Nevis Real Estate Fund Inc. v The Sparkasse Baregenz

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Hilton, J
• Judgment Date: 14 December 1992
• Neutral Citation: KN 1992 HC 7
• Docket Number: No. 22 of 1991
• Date: 14 December 1992

High Court

Hylton, J.

No. 22 of 1991

Nevis Real Estate Fund Inc.

and

The Sparkasse Baregenz

Appearances:

Dr. H. Browne and Mrs. C. Jenkins for the plaintiffs

Messrs. C. Wilkin acrd E. Ferdinand for the defendants

Company law - Dispute between plaintiffs and defendants as to who are directors or shareholders of 1st and 2nd plaintiffs — Injunction granted giving leave to plaintiffs to serve notice of writ on defendants and restraining defendants inter alia, from holding themselves out as directors and sole shareholders of 1st plaintiff and as directors of 2nd plaintiff— Injunction granted restraining 3rd to 5th plaintiffs, inter alia, from acting in names of 1st and 2nd plaintiffs — Injunction granted against defendants suspended — Whether 2nd and 3rd defendants elected as directors — Whether 3rd to 5th plaintiffs entitled to maintain action in name of 1st and 2nd plaintiff— Whether injunction should be discharged against 3rd to 5th plaintiffs in their persional capacities — Whether beneficial owners of 1st plaintiff have right to determine whom they wish to manage their investment — Whether beneficial owners have ratified appointment of 2nd and 3rd defendants as Directors of the corporation.

Hilton, J

BACKGROUND:

1 On March 6, 1992 there was filed in the Registrar's Office, Nevis a Suit by Nevis Real Estate Fund, Inc and Real Estate Holding Corporation against the Sparkasse Bregenz, Stephen E. Davis and John R. Young as defendants. This Writ was endorsed setting out the claim of the plaintiffs. Bu paragraph 3 an Injunction was sought restraining the defendants (See paragraph 3 of Indorsement of Claim)

• (i) From further holding themselves out as the “Transfer Agent” or agent, servants or contracted employees of the said first named plaintiff company;

• (ii) From directly or indirectly selling any shares bailed to them for the purchase of same by potential shareholders and/or investors in the First Named Company

• (iii) (iii)To provide as the said Sparkasse Bregenz was required to do all information, memoranda and any pertinent documentation to the said first named defendant company forthwith.

Ex parte Summons for Service Outside of the Jurisdiction was filed on the same date.

2 On March 9, 1992 an Injunction was granted restraining the Defendants in the terms set out hereunder:–

• (1) That the intended plaintiffs have leave to issue a Writ. of Summons against the intended defendants and to serve a Notice of the Said Writ on the intended defendants at the following addresses: The Sparkasse Bregenz at RathausstraBe 29, Bregenz Austria Stephen E. Davis at 84 Laura Lane, Tiverton, Rhode Island U.S.A John R. Young at 7 Hickory Lane, New Fairfield, Connecticut, or elsewhere outside this Courts Jurisdiction as the case may be it is FERTHER ORDERED that the intended defendants do enter an appearance to the said Notice within 20 days after the receipt of Notice of the Writ inclusive of the day of receipt.

  AND UPON the intended plaintiffs by their counsel undertaking to abide by arty Order this Court may make as to damaged in the case the court shall hereafter be of the opinion that the intended defendants shall have suffered damages by reason (in case the court shall hereafter be of the opinion that the intended defendants shall have suffered damages by reason) of this order which the intended plaintiffs ought to pay –

  • IT IS FURTHER ORDERED THAT (a) the intended defendants, whether by themselves, their servants or agents or howsoever otherwise, are HEREBY restrained from holding themselves out as the Directors or sole shareholder of the Nevis Real Estate Fund Incorporated, a corporation duly registered under the Laws of Nevis, and from holding themselves out as the Directors of the wholly-owned subsidiary Real Estate Holding Corporation, until further order of this court;

  • (b) the intended defendants, whether by themselves, their servants or agents or howsoever otherwise, are HEREBY restrained from taking any steps to alter, amend, cancel or in any way attempting to add to or affect the records of the Nevis Real Estate Fund Incorporated or to add to the list of Shareholders and/or Directors of the said Company until further order of this court;

  • (c) The intended Defendants, whether by themselves, their servants or agents or howsoever otherwise, are HEREBY restrained from acting in the name of the Nevis Real Estate Incorporated, or its wholly-owned subsidiary Real Estate holding Corporation or exercising any control over the assets of either, including but not limited to providing any instructions to B.V. Capital Markets, Inc. or Bayerische Vereinsbank AG; until further order of this court;

  • (d) Renate Kauppert, a resident of the Federal Republic of Germany, Hans-Jurgen Stieringer, a resident of the Federal Republic of Germany and a practising German Attorney, Robert, R. Hendry, a citizen of the United States, and Frank Pridgen Jr., a citizen of the United States, elected as the members of the Board of Directors of the Nevis Real Estate Fund Incorporated as of 1 ^st December 1989 Are HEREBY authorized to act as the Board of Directors of the Nevis Real Estate Fund Incorporated until further order of this court.

