Caldero Trading Ltd v Leibson Corporation Ltd & Ors

Judgment

Lord Justice Rimer :

Introduction

This appeal is against an order made by David Richards J on 31 July 2013 in proceedings in the Chancery Division, Companies Court. The citation number of his judgment is [2013] EWHC 2191 (Ch) . His order reflected his ruling on ‘the Investment Issue’ that arose in the wake of an ‘unfair prejudice’ petition presented under section 994 of the Companies Act 2006 by a Cypriot company, Caldero Trading Limited (‘Caldero’), the respondent. Caldero is wholly owned by Zoran Becirovic, a citizen of Montenegro, who was one of the two crucial witnesses at the trial of the issue.

Caldero is a minority shareholder, holding just over 25% of the shares, in the company the subject of the petition, Beppler & Jacobson Limited (‘BJUK’), a company incorporated in England and Wales. BJUK has a wholly owned Montenegrin subsidiary, Beppler & Jacobson Montenegro D.O.O. (‘BJM’). Leibson Corporation Limited, a British Virgin Islands company (‘Leibson’), is the majority shareholder in BJUK, holding just under 70% of the shares; and Belinda Capital Limited, a Nevis company (‘Belinda’), holds 5% of BJUK’s shares. Igor Lazurenko, a Russian citizen, owns Belinda; and either he (or perhaps an unidentified principal) owns and controls Leibson (see [5] of the judge’s judgment), although in [63] the judge appears to have found that there is no such principal. Mr Lazurenko was the other crucial witness at the trial.

The petition was presented on 3 May 2012. Its expedited trial was due to start on 13 July 2012. On 16 July 2012, it was, however, settled on agreed terms contained in an order made by Newey J. That order recited that the court was satisfied that it was just and equitable to wind BJUK up and that its affairs had been conducted in a manner unfairly prejudicial to Caldero. The order provided for Leibson to buy Caldero’s shares in BJUK at a price to be fixed by an expert as their fair value in accordance with the terms of schedule 1 to the order. That valuation required a prior determination of the Investment Issue, namely ‘whether any sum invested in [BJUK] and/or [BJM] was invested (or was agreed to be invested) by way of loan or capital …’.

All money invested in BJUK and BJM came, one way or another, from companies on what might be called Leibson’s side (in one instance, by repaying a bank loan to BJM). The commercial significance of the issue is that if, as was originally Leibson’s case, every euro it invested was agreed t