Miller v Gianne

JurisdictionCayman Islands
CourtGrand Court (Cayman Islands)
Judge(Smellie, C.J.)
Judgment Date29 March 2007
Date29 March 2007
Grand Court

(Smellie, C.J.)


T. Lowe and A. Horsbrugh-Porter for the plaintiff;

S. Hall-Jones and S.N. Diamond for the first defendant;

R.D. Alberga, Q.C. and S. Wilson for the second defendant.

Cases cited:

(1) Abidin Daver, The, [1984] A.C. 398; [1984] 1 All E.R. 470; [1984] 1 Lloyd”s Rep. 339, followed.

(2) Bank of Butterfield (Cayman) Ltd. v. Crang, 1992–93 CILR 409, applied.

(3) Bass v. Bass, 2001 CILR 317, referred to.

(4) Beatty v. Beatty, [1924] 1 K.B. 807; [1924] All E.R. Rep. 314; (1924), 93 L.J.K.B. 750, referred to.

(5) Brasil Telecom S.A. v. Opportunity Fund, Grand Ct., Cause 102 of 2006, unreported, considered.

(6) Bumper Dev. Corp. v. Metropolitan Police Commr., [1991] 1 W.L.R. 1362; [1991] 4 All E.R. 638, followed.

(7) Callwood v. Callwood, [1960] A.C. 659; [1960] 2 All E.R. 1, considered.

(8) Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 3), [1970] Ch. 506; [1969] 3 All E.R. 897, applied.

(9) Chiwell v. Carlyon(1897), 14 S.C. 61; 7 C.T.R. 83, considered.

(10) De Nicols, In re, [1900] 2 Ch. 410; (1900), 69 L.J. Ch. 680, considered.

(11) De Nicols v. Curlier, [1900] A.C. 21; (1900), 69 L.J. Ch. 109, applied.

(12) Electric Dev. Co. of Ontario v. Att. Gen. (Ontario), [1919] A.C. 687, applied.

(13) Golden Ocean Assur. Ltd. v. Martin (The Goldean Mariner), [1990] 2 Lloyd”s Rep. 215, considered.

(14) Grupo Torras S.A. v. Bank of Butterfield Intl. (Cayman) Ltd., 2001 CILR 9, followed.

(15) Higgins v. WoodhallUNK(1890), 6 T.L.R. 1, applied.

(16) India (Republic) v. India SS. Co., [1993] A.C. 410; [1993] 1 All E.R. 998, considered.

(17) KTH Capital Management Ltd. v. China One Fin. Ltd., 2004–05 CILR 213, considered.

(18) Letang v. Cooper, [1965] 1 Q.B. 232; [1964] 2 All E.R. 929, referred to.

(19) McHenry v. LewisELR(1882), 22 Ch. D. 397, referred to.

(20) Mercedes Benz A.G. v. Leiduck, [1996] A.C. 284; [1995] 3 All E.R. 929; [1995] 3 L.R.C. 227, referred to.

(21) Morgan”s CaseENR(1737), 1 Atk. 408; 26 E.R. 259, considered.

(22) Nouvion v. FreemanELR(1889), 15 App. Cas. 1; 59 L.J. Ch. 337, followed.

(23) Omni Secs. Ltd. v. Deloitte & Touche, 2000 CILR 102, referred to.

(24) Pattni v. Ali, 2005–06 MLR 586; [2007] 2 W.L.R. 102; [2006] UKPC 51, followed.

(25) Pearse”s Settlement, In re, [1909] 1 Ch. 304; (1909), 78 L.J. Ch. 73, considered.

(26) Phillips Petroleum Co. v. Quintin, 1994–95 CILR N–15, followed.

(27) Pro Swing Inc. v. Elta Golf Inc., [2006] S.C.R. 612; 2006 SCC 52, followed.

(28) Prospect Properties Ltd. v. McNeill, 1990–91 CILR 32, considered.

(29) Sadler v. RobinsENR(1808), 1 Camp. 253; 170 E.R. 948, not followed.

(30) St. Pierre v. South American Stores Ltd., [1936] K.B. 382, considered.

(31) Seethadevi (H.R.H. Maharanee) v. Wildenstein, [1972] 2 Q.B. 283; [1972] All E.R. 689, considered.

(32) Société Nationale Indus. Aerospatiale v. Lee Kui Jak, [1987] A.C. 871; [1987] 3 All E.R. 510, considered.

(33) Spiliada Maritime Corp. v. Cansulex Ltd., [1987] A.C. 460; [1986] 3 All E.R. 843; [1987] 1 Lloyd”s Rep. 1, applied.

(34) Stephenson v. Garnett, [1891] 1 Q.B. 677; (1891), 67 L.J.Q.B. 447, applied.

(35) Swiss Bank & Trust Corp. Ltd. v. Iorgulescu, 1994–95 CILR 149, referred to.

(36) Welch v. Tennent, [1891] A.C. 639, not followed.

