Re ICP Strategic Fund
| Jurisdiction | Cayman Islands |
| Judge | (Jones, J.) |
| Judgment Date | 03 February 2012 |
| Court | Grand Court (Cayman Islands) |
| Date | 03 February 2012 |
(Jones, J.)
F. Hughes for the JOLs;
KPMG did not appear and was not represented.
Companies Law (2011 Revision), s.89: The relevant terms of this section are set out at para. 7.
s.103(1): The relevant terms of this sub-section are set out at para. 6.
s.103(3): ‘While a company is being wound up, the official liquidator may at any time before its dissolution apply to the Court for an order-
. . .
(b) that a relevant person transfer or deliver up to the liquidator any property or documents belonging to the company.’
Companies-liquidators-powers and duties-order to compel delivery up of company”s documents under Companies Law (2011 Revision), s.103 only to be made against persons involved in its promotion/management-no order against auditors since independent and unable to provide general administrative services
The ICP Strategic Credit Income Fund Ltd. and the ICP Strategic Credit Income Master Fund Ltd. were in voluntary liquidation under the supervision of the Grand Court.
The funds formed a ‘master-feeder’ structure, promoted by ICP Asset Management LLC, whose founder and chief executive officer was Mr. Priore. The three ICP funds had common management and common auditors, namely KPMG LLP. The JOLs brought proceedings against Mr. Priore and the management companies controlled by him for breach of fiduciary duty or negligence; and, to obtain information about the funds” affairs, they applied for an order under the Companies Law (2011 Revision), s.103(3), to compel KPMG to deliver up ‘any property or documents belonging to the [funds]’ which were in their possession, custody or control. The JOLs submitted that KPMG was a ‘relevant person’ for the purpose of s.103 as (i) it was a ‘professional service provider’ within sub-s.(1)(c); or (ii) it was an ‘advisor’ within sub-s.(1)(d).
Held, dismissing the application:
The court had no jurisdiction to make the order sought, as KPMG was not a ‘relevant person’ for the purpose of s.103. The statutory power was intended to apply only to those who were involved in the company”s promotion/management-s.103(1) defined ‘relevant persons’ by reference to their role in the company”s affairs, not by reference to the fact that they may be expected to possess information which would be of use to an official liquidator. The term ‘professional service provider’ in s.103(1)(c) was narrowly defined by s.89 as meaning ‘a person who contracts to provide general managerial or administrative services . . . on an annual or continuing basis.’ Whereas the funds” former investment manager and administrators clearly fell within this definition...
To continue reading
Request your trial
-
Re Primeo Fund (in official liquidation)
...J. applied. (3)Basis Yield Alpha Fund (Master), In re, 2008 CILR 50, applied.applied. (4)ICP Strategic Credit Income Fund Ltd., In re, 2012 (1) CILR 383, applied.applied. (5) Kennedy v. De Trafford, [1897] A.C. 180; [1895-99] All E.R. Rep. 408; (1897), 76 L.T. 427; 66 L.J. Ch. 413; 45 W.R. ......
-
The Companies Law (2013 Revision) v the Primeo Fund (in Official Liquidation)
...by a liquidator for delivery up of documents belonging to the company under section 103. 17 In ICP Strategic Credit Income Fund, 2012 (1), CILR 383, Jones J clearly found at paragraph 7 that section 103 (1) which defines “relevant person” had no application against outsiders whose only rela......
-
Grand Court Considers The Scope Of Liquidators' Statutory Powers To Collect In A Company's Documents
...on the grounds that the section was not engaged. The Court followed Mr Justice Jones QC's decision in ICP Strategic Credit Income Fund [2012] (1) CILR 383, in which it was held that a "relevant person" did not include outsiders whose only relationship with the company was that they had been......