Re Brightex Corp Ltd
Court of First Instance
Miscellaneous Proceedings No. 1953 of 2015
Harris J in Chambers
21 June 2016

Shares – transfer – execution by Registrar of instrument of transfer of share held on trust – rectification of register of members

Pursuant to O. 85 of the Rules of the High Court (Cap. 4A, Sub. Leg.) (the “RHC”), P, the applicant by originating summons, sought a declaration that he was absolutely entitled to the one issued share in R3 registered in the name of R2, relying on a written declaration of trust which provided that R2 held the share on trust for P. The declaration of trust was executed on behalf of R2 by R1, who owned and controlled R2. When the application first went before the Judge, it appeared that the application might be contested, as R1 initially asserted that he had acquired a beneficial interest in the share. The Privy Council in Nilon Ltd v Royal Westminster Investments SA had held that the British Virgin Islands equivalent of the O. 85 procedure could only be used for a summary determination of an applicant’s right to an order for rectification of the register of the members of a company, so it might be argued that O. 85 was not the appropriate procedure to adopt for the resolution of P’s claims. In the event, R1 did not pursue such allegation.

Held, that as P’s application was no longer contested, the decision in Nilon was not relevant. Notwithstanding that he had no present right to rectification, P was entitled to the declarations sought and an order for the execution by the Registrar of an instrument of transfer for the conveyance of the legal title in the share to P and an ancillary order providing for the rectification of R3’s register of members.

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