Marc Kish
Partner | Legal
Cayman Islands
Partner
Cayman Islands
Big things are happening at Ogier. Change is embedded in everything we do. It is redefining our talent, our ways of working, our platforms of delivery, our culture.
Services
We have the expertise to handle the most demanding transactions. Our commercial understanding and experience of working with leading financial institutions, professional advisers and regulatory bodies means we add real value to clients’ businesses.
Sectors
Our sector approach relies on smart collaboration between teams who have a deep understanding of related businesses and industry dynamics. The specific combination of our highly informed experts helps our clients to see around corners.
We have the expertise to handle the most demanding transactions. Our commercial understanding and experience of working with leading financial institutions, professional advisers and regulatory bodies means we add real value to clients’ businesses.
Legal
Corporate and Fiduciary
Consulting
Banking and Finance
Corporate
Dispute Resolution
Employment law
Intellectual Property
Investment Funds
Listing services
Local Legal Services
Private Wealth
Property law
Regulatory
Restructuring and Insolvency
Tax
Banking and Finance overview
Asset Finance
CAYLUX Fund Finance
Debt Capital Markets
Derivatives
Fund Finance
Islamic Finance
Leveraged Finance
Listing services
Real Estate Finance
Regulatory
Restructuring and Insolvency
Structured Finance
Sustainable Finance
Corporate overview
Economic Substance
EIIS Services in Ireland
Equity Capital Markets
Insurance and Reinsurance
Listing services
Mergers and Acquisitions
Private Equity
Real Estate Structuring, Acquisitions and Disposals
Regulatory
Technology and Web3
Dispute Resolution overview
Banking Disputes
Corporate and Financial Services Disputes
Crypto Disputes
Enforcement of Judgments and Awards
Fraud and Asset Tracing
Funds Disputes
Insurance Disputes
International Arbitration
Regulatory
Restructuring and Insolvency
Section 238 Shareholder Appraisal Rights
Shareholder and Valuation Disputes
Trusts Disputes and Applications
Investment Funds overview
Hedge Funds
Managers and Sponsors
Private Equity
Real Estate, Infrastructure and Energy Funds
Regulatory
Sustainable Investing and Impact Funds
Technology and Web3
Local Legal Services overview
Cayman Local Legal Services
Channel Islands Local Legal Services
Ireland Local Legal Services
Employment law
Estate Planning, Wills and Probate
Expat services
Family Office
Intellectual Property
Make your Guernsey will online
Make your Jersey lasting power of attorney online
Make your Jersey will online
Notary public services
Relocating your business
Relocating your family
Property law
Accounting and Financial Reporting Services - Ogier Global
Cayman Islands AML/CFT training - Ogier Global
Corporate Services - Ogier Global
Debt Capital Markets - Ogier Global
Fund Services - Ogier Global
Governance Services - Ogier Global
Investor Services - Ogier Global
Ogier Connect - Ogier Global
Private Wealth Services - Ogier Global
Real Estate Services - Ogier Global
Regulatory and Compliance Services - Ogier Global
Our sector approach relies on smart collaboration between teams who have a deep understanding of related businesses and industry dynamics. The specific combination of our highly informed experts helps our clients to see around corners.
Ogier provides practical advice on BVI, Cayman Islands, Guernsey, Irish, Jersey and Luxembourg law through our global network of offices across the Asian, Caribbean and European timezones. Ogier is the only firm to advise on this unique combination of laws.
Keep up to date with industry insights, analysis and reviews. Find out about the work of our expert teams and subscribe to receive our newsletters straight to your inbox.
Fresh thinking, sharper opinion.
We get straight to the point, managing complexity to get to the essentials. Our global network of offices covers every time zone.
No Content Set
Exception:
Website.Models.ViewModels.Components.General.Banners.BannerComponentVm
Insight
16 October 2020
Cayman Islands, Hong Kong, London
ON THIS PAGE
Introduction
It is trite law that where a petition debt is disputed in good faith and on substantial grounds, the ordinary practice of the Court is to dismiss or strike out the winding up petition. However, this principle is more easily applied in theory than in practice. As a result, the Grand Court of the Cayman Islands has observed recently that "It is remarkable how much case law has been generated in relation to a legal test which has essentially been settled for many years" (Re Sky Solar Holdings Ltd).
That body of case law has been swelled in 2020 by a number of decisions of the Grand Court which provide further guidance as to whether a petition debt is to be considered genuinely disputed on substantial grounds, requiring that the creditor's winding up petition be struck out for abuse of process.
General Principles
The general rule of practice and its justification were set out in Parmalat Capital Finance Limited v Food Holdings Limited and Dairy Holdings Limited, where Lord Hoffman observed that:
"If a petitioner's debt is bona fide disputed on substantial grounds, the normal practice is for the court to dismiss the petition and leave the creditor first to establish his claim in an action. The main reason for this practice is the danger of abuse of the winding up procedure. A party to a dispute should not be allowed to use the threat of a winding up petition as a means of forcing the company to pay a bona fide disputed debt. This is a rule of practice rather than law and there is no doubt that the court retains a discretion to make a winding up order even though there is a dispute."
Nonetheless, as Vos JA cautioned in the subsequent Cayman Islands Court of Appeal decision in Re GFN Corporation, the Court should be wary of attempts by an unwilling debtor to raise "smokescreens or contrived arguments presented late in the day" or what Jones J described as "disingenuous delaying tactics".
The legal principles governing petitions based on disputed debts were re-stated by Parker J in his 28 July 2020 judgment in Re Altair Asia Investments Limited, and by Richards J in Re Adenium Energy Capital, Ltd., both of which were subsequently considered and followed by Kawaley J in Re Sky Solar Holdings Ltd in his October judgment:
Additional facts that the Court may take into account in determining whether or not a creditor's petition ought to be struck out include, but are not limited to:
It is clear from the number of cases that have come before the Grand Court in recent months that the question of whether a petition debt is genuinely disputed on substantial grounds is one of fact, to be determined on a case by case basis.
Ogier acted for the Petitioners in Sky Solar Holdings Ltd and Altair Asia Investments Limited and for the defendant company in G3 Exploration Limited (in Provisional Liquidation).
Marc Kish
Partner | Legal
Cayman Islands
Partner
Cayman Islands
Contact Marc
Back
Gemma Bellfield (nee Lardner)
Partner | Legal
Cayman Islands
Partner
Cayman Islands
Contact Gemma
Back
Oliver Payne 彭奥礼
Partner 合伙人 | Legal
Hong Kong
Partner 合伙人
Hong Kong
Contact Oliver
Back
Jeremy Snead
Partner | Legal
London, Cayman Islands, British Virgin Islands
Partner
London, Cayman Islands, British Virgin Islands
Contact Jeremy
Back
Ogier is a professional services firm with the knowledge and expertise to handle the most demanding and complex transactions and provide expert, efficient and cost-effective services to all our clients. We regularly win awards for the quality of our client service, our work and our people.
This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.
Regulatory information can be found under Legal Notice
Sign up to receive updates and newsletters from us.
Sign up
No Content Set
Exception:
Website.Models.ViewModels.Blocks.SiteBlocks.CookiePolicySiteBlockVm