Matthew Hardwick KC BVI Court of Appeal success

Matthew Hardwick KC (instructed by Conyers) continues to represent the Claimant in Soemarli Lie v Ng Min Hong and Success Overseas Finance Limited, a complex and high value minority shareholder dispute arising out a major palm oil business based in Sumatra and East Kalimantan.

In an important further success for the Claimant, on 28 July 2023 the Eastern Caribbean Court of Appeal (“the ECCA”) handed down judgment upholding the decision of Wallbank J. to grant an unless order and to debar the majority shareholder, Mr Ng, from participation in the final valuation stage of these long running proceedings.

Following a 5-week trial in the BVI Commercial Court in October 2020 and March 2021, the Claimant was successful on all key issues: Wallbank J. ordered Mr Ng to purchase the Claimant’s shares and gave directions for an 8 day valuation hearing. In a further hearing on 14 November 2022 (and in view of Mr Ng’s obstructive failure to disclose any relevant valuation documents) Matthew (1) persuaded the Judge that Mr Ng had practical control of certain categories of corporate documents (disclosure of which was key for the purposes of the valuation hearing); and (2) obtained an unless order in terms that unless Mr Ng disclosed the same he be debarred from defending the valuation proceedings (“the Unless Order”). Mr Ng failed to comply.

In this robust judgment dismissing Mr Ng’s attempt to appeal the Unless Order, the ECCA (1) noted the Judge’s “significant involvement” in this “protracted litigation” and (2) refused to interfere with the Judge’s finding that there was sufficient evidence from which he could infer that there was an arrangement or understanding that Mr Ng had free access to the corporate documents concerned. Accordingly, the Claimant now proceeds with an unopposed valuation hearing listed in October 2023.

The judgment provides a striking modern example of the robust and effective application of the line of authorities in respect of the concept of “practical control” (from Lonrho v Shell [1980] to Berkeley Square Holdings v Lancer [2021]), as a means of enforcing a recalcitrant litigant’s disclosure obligations. The Judgment can be found here: Ng Min Hong v Soemarlie Lie