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09 August 2018
In Mark Byers v Chen Ningning the BVI Court of Appeal dismissed an appeal against the liquidators of BVI company Pioneer Freight Futures Company Limited (PFF).
The case concerned a claim by the liquidators of PFF against the company's former director and sole shareholder in respect of loan repayments to a creditor within six months of the liquidation, raising complex issues of unfair preference and breach of fiduciary duty.
In dismissing the claim at first instance, Justice Bannister made various findings of fact, including that the respondent was neither a de jure director, nor de facto or shadow director at the time when the loan repayments were made; thus, no fiduciary duties to PFF were owed. The claim for unfair preference failed.
The liquidators appealed on various grounds, including the trial judge's finding of fact.
The Court of Appeal reaffirmed the established law regarding reversing findings of fact and held that it would intervene only in rare cases, such as:
The Court of Appeal upheld the first-instance decision and dismissed the appeal; it could not be said that the challenged findings were unsupported by the evidence, that no reasonable judge could have reached them or that they were not reasonably justified or explained. The trial judge had taken the whole of the evidence into consideration and the fact that not every point and inconsistency was dealt with is sufficient grounds for appellate interference. The case also provides insight into the Court of Appeal's attitude towards the lower court's finding on credibility and the issue of the predetermination of the judge.
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