3 On March, 13, 1992, the defendants applied ex parte for an Interlocutory Injunction and by Order pf the same day an Injunction was granted restraining the plaintiffs in the following terms:–

• 1. That the order contained in paragraph (d) of the order of this court made on the 9 ^th day of March, 1992 be unconditionally discharged

• 2. That Renate Kauppert, Hans-Jurgen Stieringer, Robert R. Hendry amd Frank Pridgen whether by themselves their servants or agents or howsoever otherwise are hereby restrained from acting in the names of the Nevis Real Estate Fund Inc. or its wholly owned subsidiary Real Estate Holding Corporation or exercising any control over the assets of either company including but riot limited to providing any instructions to B.V. Capital Markets Inc. or Bayerische Vereinbank AG until further order of this Court.

4 On April 6 1992 A Summons in Chambers was filled by the defendants seeking the following Orders:–

• 1. The plaintiff's action be dismissed pursuant to Order 19 Rule 1 of the Rules of The Supreme Court 1970.

• 2. The action be dismissed on the ground that the proceedings have been instituted without the authority of either of the plaintiff companies.

• 3. In the alternative, that the interlocutory injunction granted on the 9 ^th day of March, 1992 (as amended) be discharged, or that the said injunction be amended to permit the Defendants to take steps to recover, preserve and protect the assets and interests of the plaintiff companies and to take the immediate actions that are required to operate and manage the said plaintiff companies on a day-to-day basis.

• 4. As a condition of not dismissing the action and/or of not discharging the interlocutory injunction dated 9 ^th March, 1992, Hans-Jurgen Stieringer be required to pay the monies held by him to the order of or in trust for the plaintiff companies, to wit US $1,929,587.00, into an escrow deposit interest bearing account with Bayerische Vereinsbank AG such account to be opened in the joint names of the defendants and the said Hans-Jurgen Stieringer with express provision that the said monies be deposed of pursuant to the judgment of the court in this action or further order

• 5. That all subsequent interlocutory applications and hearings in the action (including final determination of this action) may be heard in either the Nevis Circuit or the St. Christopher Circuit at the convenience of the court.

• 6. Such further or other Order and/or directions be made as the court deems just.

5 On April 10, 1992 the plaintiffs purported to file their Statement of Claim - and

6 On April 13, 1992 filed a Summons in Chambers seeking (i) leave to file the Statement of Claim notwithstanding that, the time limited by the Rules of Court for so doing had expired in relation to the first named plaintiff and (ii) that the temporary Injunction granted on 9 ^th March, 1992 remain in force until further Order of the court.

7 On April 14,1992 the court ordered as follows:–

• 1. The Injunction (as amended) granted to the plaintiffs against the Defendants on the 9 ^th day of March, 1992 is suspended until further Order.

• 2. This matter is adjourned to Wednesday the 15 ^th day of April, 1992 in St. Kitts and on that day the action will stand dismissed and the Injunction discharged unless the Statement of Claim is amended to include as plaintiffs RENATE KAUPPERT, FRANK PRIDGEN JR., HANS-JURGEN STIERINGER and ROBERT R. HENDRY and they give the usual undertaking in their personal capacities on the suspended Injunction.

8 On April 15, 1992 the court ordered as follows:–

• 1. Leave be granted to the plaintiffs to file and serve the Amended Statement of Claim by today' date.

• 2. This matter is adjourned to Chambers on the 1 ^st day of May, 1992

And on this date the plaintiffs were listed as:–

• 1. Nevis Real Estate Fund, Inc.

• 2. Real Estate Holding Corporation.

• 3. Renate Kauppert.

• 4. Hans Jurgen Steiringer

• 5. Robert R. Hendry

On the same date the amended Statement of Claim was filed.

Paragraphs 1 – 7 of the amended Statement of Claim are as follows:–

• 1. The first-named plaintiff is a Corporation incorporated on the 5 ^th day of May, 1989 under the provisions of the Nevis Business Corporation Ordinance 1984, a statute passed by The Nevis Island Assembly. The second-named plaintiff is a Corporation organized under the Laws of the State of Delaware in the United States of America and is a wholly owned subsidiary of the first-named plaintiff

• 2. On the 1 ^st day of December, 1989 the third, fourth and fifth named plaintiffs together with Rolf Wenger were duly appointed to the Board of Directors of the first-named plaintiff corporation. Rolf Wenger subsequently...