“Maksat Arip purchased the shares held by David Sturt and Baglan Zhunus and became the sole shareholder of the Group.”
“Rule 132: All rights over, or in relation to, an immovable (land) are (subject to the Exception hereinafter mentioned) governed by the law of the country where the immovable is situate (lex situs)”
“192. In our judgment both the decision of Chadwick J in Arab Monetary Fund v. Hashim and the judge's application of it to the present case were correct. In Hashim the claimant sought recovery from the defendants on the grounds that they had acted in breach of fiduciary duties under the law of Abu Dhabi. Chadwick J said: "In the context of a claim to invoke its equitable jurisdiction it is for the English court to decide whether the necessary fiduciary relationship exists. Where the duties to which a relationship gives rise are determined by foreign law, the question for the foreign law is what is the nature of those duties. It is for the English court to decide whether duties of that nature are to be regarded as fiduciary." Later, having referred to a passage in the judgment of the Privy Council delivered by Lord Templeman in A.G. for Hong Kong v. Reid[1994] 1 AC 324 , 331, and to what is now rule 200 in Dicey and Morris's Conflict of Laws , Chadwick J continued: "I find nothing in the rule which is inconsistent with the view that, in cases involving a foreign element in which an English court is asked to treat a defendant as a constructive trustee of assets which he has acquired through misuse of his powers, the relevant questions are: (i) what is the proper law which governs the relationship between the defendant and the person for whose benefit those powers have been conferred, (ii) what, under that law, are the duties to which the defendant is subject in relation to those powers, (iii) is the nature of those duties such that they would be regarded by an English court as fiduciary duties and (iv), if so, is it unconscionable for the defendant to retain those assets." 193 Our only possible criticism of Chadwick J's judgment is that he too referred to the defendants in that case being treated by English law as constructive trustees and not as actual trustees. There may have been special reasons for that. But whether there were or not, the inaccuracy of the description can have had no effect on the principles by which the defendants were held liable. In the present case the answers to Chadwick J’s four questions are the following: (i) the proper law which governed the relationship between the defendants and the claimants was the law of Kuwait; (ii) the duties imposed on the defendants by arts 264 and 267 of the 1980 Civil Code were to make restitution in respect of the sums misapplied by them respectively; (iii) the nature of those duties was such that they would be regarded by an English court as fiduciary duties; and (iv) it would be unconscionable for the defendants to retain the funds. We accordingly hold that the claimants’ alternative case is made out.”
“Rule 257 (1) A non-contractual obligation arising out of unjust enrichment, including payment of amounts wrongly received, which concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict which is closely connected with that unjust enrichment, is governed by the law which governs that relationship. (2) Where the law applicable cannot be determined on the basis of clause (1) and the parties have their habitual residence in the same country when the event giving rise to unjust enrichment occurs, the law of that country applies. (3) Where the law applicable cannot be determined on the basis of clauses (1) or (2), the law of the country in which the unjust enrichment took place applies. (4) Where it is clear from all the circumstances of the case that the noncontractual obligation arising out of unjust enrichment is manifestly more closely connected with a country other than that indicated in clauses (1), (2) and (3), the law of that other country applies. (5) Notwithstanding clauses (1)-(4) above, the parties may agree to submit a non-contractual obligation arising out of unjust enrichment to the law of their choice” (citing, as to (5), with Regulation (EC) 864/2007, Art.14, i.e. the Rome II Regulation on the law applicable to non-contractual obligations).”
“36-096 It may be necessary for a person to demonstrate that the assets received by the defendant are the claimant’s property. If the question is whether the claimant was the original owner of that property, or whether his equitable interest is defeated by, for example, a bona fide purchaser for value without notice, the question is one of property law. 36-097 Greater difficulty arises where the question is whether the claimant’s property can still be identified in the hands of the defendant. If the claimant is able to rely on the choice of law rules which deal with transfers of property in order to show that the defendant has his property, he will be able to rely on the same choice of law rule to “follow” that property if it has not changed its form from one person to another. Where property has changed its form, the question may arise whether the claimant’s original property can be “traced” through mixture or substitution. In English domestic law, it has been said of tracing that: “In truth, tracing is a process of identifying assets; it belongs to the realm of evidence. It tells us nothing about the legal or equitable rights to the assets traced.”