Legislation construed:

Grand Court Rules 1995, O.2, r.1(1):

‘Where, in beginning or purporting to begin any proceedings … there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings …’

O.6, r.6: The relevant terms of this rule are set out at para. 14.

Civil Procedure-service of process-service out of jurisdiction-service within jurisdiction of ex juris writ not precluded by Grand Court Rules, O.6, r.6, which provides alternative, not exclusive procedure for service-by O.2, r.1, action not nullity because of irregularity

Conflict of Laws-divorce-property-foreign community property regime recognized as applicable to movables and immovables owned in Cayman Islands by parties domiciled in foreign jurisdiction where applicable

Conflict of Laws-recognition of foreign proceedings-judgment in personam-foreign in personam non-monetary judgment (e.g. requiring transfer of Cayman assets, including immovables, to another) recognized and enforced in Islands if final and conclusive and subject to specific performance-recognition and enforcement no longer limited to judgment for debt for determinate sum of money

The plaintiff (the wife) applied inter partes for a Mareva injunction in respect of the Cayman assets of the first defendant (the husband) pending the determination of her entitlement to share in them, and the appointment of a receiver to manage the second defendant company, which was owned by the husband

The husband and wife were married in California, where they remained domiciled until their divorce in 2006, though from time to time resident in the Cayman Islands. They agreed to a ‘stipulated judgment’ by the Los Angeles Family Court, which stated inter alia that the husband had disclosed all his assets to the wife and, as he claimed to be bankrupt, she agreed to forego the financial provision to which she would otherwise have been entitled. Since a community property regime applied to matrimonial assets in California, the judgment further stated that if the husband were found to have property which he had not disclosed, the wife would be entitled to receive, at her discretion, either half the property itself or half its market value. They also agreed that the Los Angeles Family Court would have exclusive jurisdiction to hear disputes arising under the judgment. The wife later discovered information suggesting that the husband owned a Cayman company (the second

defendant) which had acquired a number of valuable property contracts during the course of the marriage. She therefore issued proceedings in the Los Angeles Family Court (subsequently stayed) seeking declaratory orders in respect of any Cayman assets it was proved the husband owned.

In a series of actions in the Cayman Islands, the wife tried to prove the husband”s interest in the company. Her action for fraudulent misrepresentation was dismissed by the Grand Court on the ground that, in the light of the agreement as to jurisdiction in the stipulated judgment, the Los Angeles Family Court was the appropriate forum to decide the claim. When she discovered that the husband was attempting to sell the Cayman property, however, she sought an ex parte injunction from the Grand Court (dismissed subject to an inter partes application), restraining the husband”s dealings with the Cayman assets and leave to serve the writ and statement of claim in the present proceedings on him in California. He was instead fortuitously served with a copy of the writ at the airport in Grand Cayman, while in transit.

At the inter partes hearing, the defendants submitted that (a) the husband had been improperly served with process, as the wife”s writ had been designated for service outside the jurisdiction, and had been served upon him in the Cayman Islands in breach of the Grand Court Rules, O.6, r.6(3), which provided that an ex juris writ could only be served within the Islands by an office copy of the writ endorsed for service within the jurisdiction; (b) the court had no jurisdiction to try the plaintiff”s claim because she did not assert a proprietary claim against the property here, and accordingly the question of whether the Cayman assets were community property under California law must be decided in the California courts before she could exert a claim over them in the Cayman courts; (c) the Cayman assets were mostly immovable property which the plaintiff might not be entitled to claim as community property as it was not clear that immovables would be governed by the law of the domicile of the marriage rather than the lex situs; (d) the action should in any case be dismissed as res judicata, since the Grand Court had already decided that the Los Angeles Family Court was the appropriate forum for the dispute, given the agreement to that effect in the stipulated judgment; (e) the wife should not be allowed to amend her pleadings to seek the recognition and enforcement of the stipulated judgment, since the judgment did not declare any Cayman property to be community property; only the Los Angeles court could determine whether the husband had breached that judgment so as to create an in personam liability, which itself could only be recognized if it were for a debt for a definite sum of money, and if it were final and conclusive; furthermore the amendment should be refused because the wife would still need to re-amend if she obtained the necessary declarations from the Los Angeles court; (f) the plaintiff should not be allowed to maintain concurrent proceedings in the Cayman Islands and California, since the doctrine of lis alibi pendens required her to choose one jurisdiction in which to bring her case; and (g) the present proceedings should be

dismissed as the forum conveniens was California, as that was the domicile of both husband and wife and the location of other suits between them.

The plaintiff submitted in reply that (a) the husband had been properly served with the copy of the writ, as the Grand Court Rules, O.6, r.6 was enabling rather than restrictive in its language, and did not operate so as to negate personal service of an ex juris writ within the jurisdiction, and in any case the husband had not suffered any prejudice by being served in this way; (b) the Grand Court had jurisdiction to decide whether the husband”s Cayman assets would be treated as community property in California, as California law could readily be...

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