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Praising Mrs Rolle-Kapousouzoglou’s arguments, Acting Justice Moree concluded: “I am not persuaded that there exists today in this jurisdiction a parallel common law route” for foreign liquidators to obtain recognition and assistance from the Supreme Court outside the 2011 Act’s process.He explained that the 2011 Act overrode common law, limiting its application to liquidators who were not from designated ‘relevant foreign countries’.As a result, Acting Justice Moree ruled that Caledonian Bank’s two liquidators, Keiran Hutchison and Claire Loebell, could not be recognised under the 2011 Act.And he found that the other avenue for recognising and assisting the Ernst & Young (Cayman) duo, common law, was blocked off by Parliament’s passage of the same Act.As an example, Acting Justice Moree said Caledonian Bank had made loan in December 2012 to Tower Coral Investment Ltd, a Bahamian company, which was secured by a mortgage over Apartment P.23 in The Towers of Cable Beach complex.Tower Coral’s shares were pledged to Caledonian Bank as further security but, by March 2015, the company had sold the mortgaged property and sought to pay off the loan.Acting Justice Moree described the Liquidation Rules Committee as the “new gatekeeper” to the provision of court assistance for foreign liquidators, and found that the Supreme Court was not able to “usurp” its functions.
Acting Justice Moree, in accepting this principle, also acknowledged that it was not restricted to a particular country or territory - as the Bahamas’ 2011 Act attempts to do.
In turn, a ‘relevant foreign country’ has to be designated as such by rules set by the Liquidation Rules Committee.
Referring to Sophia Rolle-Kapousouzoglou, the attorney for the Caledonian Bank liquidators, Acting Justice Moree said: “Counsel for Caledonian Bank accepts that, to-date, no country, territory or jurisdiction has been so designated.
Acting Justice Brian Moree, in a February 9 ruling, found that the Supreme Court was unable to recognise the liquidators for Caledonian Bank due to the fact that the Bahamas has yet to determine which countries can receive such assistance.
Although the Companies Act Winding-Up Amendment Act 2011 was passed into law, the Liquidation Rules Committee has yet to designate which nations are to be listed as ‘relevant foreign countries’ and qualify for assistance from the Bahamian courts.