“He [the trial judge] said that the plaintiff was unable, by direct evidence, to identify the moneys in the Keristal no 2 account with the money which Mr D'Albis had sent to Panama only a few weeks before. However, he thought that there was sufficient, though only just, to enable him to draw the necessary inference”
“Nor has the plaintiff any difficulty in satisfying the precondition for equity's intervention. Mr Murad was the plaintiff's fiduciary, and he was bribed to purchase the shares. He committed a gross breach of his fiduciary obligations to the plaintiff, and that is sufficient to enable the plaintiff to invoke the assistance of equity. Other victims, however, were less fortunate. They employed no fiduciary. They were simply swindled. No breach of any fiduciary obligation was involved. It would, of course, be an intolerable reproach to our system of jurisprudence if the plaintiff were the only victim who could trace and recover his money. Neither party before me suggested that this is the case; and I agree with them. But if the other victims of the fraud can trace their money in equity it must be because, having been induced to purchase the shares by false and fraudulent misrepresentations, they are entitled to rescind the transaction and revest the equitable title to the purchase money in themselves, at least to the extent necessary to support an equitable tracing claim: see Daly v Sydney Stock Exchange(1986) 160 CLR 371 per Brennan J at pp. 387–90. There is thus no distinction between their case and the plaintiff's. They can rescind the purchases for fraud, and he for the bribery of his agent; and each can then invoke the assistance of equity to follow property of which he is the equitable owner.” ( El Ajou v Dollar Land Holdings Plc[1993] 3 All ER 717 , 734b-e, per Millett J) See also Westdeutsche Landesbank Girozentrale v Islington LBC[1996] UKHL 12 : “I agree that the stolen moneys are traceable in equity. But the proprietary interest which equity is enforcing in such circumstances arises under a constructive, not a resulting, trust. Although it is difficult to find clear authority for the proposition, when property is obtained by fraud equity imposes a constructive trust on the fraudulent recipient: the property is recoverable and traceable in equity. Thus, an infant who has obtained property by fraud is bound in equity to restore it: Stocks v. Wilson[1913] 2 KB 235 , 244; R. Leslie Ltd. v. Sheill[1914] 3 KB 607 . Moneys stolen from a bank account can be traced in equity: Bankers Trust Co. v. Shapiro [1980] 1 W.L.R. 1274,1282C-E: see also McCormick v. Grogan (1869) L.R. 4 H.L. 82, 97.”
“The duties owed by company officers under Kazakh law are set out in Article 62 of the JSC Law. Entitled “Principles of the Functioning of the Company Officers”, this provides (in translation) as follows: “The company officers shall: 1) perform the duties entrusted to them in good faith and use the methods which respond to the interests of the company and shareholders to the maximum possible extent; 2) not use the company’s property or allow it to be used in contradiction with the company’s charter and the decisions of the general shareholders’ meeting and board of directors, or for personal gain, and commit no abuses during the execution of transactions with their affiliate; 3) ensure the integrity of the accounting and financial reporting systems, as well as independent audit; 4) supervise the disclosure and presentation of information on the company’s activities in accordance with the requirements of the legislation of the Republic of Kazakhstan; 5) keep confidential the information on the company’s activities, including for three years after the termination of their employment with the company, and was the company’s internal documents provide otherwise.”
