Jersey Unreported Judgments

[2008]JRC003

royal court

(Samedi Division)

9^th January 2008

Advocate M. P. Renouf for the Representor.

Advocate J. Harvey-Hills for the First Respondent.

judgment

the commissioner:

1.        Mr Anthony Warner was appointed trustee of the bankrupt estate of the late Rene Walter Rivkin by order of the Australian Federal Magistrate's Court on 7^th November, 2006.  Mr Warner is a professional trustee in bankruptcy, being a chartered accountant and registered trustee in bankruptcy of CRS Warner Sanderson in Sydney, Australia.

2.        The Federal Court of Australia is a superior Court exercising primary jurisdiction in bankruptcy matters.  We have seen letters from the second respondent (Royal Bank of Scotland International Limited) and from the Viscount, who have not appeared in order to save costs and because they have no argument with any decision that the Court may make.

3.        It appears that Rivkin committed suicide on the 1^st May, 2005, although it has not been ascertained where.  It is assumed that the death occurred in Australia where he was (presumably) a citizen.  Advocate Harvey-Hills appeared for the first respondent, Equity Trust (Jersey) Limited and was able to give valuable assistance to the Court.

4.        The main point that the Court has to consider is whether a grant of probate or letters of administration can be dispensed with as we were initially concerned that the amended representation date 3^rd January, 2008 mentioned that Mr Warner was duly appointed in Australia "on the application of Damien Andrew Rivkin, son and executor of the deceased bankrupt" (our underlining).  Advocate Renouf (who has given us a very detailed and comprehensive bundle and who has dealt with all matters very ably at the hearing) told us that he was certain that Mr Damien Rivkin was "executor de son tort" an expression known to Australian Law and, of course, well known to us.  This is an amended representation (the earlier representation was abandoned in order to save costs) and we accepted the representation in its amended form.

5.        An order of justice signed by the Deputy Bailiff was served on the respondent on 28^th August, 2007, and the respondents were restrained by injunction from moving any assets out of Jersey.  We have seen the list of unsecured creditors and there are some £1.5 million of assets available, which are held by a number of companies controlled by Equity Trust, registered in the British Virgin Islands.  Certain discovery orders were also obtained.  The companies' shareholders are in Jersey and Equity Trust administered the companies in and from Jersey.  As is said in a footnote to Dicey and Morris' Law of Property (14^th Edition, 2006):-

"Where however the registered owner of shares is a mere nominee of the beneficial owner and where the nominee has endorsed the share certificate in blank and is holding them to the order of the beneficial owner, then the beneficial owner's interest is situate where the certificate is to be found for the only property he possesses is the right to the shares themselves (Stern v The Queen 91896) 1 QB 211)".

6.        Article 49 of the Bankruptcy (Desastre)(Jersey) Law 1990 provides for assistance to other Courts in insolvency matters and, of course, Australia is a prescribed country under Article 6 of the Bankruptcy (Desastre)(Jersey) Order 2006.

7.        The law of Jersey is well summarised in the words of Goulding J in the case of In re a Debtor (Order in Aid No. 1 of 1979) ex parte Viscount of the Royal Court of Jersey [1981] Ch 384.  Part of the chapter on cross-border Insolvency in the illustrious work by Dessain and Wilkins "Jersey Insolvency and Asset Tracking" summarises part of what was said by Goulding J in this way (the authors are talking of where, as here, the request falls within the scope of Section 122 of the Bankruptcy Act 1914 which is now Section 426 of the Insolvency Act 1986):-

"(a) The English Court receiving the request could lend assistance to the Viscount even if there were an English bankruptcy;

(c) The English Court receiving the request could refuse the request where it was clearly hopelessly bad under the foreign law or there was an overriding reason of English public policy not to grant the assistance."

8.        We have read carefully the most helpful affidavit of Peter John Harkin, an insolvency lawyer, who is the senior partner in his firm's insolvency section - a firm which has some 70 lawyers in its fold.  It is quite clear from this expert's opinion that the worldwide property of Rivkin rests in the trustee.  It is interesting to note, in passing, that in Mr Harkin's opinion the Australian Court would refuse the trustee a grant of probate.  We are fully satisfied that the trustee has all the duties and powers under Australian Law to administer the worldwide property of Rivkin.

9.        Of course we have had regard to Article 19(1) of the Probate (Jersey) Law 1998 as amended, which states that:-

"subject to paragraphs (2) to (5) and save as otherwise provided by any other enactment the production of a grant shall be necessary to establish the right to recover or receive any part of the moveable estate situated in Jersey of any deceased person."

10.      We entirely agree with Advocate Renouf that Article 49 of the Bankruptcy (Desastre)(Jersey) Law 1990 is just such "any other enactment" and for that reason alone no domestic grant of probate would be required in Jersey to enable Mr Warner to deal with the assets of Rivkin.

11.      We are satisfied, in any event, that under Australian Law, the affairs of a deceased insolvent can only be dealt with under its Act of Insolvency.

12.      The private international law problems could possibly lead to conflicting duties and of course the family would have to become involved.  We are satisfied that the insolvency would not be reduced as a result of the assets controlled by Equity Trust.

13.      We are therefore minded to give acceptance to the letter of request for assistance issued by the Federal Court of Australia and accordingly we endorse and register the appointment of the Representor as trustee in bankruptcy of the bankrupt's estate in Jersey.  We direct that the Representor as appointed has full authority to deal with any property of the deceased bankrupt situate within the island of Jersey and any property of the deceased bankrupt forms part of the bankrupt estate of the late Rene Walter Rivkin and rests in the trustee in bankruptcy.  It should be pointed out, and we so direct, that E.Q. Nominees (Jersey) Limited is the holder of stocks and shares in the companies beneficially owned by the bankrupt and that it now holds them as nominee for the trustee in bankruptcy.

14.      The trustee in bankruptcy is declared to be the proper person to obtain a grant of probate or letters of administration in Jersey, should that be necessary, and if the original will or a certified copy of it is not able to be obtained the Registrar is directed to issue letters of administration in favour of the Representor.

15.      We should point out that if Mr Warner wishes to use any documentation or information obtained as a result of this order then such use is prohibited without the prior leave of the Royal Court and, if appropriate, the Federal Court of Australia.

16.      Finally, it was agreed at the hearing that the costs of both Equity Trust (Jersey) Limited and EQ Nominees (Jersey) Limited shall be met out of the proceeds of the bankruptcy on a full indemnity basis.

Authorities

Law of Property 14^th Edition 2006 Dicey and Morris.

Bankruptcy (Desastre)(Jersey) Order 2006.

In re a Debtor (Order in Aid No. 1 of 1979) ex parte Viscount of the Royal Court of Jersey [1981] Ch 384. 

Jersey Insolvency and Asset Tracking, Dessain and Wilkins.

Bankruptcy Act 1914.

Insolvency Act 1986.

Probate (Jersey) Law 1998.

Bankruptcy (Desastre)(Jersey) Law 1990.