Lux Locations Ltd v Yida Zhang

• Jurisdiction: Antigua and Barbuda
• Judge: Williams, J.
• Judgment Date: 08 September 2023
• Neutral Citation: AG 2023 HC 68
• Docket Number: CLAIM NO. ANUHCV2007/0695
• Court: High Court (Antigua)

BETWEEN:

Lux Locations Limited

Claimant/Applicant

and

Yida Zhang

Defendant/Respondent

CLAIM NO. ANUHCV2007/0695

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

APPEARANCES:

Mr. Andrew Okola led by Mr. Thomas Roe K.C. for the Applicant.

Dr. David Dorsett for the Respondent.

RULING ON APPLICATION FOR THE SALE OF SHARES

Williams, J.

1 This is an application for the sale of shares in Yida International Investment Limited a company incorporated in Antigua and Barbuda “The Company” pursuant to CPR Rule 48.11. The Judgment Debtor who is the Respondent to this application owns shares in the said company.

2 Before addressing the application itself it is necessary to give some background for context. This matter has been before the Judicial Committee of the Privy Council. 1 Thus, most of the factual information recited below is taken directly from their Lordships' judgment.

Background

3 The relevant facts are as follows:

• 1. A Consent Order was entered into between the parties dated 7 ^th March 2017. The Consent Order provided for judgment to be entered for the Applicant against the Respondent in the sum of US Three Million Dollars plus interest at the rate of 8% per annum and legal costs (including sales tax) of US $345,000. The Respondent was to pay these sums within 21 days of the order.

• 2. The Respondent failed to pay these sums within 21 days as specified and the Claimant/Applicant began enforcement proceedings.

• 3. A Provisional Charging Order was obtained against the Respondent's shares in the company on 4 ^th April 2017.

• 4. On 12 May 2017 the Respondent paid US $705,486.39 in partial satisfaction of the judgment debt.

• 5. A Final Charging Order was made on 23 ^rd May 2017 and took effect 14 days later.

• 6. The Respondent commenced a fresh claim against the Applicant on 23 ^rd November 2018. This claim sought the setting aside of the Consent Order.

• 7. The Respondent obtained default judgment against the Applicant the terms of which were determined by order of Robertson J. made on 20 ^th March 2020. The Applicant's appeal against this decision was dismissed by the Court of Appeal on 11 ^th January 2021.

• 8. The Applicant appealed to the Privy Council. The Privy Council by judgment dated 23 ^rd June 2023 set aside the orders in the courts below and thereby struck out the claim brought by the Respondent.

4 Although this story has many more twists and turns than reproduced above, these are not necessary for the purposes of this application. In short, the effect of the Privy Council's decision is that the Consent Order of 7 ^th March 2017 is now in effect. Thus, the Applicant has an order of this Court which is capable of enforcement.

Analysis

5 CPR Rule 48.11 provides as follows:

“48.11 (1) If a judgment creditor wishes to enforce a charging order of stock or personal property by sale, the judgment creditor may apply to the court for an order for sale of the stock or personal property.

(2) The application must be supported by evidence on affidavit.

(3) Notice must be served on the judgment debtor.

(4) The court may give such directions as seemed appropriate to secure the expeditious sale of the stock or property charged at a price that is fair to both creditor and judgment debtor.”

6 The present application was filed on 12 ^th April 2023 and was supported by an Affidavit of Nadia Dyson filed on the same date. The Application was also served on the Respondent. Thus, there has been procedural compliance with CPR Rule 48.11.

7 On the face of it the Applicant is entitled to an order for the sale of shares. Firstly, as a result of the Privy Council decision the order of 7 ^th March 2017 is enforceable. Secondly, a Final Charging Order made on 23 ^rd May 2017 is in effect. Finally, there is no evidence of any factors such as third-party rights or undue hardship which would render it unjust to grant an order for the sale of shares.

8 In relation to the last factor, I note that the Respondent has not submitted any affidavit evidence in opposition to the Application. Earlier this year I dismissed an application by the Respondent to extend the date for compliance with the Consent Order. I further note that the proposed extension date of 31 ^st July 2023 has now passed with no indication that anything further has been paid towards the judgment debt since May 2017.

9 I agree with learned King's Counsel for the Applicant that it is for the Respondent to show reasons why the order should not be made. In Deslauriers and another v. Guardian Asset Management Limited 2 the Privy Council stated that “ unless the judgment debtor can show that it is, by other means, in a position to redeem by making reasonably prompt payment” 3 a judgment creditor is prima facie entitled to a sale of the charged property. Apart from counsel for the Respondent stating from the bar table that arrangements were at an advanced stage to pay the judgment debt, there is no evidence that the Respondent intends to liquidate the judgment debt in a reasonable time.

10 Counsel for the Respondent also made the following submissions:

• 1. No final Charging Order has been made; and

• 2. Interest on the judgment debt should be limited up 7 ^th March 2023 in accordance with section 26 of the Limitation Act;

• 3. The Charging Orders were no longer in effect

No Final Charging Order

11 The Court has also examined the case file and confirms that both a provisional and a final order are on file. There is therefore no merit in this objection.

Limitation Act

12 Section 26 of the Limitation Act 4 provides as follows:

• 26) (1) an action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

• 27) No arrears of interest in respect of any judgment shall be recovered after the

  expiration of six years from the date on which the interest became due.

13 Counsel for the Respondent also relied upon the of Lowsley v Forbes [1999] 1 AC 329 where the House of Lords examined the equivalent provision in the United Kingdom. In that case the House of Lords ruled that the equivalent of section 26(2) barred execution after six years in respect of all judgments, since the term ‘recovered’ in the statute had a broad meaning and was not confined to recovery by fresh action. Thus, interest in this case started to accrue on 28 ^th March 2017 (twenty-one...