In the recent decision of the Court of Appeal of the BVI, of Mark Byers et al v Chen Ningning, the appeal was dismissed against the liquidators of a BVI company called Pioneer Freight Futures Company Limited (PFF).
The case concerned a claim by the liquidators of PFF against the former director and sole shareholder of PFF in respect of loan repayments to a creditor within six months of the liquidation, raising interesting and 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 that the CA would only intervene in rare cases, such as (i) when there is no evidence to support the conclusion; (ii) it was based on a misunderstanding of the evidence; or (iii) which it was a conclusion that no reasonable judge could have reached. The CA upheld the lower court’s decision and dismissed the appeal; it could not be said that the challenged findings are unsupported by the evidence or were ones where no reasonable judge could have reached or 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. This case also provides insight to the CA’s attitude towards the lower court’s finding on credibility and the issue of predetermination of the judge.