“24. However, as BTA in response to this noted the application of the principle in Hollington has in recent years become substantially diluted. In particular: (l) Whilst a court cannot rely upon a bare finding of a prior court for example that a party has been negligent, it can rely upon the substance of the evidence which is referred to in the judgment of the prior court, including for example the contents of a document, the evidence given by a witness and the like: Rogers v Hoyle[2015] QB 265 , [40], [55] (Christopher Clarke LJ). (2) Whilst the bare finding of a prior court is opinion evidence which a subsequent court cannot rely upon because the later court must make its own findings of fact, a reference in a judgment to the substance of evidence is itself evidence which the judge in a later case can take into account "in like manner as he would any other factual evidence, giving to it such weight as he thinks fit" : Rogers (supra). (3) Moreover, if the judge in a later case concludes that the matters of primary fact recorded in an earlier judgment justify the conclusions reached in that judgment, he is entitled to reach the same conclusion: Otkritie International v Gersamia[2015] EWHC 821 (Comm) , [23] (Eder J).”
“This Deed is entered into by Mr Zhunus expressly without admission of liability in respect of the Claims, in particular (and for the avoidance of doubt), Mr Zhunus continues to deny any claim for fraud and/or dishonesty and/or knowing or deliberate breach of duty or trust.”
“4. RESERVATION OF RIGHTS For the avoidance of doubt, nothing in this Deed, and/or any agreements or arrangements arising out of or connected with it, shall affect in any way whatsoever any past, existing, or future claim, counter-claim or right of action or proceedings, whether at law or in equity, of whatsoever nature and howsoever arising, in any jurisdiction whatsoever, whether secured, proprietary, by way of tracing, priority or otherwise, whether by way of contribution or subrogation or otherwise, by the KK Claimants or Theta, and/or their Associated Entities, and/or their directors, officers, employees, agents or assignees (whether past, present or future) (the Claimant Parties), against: (i) Mr Arip; (ii) Ms Dikhanbayeva; (iii) any of Mr Arip’s or Ms Dikhanbayeva’s: (A) Associated Entities; (B) Family members; or (C) entities in which they are shareholders, and/or directors, officers, employees, agents or assignees of any of them; (iv) Mrs Sholpan Arip; (v) any trustee or person holding or controlling (whether in the past, present or future) any assets for any of the persons at 4 (i), (ii), (iii) or (iv) above; (vi) any person having the benefit of the monies, choses in action, investments or assets of any kind wherever situate now representing the sums of which the KK Claimants asserted they have been defrauded in the KK Claim, save for Mr Zhunus or any of the Zhunus Associated Entities, whether such claims are known or unknown to the Claimant Parties, whether or not presently known to the law and whether arising before, on or after the date of this Deed (the Other Defendant Claims). All the Claimant Parties’ rights are fully reserved in respect of all and any Other Defendant Claims.”
“5. Proceedings were commenced in this country on22nd July 2014 with details of the claim set out as follows in the Claim Form: 1. Between 2006 and 2007 the Claimant (“Alliance Bank”) lent the equivalent of approximately US$222,000,000 to Simons Holding BV, Argentan S.A., Barnard Commercial S.A. (“the Original Borrowers”) in Kazakhstan to permit them to invest in, among other things, various oil companies (“the Original Loans”). The Original Loans were secured by, amongst other security, pledges in the shares in two of the oil companies, namely KNG-Dobycha LLC and DinyelNeft LLC (“the Original Pledges”). 2. In about October 2008 the Defendants persuade Alliance Bank that the Original Loans should be replaced by new loans [the Replacement Loans] to Bolzhal Limited LLP, Commerce Business Centre Limited LLP, Caspian Minerals LLP and Holding Invest LLP (“the replacement Borrowers”) and that the amount lend should be increased to the equivalent of approximately US$295,000,000 representing among other things, that the Replacement Borrowers were more reliable counterparties. The Replacement Borrowers were owned or controlled by the Defendants and/or were affiliated with them. 3. Under the terms of the Replacement Loans the Replacement Borrowers were to provide pledges of the shares in and assets of KNG-Dobycha LLC and DinyelNeft LLC, which were by then indirectly owned by the Replacement Borrowers. Alliance Bank released the Original Borrowers from their obligations under the Original Pledges. 