Di Bella v Human Rights Defenders Inc. (MA 95/2020) [2021] SCSC 970 (30 July 2021)

IN THE SUPREME COURT OF SEYCHELLES Reportable [2021] SCSC .!Yl-.{ MA 9512020 DANILO RUGGERO DI BELLA (rep. by Rene Durup) Petitioner and HUMAN RIGHTS DEFENDERS INC. (failed to put up appearance and unrepresented) Respondent Neutral Citation Danilo Ruggero Di Bella v Human Rights Defenders Inc. MA95 of 2020. Before: Summary Heard: Delivered: delivered on 30th]uly 2021 [2021] SCSC ..,.,).!/f ....... Vidot J Winding up of an International Business Company 12 April 2021 30 July 2021 ORDER VIDOT J [I] The Petitioner has filed a petition seeking Orders from this Court, inter alia for the winding up the Respondent Company and for the appointment of a provisional liquidator. The Respondent did not file any reply to the application and despite service on its registered agent in Seychelles failed appear before court, thus the matter was heard ex parte. The Respondent tried to contact the undersigned Judge via email but he was informed that the Judge does not engage with litigants via email. They sent documents addressed to the Judge via courier and the Judge refused to receive the documents and instructed that the documents should not be placed on file and nor form pmt of the record of this case. The courier containing documents was never opened by the undersigned Judge. The documents are in the custody of the Court Registrar. [2] This petition is filed pursuant to section 309( I) of the International Business Companies Act (hereafter "the Act"). Also of relevance to this petition are sections 310, 229, 313, 314 and 315 of the Act. [3] The Petitioner testified that he is a lawyer with the firm Bottega 01 BELLA and that he is admitted to the Madrid Bar. His office is located at 9 Calle Toledo, Alicante ,Spain. The Respondent is an international business company ("IBC") incorporated under the laws of Seychelles. It was incorporated pursuant the Act on II October 2016. The Petitioner produced as exhibit P I a certificate of search of the Respondent which shows that it is of good standing. Its registered agent is Hensley and Cook Limited and its registered office is at Hensley & Cook Limited, Oceanic House, Office F2-04, Providence, Mahe, Seychelles. [4] The Petitioner avers that he entered into an agreement (exhibit P2) with the Defendant for provision of legal services. The agreement is identified as a "Terms of Engagement" Agreement, ("the Agreement"). Further to the scope of the Agreement, the Petitioner was to provide to the Respondent legal advice and representation in an arbitration against Switzerland before the International Centre for Settlement of Investment Dispute (ICSID). It was also a term of the Agreement that the Petitioner provides assistance during a six month consultation period preceding the implementation of the arbitral proceeding and to draft and submit the Request For Arbitration, which request was successfully registered on the 17th August 2020. The Petitioner testified that after it had discharged his obligations under the Agreement the Respondent failed to make payment for his services. [5] Article 5 of the Agreement makes provision as to how payment was to be effected. Under article 5.1 it states that "Counsel's legal fees -and the moment they are due - shall he governed in accordance with the agreement between the Client and Counsel as contained in this document." The fees were to be charged on an hourly basis including a quota litis (contingency fee). The Petitioner provided services as per the Agreement and presented several invoices to the Respondent which some were settled but others remain unsettled. These invoices are dated 03rd July 2020 for the sum of €5,200.00 (exhibit P3), 27th July 2020 for the sum of€I,849.00 (exhibit P4), 10thAugust 2020 for the sum of€I,300.00 (exhibit P5), 14thAugust 2020 for the sum of€600.00 (exhibit P6) and 25th August 2020 for the sum of €59,000.00 (exhibit P7). The total amount owing and outstanding is €67, 949.00. [6] The Petitioner states that he sent several reminders to the Respondent reminding them that the above mentioned sum was still outstanding. By letter dated 1yh September 2020, the Petitioner wrote to the Respondent advising them that they were in breach of the Agreement in particular due to their default in making payment. Despite that letter from the Petitioner, the Respondent has still refused, neglected and failed to pay the amount claimed. [7] Therefore, the Petitioner claims that the Respondent is incapable of repaying its debts. [8] Section 309 of the Act provides as follows; "(1) If any of the circumstances specified in section 310 apply to a company, an application may be made to the Court, by the company, any director, member, creditor or liquidator thereof or by any other interested party, for the compulsory winding up of the company (2) An order made by Court on an application made under sub-section (1) operates for the benefit of all the company's creditors in the same way as if the application has been presented by them. " [9] Section 310 (e) provides that a company may be wound up in circumstances where the company is insolvent within the meaning of section 299 the Act. The latter section reads thus; "For the purpose of this Sub-Part and Sub-Part IV (compulsory winding up by court), a company is insolvent tf (i) The value of its liabilities exceeds, or will exceed, its assets, or (ii) It is, or will be, unable to pay its debts as they fall due. We are here concerned with the second limb of that section. The Respondent appears to have been unable to meet its debts vis-a-vis the Petitioner despite several reminders of such debts being due and owing. [10] The Petitioner has also made application that a provisional liquidator is appointed. He has named Jonathan Xavier Santo Delgado to be appointed to that position. This in pursuance with section 313(b) of the Act. That section reads as follows; "On making an application for the compulsory winding up of a company or any time thereafter, any creditor of the company may apply to Court for an order appointing a provisional liquidator to ascertain the company's assets and liabilities, manage its affairs and do all acts authorised by the Court. " [11] When making such compulsory order for winding up, the court appoints a liquidator as it thinks fit and such person may be a liquidator nominated by the applicant. This is per section 315(1) of the Act.. [12] On the uncontroverted evidence of the Petitioner, this Court is satisfied that the Petitioner offered legal services to the Respondent as per the Agreement. I find that indeed the Respondent failed, refused and neglected to make payment of some invoices addressed to them without any explanation. That is an indication that the Respondent is unable to pay its debts. The Petitioner is therefore being prejudiced. [13] Therefore, this Court accedes to the request as per the Petition and makes the following orders; 1. 11. The Respondent company shall be wound up; In terms with Section 315( I) of the Act, I appoint Jonathan Xavier Santos Delgardo of Santos Asesores with address at Calle Pintor Agrasot, 6, 1°, 03001 Alicante - Alicante Spain as provisional liquidator to ascertain assets and liabilities of the Respondent company; iii. In terms with section 317(1) the Act, once the liquidator's remuneration for the winding-up process is made known and the assets and liabilities of the company are evaluated, the provisional liquidator named at ii. above may be confirmed as liquidator; IV. That the International Centre for Settlement of Investment Dispute ("ICSID") Secretariat of 1818 H street, N. W. MSN J22-200 Washington, D. C 20433 U. S. A and the ICSDsecretariat@worldbank.com mkinnear@worldbank.org and akaplan@world.org , shall be notified of this Court Order for winding up and the ICSID arbitration, (in which the Respondent is the claimant) v. The ICSTD arbitrators is hereby retrained and stayed to secure against the risk of depletion of any debtor's capital and to preserve any assets of the Respondent. [14] I make no order as to cost [15] I wish to remind the liquidator that in terms with section 318 of the Act, he has to give notice to the Respondent of his appointment as liquidator within 40 days of this Order and of the time frame within which notice has to be given for first meeting with the creditors under section 319 of the Act. Signed, dated and delivered at Ile du Port on 30th July 2021. /~\ M Vidot J 5