In a judgment handed down on 30 January 2025 in Geminis Investors Limited v (1) Goods Technology Starting Internal Limited and (2) G-Force Int’l Co Ltd, the Court of Appeal of the Eastern Caribbean (sitting in the Virgin Islands) rejected a consolidated appeal against decisions of the BVI Commercial Court to reject an application to set aside a statutory demand and to grant judgment in default. The proceedings arose in connection with 9 short-term notes. The Appellants argued that they were entitled to rely on provisions in those notes to settle the debt arising by way of asset transfer, and consequently the trial judge had been wrong to find that there was no genuine and substantial dispute in relation to the debt due.
In their judgment, the Court of Appeal found that the Appellant had not raised an authentic or genuine dispute. In reaching this view, it accepted the Respondents’ submission on the proper construction of the asset settlement provisions in the notes and considered what in principle is required to constitute the giving of notice in default. On the facts, the Appellant had not shown that the asset settlement provisions had been invoked, that a default notice had been issued or that the purported settlement of the debt had not left a balance over the statutory maximum.
In a prior decision in the same appeal, the Court of Appeal also rejected an application by the Appellant to introduce fresh evidence, and granted the Respondents’ applications for security for costs of the appeal and for an unpaid costs order at first instance. In relation to the fresh evidence application, the court held that the Ladd v Marshall principles apply in their full rigour to an application to set aside a statutory demand because in the context of insolvency proceedings concerning a company in the BVI, a decision on such an application is a final, not an interim, order. It also confirmed that the assistance of evidence on foreign law is merely to prove the foreign rules of contractual construction.
The BVI Court of Appeal judgment on the appeal can be found here and its judgment on the evidence and security applications here.
Angeline Welsh KC and Sophia Hurst acted for the Respondents, together with Sara-Jane Knock of Withers, instructed by Jan Alessandrini also of Withers, and Martha Eker-Male formerly of Withers.
