Hickox & Ors v Brilla Capital Investment Master Fund SPC Ltd & Ors (Anguilla) [2015] UKPC30 (22 June 2015)

LORD NEUBERGER:

1.                  This appeal is brought by Charles and Linda Hickox (“Hickox”) against a decision of the Eastern Caribbean Court of Appeal (Pereira CJ, and Blenman and Michel JJA) of 25 April 2013, allowing an appeal against a decision of Jaques J of 30 April 2012, which authorised the joint liquidators of Leeward Isles Resorts Ltd (“the Company”) to sell certain property to Hickox rather than to Brilla Capital Investment Master Fund SPC Ltd (“Brilla”).

The basic facts

2.                  The factual background is quite complicated, but for present purposes, it is possible, and therefore appropriate, to summarise what occurred before April 2012 very briefly. The Hickox held three fixed charges over approximately 179 acres of the Resort lands (on which are 14¹/₂ villas) securing three loans made by Hickox to the Company. Following extensive litigation over 12 years, the Company was ordered to pay Hickox around US$140m. In October 2010, Hickox entered into a settlement agreement with the Company, its sole shareholder, Cap Juluca Holdings Limited and its parent company, Cap Juluca Properties Limited, for the payment of the judgment debt. The Company defaulted on payment on the Hickox loans. Shortly thereafter, on 7 November 2011, William Tacon and Stuart Mackellar (“the liquidators”) were appointed as joint liquidators of the Company pursuant to a voluntary liquidation. In order to raise working capital, the liquidators, on behalf of the Company, borrowed some US$3m from Hickox, who were provided with security in the form of 3.5 villas (“the property”) at Maunday’s Bay, which were owned by the Company. Hickox exercised their powers of sale under their charges, as a result of which the bulk of the Company’s assets were due to be sold by public auction, which was scheduled to take place on 2 May 2012.

3.                  The liquidation of the Company (and of an associated company) gave rise to a number of disputes, which were referred to Jaques J (Ag). The disputes largely concerned a large resort, of which the property formed part, the business carried on there, and the chattels located there. Those applications included claims by the liquidators for leave to sell the business, the property and the chattels by private treaty, or alternatively to cease to carry…