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Cross-border insolvency & the discretion of the assisting court: Re Celestial Nutrifoods Limited

Recent Bermudian case Celestial Nutrifoods Limited (in Liquidation) (the Company) demonstrates the broad discretion that the Bermuda Supreme Court possesses, as the “assisting Court”  in cross-border insolvency cases, and the successful cross border co-operation between the Bermuda and Singapore Courts.

The Company was a Bermudian incorporated company, listed in Singapore. An order was granted by the Singapore Supreme Court in 2011 appointing provisional liquidators and for an automatic stay on any commencement of proceedings against the Company – including proceedings in Bermuda.  At that time relief was sought, and granted in Bermuda, for an Order to recognise the Singaporean liquidation at common law, grant all forms relief vested in the Court by section 18 of the Supreme Court Act 1905 and apply local insolvency law without commencing an ancillary liquidation following Cambridge Gas Transportation Corpn-v- Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508. The Company was subsequently wound up.  Almost seven years later, the ex-directors sought, in the Bermuda Supreme Court, to lift the stay of proceedings so that they could commence an action against the Company under Bermudian law. As there were already advanced proceedings underway in Singapore, the application was a seemingly desperate attempt by the applicants to protect their own interests. In their proposed action, the applicants sought a declaration of their requisite indemnity under Bye-Law 164, and also an injunction restraining the existing Singapore proceedings against them. Interestingly, no contention had previously been made by the applicants that the issue was not fit for determination in the current Singapore proceedings.

It was immaterial that the Bermuda Supreme Court had the requisite jurisdiction to lift the Singapore stay, and it was held that the ex directors would be precluded on grounds of abuse for pursuing the subsequent proceedings since they would undermine the current Singapore proceedings. Distilled to its bare essentials, the ex directors’ application was designed to invite the Bermuda Court  to decide an issue which had been joined in proceedings before the Singapore Court in circumstances where no contention had been made in those proceedings that the issue was not fit for determination by the Singapore Court. The Bermuda Supreme Court therefore refused to lift the stay. 

Cross-border insolvency & the discretion of the assisting court: Re Celestial Nutrifoods Limited

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