Ma (Appellant) v Wong and others (Respondents) (British Virgin Islands)
Case ID: JCPC 2020/0008
Jurisdiction: Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands)
Did the Court of Appeal err in rejecting the appeal against the trial judge’s finding that the affairs of STIC were not being conducted in a manner that was unfairly prejudicial, unfairly discriminatory, and/or oppressive to the Appellant in her capacity as a member of STIC, such that she should be entitled to relief under BVI law?
This is a shareholders’ dispute concerning STIC, a BVI company, and WTK Realty, a Malaysian company in which the parties have an interest. The Appellant is the personal representative, executrix and trustee of the estate of her late husband ("H"). H and his two brothers – the First and Second Respondents – each had a one third beneficial interest in STIC. STIC held 55 million non-voting convertible preference shares ("CPS") in WTK Realty. When H died, he and his son held 54% of WTK Realty’s ordinary voting shares and his two brothers held the remaining 46% (although they subsequently disputed that H and his son held 54% of the shares).
Shortly after H died in March 2013, STIC (at the instigation of the First and Second Respondents) elected to convert the CPS into ordinary shares in WTK Realty (the "Conversion"), which thereupon comprised 14.4% of WTK Realty’s ordinary share capital. As the First and Second Respondents had voting control over STIC, they acquired voting control of WTK Realty. The reason they gave for the Conversion (which the judge and the Court of Appeal accepted) was that it was required for financing purposes. The Appellant claims that the Conversion was (among other things) instigated for the primary purpose of diluting the rights of H’s estate in STIC, which was an improper purpose contrary to BVI company law. She sought, among other things, a winding-up order against STIC, (ii) an order setting aside the Conversion, and/or (iii) further or other relief, alleging that the affairs of STIC were conducted in a manner that was unfairly prejudicial, unfairly discriminatory, and/or oppressive to her in her capacity as a member.
The judge found that there had been no unfair prejudice and dismissed the claim, but made an order requiring the First and Second Respondents to acquire the Appellant’s shares in STIC. The Court of Appeal dismissed the Appellant’s appeal. The Appellant now appeals to Her Majesty in Council, and on 3 December 2019 was granted final leave to appeal.
Kathryn Ma Wai Fong
Wong Kie Yik, Wong Kie Chie
Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens, Lady Rose
Hearing start date
7 December 2021
Hearing finish date
8 December 2021