ROYAL COURT
(Samedi Division)
30 November 1998
Before: Sir Philip Bailhache, Bailiff, and
Jurats Quérée and Tibbo
In the matter of David John Stilwell, en désastre
In the matter of D & S Services, Ltd, en désastre
Between:The ViscountRepresentor
And:(1) Mrs. Karen Mary Stilwell (née Larki);
(2) Phyllis Le Feuvre Vibert;
(3) Emirview Holdings, Ltd;
(4) Onsite Consultancy Services, Ltd; and
(5) Namina Investments, LtdParties Convened
Representation of the Representor seeking an Order that:
(1)any interest that Mrs K M Stilwell might have in the net proceeds of sale of "Larkwell", be vested in the Viscount;
(2)directions as to the distribution of the net proceeds of sale, the net balance of the loan and the miscellaneous receipts, and
(3)an Order as to the Viscounts costs and disbursements in administering the Désastre.
Advocate F J Benest for the Representor
Advocate R G Morris for the first Party Convened
Advocate D E Le Cornu for the second Party Convened
Advocate D F Le Quesne for the third, fourth and fifth Parties Convened
JUDGMENT
THE BAILIFF: This is a Representation by the Viscount in relation to the désastre of David John Stilwell and the related désastre of D & S Services Ltd. Mr Stilwell pleaded guilty to various offences of fraud and was sentenced by the Royal Court on 19 January 1998, to concurrent terms of imprisonment of 5 years.
Mr Benest for the Viscount has invited the Court to make a number of Orders following the conclusion of the administration of the désastre by the Viscount.
The principal asset of the désastre is the proceeds of sale of a property called "Larkwell" which was sold for £214,475. From the net proceeds of the désastre the Court is invited to agree that a loan made by the Curator of Miss Vibert should be repaid in full plus outstanding interest. This loan was secured by judicial hypothec and we agree that it is appropriate that the amount of the loan should be repaid in full. We therefore order that from the net proceeds of sale the sum of £150,000 plus outstanding interest approved thereon at contract rate to date of repayment be paid to the Curator of Miss Vibert.
We are also invited by the Viscount to order that any interest that Mrs Karen Stilwell might have in the net proceeds of sale of "Larkwell" be vested in the Viscount. Mrs Stilwell was the joint owner of the property before the declaration of désastre of the property of her husband and in accordance with the operation of law she became vested as a tenant in common with the Viscount of the property upon the making of the désastre Order.
Mr Morris for Mrs Stilwell has conceded that she made no contribution towards the purchase monies of the property and that she should therefore abandon any interest which she might have. We order accordingly, as requested by Mr Benest, that any interest that Mrs Karen Stilwell might have in the net proceeds of sale of "Larkwell" be vested in the Viscount. Mr Benest has also invited us to order that the miscellaneous receipts of both désastres including the sum of £1,627.12 relating to possible clients’ monies unclaimed and as yet unidentified be applied towards the payment of the Viscounts administrative expenses and costs. We agree that that is an appropriate order and we order accordingly.
There remains the question of the balance of the monies remaining in the hands of the Viscount after deduction of his professional fees and judicial fees which total £36,193.89. Mr Benest for the Viscount has invited the Court to order that these monies be applied to Emirview Holdings Ltd, Onsite Consultancy Services Ltd, and Nanima Investments Ltd pro rata to their tracing claims plus interest accrued thereon from the date of receipt by the Viscount less the Viscount’s costs of this representation, the expenses incurred by the Viscount in investigating the claims of those companies, and his administrative expenses.
The Court has two concerns about this proposed order and is going to adjourn the Viscounts application in order that further argument can be addressed to it. The first concern is the absence of any evidence before the Court that from the proceeds of the loan advanced by the Curator of Miss Vibert (which we are told was applied towards the payment of various clients and creditors of Mr Stilwell and/or D & S Services Ltd.), and/or D & S Securities Ltd, no monies were actually paid to Emirview Holdings Ltd, Onsite Consultancy Services Ltd and Namina Investments Ltd. In short the Court wishes to be assured that there will be no element of a double payment of these creditors.
The second point of concern to the Court, upon which the Court wishes to be addressed as to the relevant law, is whether these companies are entitled to a preference over the ordinary creditors as a result of the tracing exercise carried out by the forensic accountants. It may well be that they are so entitled but the Court has heard no legal submissions leading the Court to that conclusion and the Court, before making this order, wishes to be assured that in preferring the tracing claimants to the ordinary body of creditors the Court is doing justice to all the creditors.
Authorities
In re Royco Investments Co Ltd (1994) JLR 236
In re PKT Consultants (Jersey) Ltd (1 August 1991) Jersey Unreported