Saisie - leave to appeal and costs
Before : |
J. A. Clyde-Smith O.B.E., Commissioner, sitting alone |
Between |
Tan Chi Fang |
First Applicant |
And |
Jason Ray Tan |
Second Applicant |
And |
Sandy Tantular |
Third Applicant |
And |
Michelle Tantular |
Fourth Applicant |
And |
Her Majesty's Attorney General |
First Respondent |
And |
The Viscount |
Second Respondent |
And |
H1 Trust Company Limited |
Third Respondent |
IN THE MATTER OF SAISIES JUDICIAIRES IN RESPECT OF THE REALISABLE PROPERTY OF ROBERT TANTULAR
AND IN THE MATTER OF A SUMMONS OF THE BENEFICIARIES SEEKING A DECLARATION OR VARIATION
Advocate J. M. Sheedy for the Applicants.
A. J. Belhomme Esq., Crown.Advocate.
Advocate M. W. Cook for Third Respondent/
judgment
the COMMISSIONER:
1. When the Court's substantive judgment of 18th June 2019 was handed down (In the matter of the Saisies Judiciaires of Robert Tantular [2019] JRC 114), Advocate Sheedy, for the Applicants, sought leave to appeal and all three counsel sought orders as to costs. The applications were made orally in the limited time available. I will use the same definitions as in the substantive judgment.
2. Advocate Sheedy referred to the grounds for giving leave to appeal as set out in the Court of Appeal judgment Crociani v Crociani [2014] (1) JLR 426, namely (i) that the appeal had a real prospect of success, (ii) the appeal raises a question of general principle to be decided for the first time and (iii) an important question of law arises upon which further argument and the decision of the Court of Appeal would be to the public advantage.
3. Advocate Sheedy submitted that the Court had erred in its interpretation of the Modified Law in finding that an assignment of the Mortgage amounted to dealing in the realisable property subject to the saisies. Even if the Court was right in its interpretation, it was wrong to refuse a variation and in doing so, placed undue weight on the evidence of Mr Cahyo Rahadian Muzhar, affirmed on behalf of the Government of Indonesia. Furthermore, he said the appeal did raise a question of general principle to be decided for the first time and also an important question of law upon which a decision of the Court of Appeal would be to the public advantage.
4. Crown Advocate Belhomme submitted that any appeal would be doomed to failure; an assignment of the Mortgage could not be sanctioned. In his view, the Court of Appeal was bound to reach the same conclusion. If an appeal did raise a point of law, it was a narrow one, specific to this case. No general principle or important question of law arose.
5. The application for leave overlooks the position of the Bank. The Applicants wish the Bank to assign the Mortgage to a friend of the family, but whether or not that is permitted under the terms of the saisies, the Bank has made it clear that it will not proceed without the approval of the Court. The Court has in turn made it clear that it would not approve such an assignment (paragraph 37), and I think it unlikely that the Court of Appeal would seek to interfere in the exercise of its discretion in this respect. The appeal, even if successful, would therefore be somewhat academic.
6. However, we are dealing with the ability of the Court to police saisies, acting at the instance of foreign authorities who are seeking this jurisdiction's assistance in confiscating the proceeds of crime which have found their way into our jurisdiction or which are held through Jersey structures. The question of how far any restriction in dealing with those assets where, as here, innocent third parties have an interest is important. Whilst I have found that it would extend to an assignment of the Mortgage over a Singapore based property, I accept that there is a respectable argument to the contrary and I also think that given the Island's position as an international finance centre, further argument and a decision of the Court of Appeal would be to the public advantage.
7. I therefore give leave to appeal.
8. All of the parties sought their costs out of the trust fund of the Jasmine Investment Trust, payable out of funds remitted to the Viscount, the Trustee on the trustee indemnity basis, and the other parties on the standard basis.
9. The Trustee's role in this application has been limited for good reason, but it does hold and administer the realisable property on behalf of the Viscount, and it is a necessary party to any application concerning that property. I therefore agree that the Trustee should have its costs of and incidental to the application on the trustee indemnity basis, to be paid out of the funds remitted to the Viscount.
10. In so far as the other parties are concerned, the realisable property may in due course be found to represent the Settlor's proceeds of crime, and I was hesitant initially as to whether it was appropriate for that property to be seen as a fund to finance the various applications brought by the interested parties.
11. I accept that the Applicants are persons affected by the saisies and with locus therefore to bring the application under Article 16(7) of the Modified Law. I note that in the application brought by the Bank in 2018, costs were awarded by order dated 6th August, 2018 to the other parties (other than the Bank) and I have decided to treat this application in a manner consistent with the earlier order. I do therefore award the Applicants and the Attorney General their costs of and incidental to the application on the indemnity basis, to be paid out of the funds remitted to the Viscount, and to be taxed, if not agreed.
Authorities
In the matter of the Saisies Judiciaires of Robert Tantular [2019] JRC 114
Crociani v Crociani [2014] (1) JLR 426.