEB held redeemable "Participating Shares" in Weavering as nominee on behalf of two Swedish mutual funds. On 9 and 28 October 2008, SEB gave notices of redemption of its shares in accordance with Weavering’s offering memoranda. On 19 December 2008, Weavering paid SEB US$1,096,903.58 in respect of the first notice; on 2 January 2009 it paid SEB 25% of the amount due in respect of the second notice, US$1,780,214.29; and on 11 February 2009 the Company paid SEB the remaining 75% due in respect of the second notice, US$5,340,643.47. On 5 March 2009, Weavering’s directors became aware of the true nature of certain interest rate swaps Weavering had entered into and their likely effect on its solvency. The directors resolved to suspend determination of the net asset value and the issue and redemption of shares with immediate effect. On 19 March 2009, Weavering entered liquidation. At first instance, Clifford J declared Weavering’s payments to SEB invalid as preferences over other creditors of the Company under s.145(1) of the Cayman Islands Companies Law and ordered SEB to pay an equivalent amount to the JOLs together with interest and costs. The Cayman Islands Court of Appeal dismissed SEB’s appeal. SEB now appeals to the Judicial Committee of the Privy Council.

Parties

Appellant

Skandinaviska Enskilda Banken AB (Publ) ("SEB")

Respondents
  1. Simon Conway
  2. Mr Jess Shakespeare
    (as Joint Official Liquidators ("JOL") of Weavering Macro Fixed Income Fund Limited ("Weavering"))

Appeal

Justices

Lord Reed, Lord Wilson, Lord Lloyd-Jones, Lord Briggs, Sir Donnell Deeny (Northern Ireland)

Hearing start date

25 Jun 2018

Hearing finish date

26 Jun 2018

Watch hearing
25 Jun 2018 Morning session Afternoon session
26 Jun 2018 Morning session