An intense week in the final valuation phase of this long running minority shareholder dispute (Soemarli Lie v Ng Min Hong & Success Overseas Finance Limited BVIHC(Com) 2020/147) arising out a major palm oil business based in Sumatra and East Kalimantan and following the Claimant’s comprehensive success at the liability trial in November 2021. Lie v Ng & SOFL (Judgment)
Last Monday Matthew Hardwick KC (instructed by Richard Evans and Dr Alecia Johns of Conyers) saw off the Defendant’s 11th hour attempt to appeal to the Privy Council and stay the valuation trial (Eastern Caribbean Court of Appeal, sitting in St Kitts & Nevis (Ward, Ellis and Michels JAs)).
In the valuation trial which followed, Wallbank J. (1) accepted the Claimant’s valuation evidence as “impressive” and “measured” (a market approach with historic EBITDA earnings and implied multiples rolled forward to the valuation date without a minority discount); and (2) accepted Matthew’s submissions that the Court should (a) draw adverse inferences from the Defendant’s disclosure failures; (b) take the top of the ranges (both EBITDA earnings and implied transaction and trading multiples) proposed by the valuer (resulting in a final price of USD154m); and (c) award compensatory “quasi-interest” of USD24m in view of the July 2017 valuation date. The Defendant must pay USD178 within 28 days and interim cost of USD315,000.
This is rare instance of an unfair prejudice claim proceeding all the way to a valuation trial in the British Virgin Islands Commercial Court. The share buy-out order on these terms now provides substantial justice to the Claimant, following the elimination of the economic value of his shareholding by a series of egregiously unfair and prejudicial acts between 2015 and 2019. The final judgments of the ECCA and the BVI Commercial Court are to be published shortly. Conyers’ own article can be found at Conyers secures US$178 million Judgment for Claimant in long-running BVI shareholder dispute – Conyers.