4. The Replacement Borrowers drew down all of the loan monies. However, they did not provide the security agreed. Instead, the Defendants persuade Alliance Bank to accept as security for the Replacement Loans pledges of shares in OmskGeoTEK LLP, SibGeoTEK LLP and SibirGeoTEK LLP (“the GeoTEK companies”) representing that these shares were more valuable than the shares in KNG-Dobycha LLC and DinyelNeft LLC. 5. At the same time the Defendants procured that KNG-Dobycha LLC and DinyelNeft LLC should be transferred to subsidiaries of a company which became known as Exillon Energy plc (“Exillon”). The Defendants were shareholders in Exillon. … In December 2009 new shares in Exillon were the subject of an IPO on the London Stock Exchange which valued the company at about£186 million . That value reflected the value of its interest in KNG-Dobycha LLC DinyelNeft LLC. 6. None of the money lent under the Replacement Loans has been repaid to Alliance Bank. The Replacement Borrowers are insolvent. The shares in the GeoTEK companies are worthless. 7. The Defendants conspired to deprive Alliance Bank of the valuable security which it held over the shares in KNGDobycha LLC and DinyelNeft LLC and to obtain the value of those companies for themselves.” … 18.…Alliance contends that Maksat Arip’s representation was untrue because, within a few months, the companies were capable of being used as a basis for an IPO on the London Stock Exchange. Moreover, earlier in 2008 they had been valued on a discounted cash flow basis at between$600 million and$1 billion . 19. Exillon was admitted onto the London Stock Exchange on17th December 2009 following an IPO Prospectus published on14th December 2009 . The only two significant assets it owned were KNG-D and DinyelNeft. Over£100 million was raised on the flotation of Exillon and some four years later, in December 2013, Maksat Arip sold a shareholding of just under 30% in Exillon for$300 million …”
“ To answer your Lordship’s question: we are not alleging, it is not our positive case that this is Mr Arip’s money ”
“Article 953. Obligation to return unjustified enrichment 1. A person (acquirer) who has acquired or saved property (unjustly enriched) at the expense of another person (victim) without the grounds established by legislation or transaction shall be obliged to return unjustly acquired or saved property to the latter, with the exception of the instances provided by Article 960 of the present Code. 2. A duty established by paragraph 1 of the present Article shall also arise if the ground on which property was acquired or saved has subsequently fallen. 3. The rules of the present Chapter shall apply irrespective of whether the unjustified enrichment resulted from the conduct of the acquirer of property, the victim himself or third persons or from the consequence of an event.”
“Reparation to the victim of lost income 1. The person who has unjustifiably obtained or saved property shall be obliged to return or compensate to the victim all the income which he has extracted or should have derived from this property from the moment he learned or should have learned about the unjust nature of enrichment. 2. The penalty shall be charged for the amount of unjustified monetary enrichment for the use of foreign money from the time when the acquirer learned or should have learned about the unjust nature of receiving or saving money.”
“1) Property transferred to the performance of the obligation before the expiration of the term of performance, if the obligation is not provided for; 2) Property transferred in fulfilment of the obligation for the period of legal age; 3) Monetary sums and other property, provided to the citizen, in the absence of dishonesty with his side, as a means of existence (salary, author's remuneration, compensation for the loss of life, compensation for life). 4) Monetary amounts and other property provided for in the performance of the non-existent obligation, if the purchaser proves that the person requiring the return of the property, knew about the absence of the obligatory obligation or the obligation.”
“Where any question as to the law of any country or territory outside the United Kingdom, or of any part of the United Kingdom other than England and Wales, with respect to any matter has been determined (whether before or after the passing of this Act) in any such proceedings as are mentioned in subsection (4) below, then in any civil proceedings (not being proceedings before a court which can take judicial notice of the law of that country, territory or part with respect to that matter) — (a) any finding made or decision given on that question in the first-mentioned proceedings shall, if reported or recorded in citable form, be admissible in evidence for the purpose of proving the law of that country, territory or part with respect to that matter; and (b) if that finding or decision, as so reported or recorded, is adduced for that purpose, the law of that country, territory or part with respect to that matter shall be taken to be in accordance with that finding or decision unless the contrary is proved: Provided that paragraph (b) above shall not apply in the case of a finding or decision which conflicts with another finding or decision on the same question adduced by virtue of this subsection in the same proceedings.”
“…a condictio claim requires a nexus between the claimant and the defendant’s enrichment, which means that in many if not most cases tracing is not only possible, but necessary to establish the elements of a claim…it is not necessary to establish that the asset in the defendant’s hands is the claimant’s actual property, but it may be and often is necessary to establish that the claimant’s property is the ultimate source of the defendant’s enrichment in order to demonstrate that the property it acquired or saved was ‘at the claimant’s expense’” (report § 57) “Thus, for example, if a defendant has acquired or saved property at the claimant’s expense as a result of a chain of transactions involving a scheme to embezzle and launder the claimant’s assets, such that it lacked legal grounds to acquire or save the property, then the claimant may claim against that defendant, even if it was never in possession of the claimant’s original property, it is not a party to any transaction with the claimant and did not commit a tort against the defendant” (report § 58) and, in a footnote to the latter passage: “For example, if party B steals money from party A and uses it to pay off a debt to avoid foreclosure on a property pledged by party C, party C will have been enriched at the expense of party A even though it received no property from party A.”
“Article 261. Claim of property from a bona fide acquirer 1. If property was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and should not have known (honest acquirer), the owner shall have the right to demand this property from the acquirer only in the event that the property was lost by the owner or by the person to whom the property was transferred by the owner for possession or stolen or from another, or was taken out of their possession by other means than their will. 2. If property was acquired without consideration from a person who did not have the right to alienate it, the owner shall have the right to demand property in all instances. 3. The claim of property on the grounds specified in paragraph 1 of the present article shall not be permitted if the property has been sold in accordance with the procedure established for the execution of court decisions. Article 262. Limitation of Money and Securities Money as well as bearer securities may not be claimed from a bona fide acquirer.”
“(1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action— (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b) to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. … (3) Subject to the preceding provisions of this section, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued. For the purposes of this subsection, the right of action shall not be treated as having accrued to any beneficiary entitled to a future interest in the trust property until the interest fell into possession.”
“32.— Postponement of limitation period in case of fraud, concealment or mistake . (1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either— (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent. (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. (3) Nothing in this section shall enable any action— (a) to recover, or recover the value of, any property; or (b) to enforce any charge against, or set aside any transaction affecting, any property; to be brought against the purchaser of the property or any person claiming through him in any case where the property has been purchased for valuable consideration by an innocent third party since the fraud or concealment or (as the case may be) the transaction in which the mistake was made took place. (4) A purchaser is an innocent third party for the purposes of this section— (a) in the case of fraud or concealment of any fact relevant to the plaintiff's right of action, if he was not a party to the fraud or (as the case may be) to the concealment of that fact and did not at the time of the purchase know or have reason to believe that the fraud or concealment had taken place; and (b) in the case of mistake, if he did not at the time of the purchase know or have reason to believe that the mistake had been made. …”
“(5) Subject to subsection (6) below [a non-relevant exception], a person shall be treated as claiming through another person if he became entitled by, through, under, or by the act of that other person to the right claimed, and any person whose estate or interest might have been barred by a person entitled to an entailed interest in possession shall be treated as claiming through the person so entitled.”
“53. Counsel for Madiyar are undoubtedly correct that as a matter of law, when money is remitted from one bank account to another bank account, no property is transferred. The relationship between a bank and a customer who holds an account with the bank is that of debtor and creditor. When the account is in credit, the bank is indebted to its customer. The debt is a form of property, a chose in action, belonging to the customer. When money is "transferred" to the bank account of another person, the legal analysis is that the indebtedness of the payor's bank to its customer is discharged or reduced by the relevant amount and a new debt in an equivalent amount is created, owed by the payee's bank to its customer: see e.g. R v Preddy[1996] AC 815 , 834. The new debt is a different chose in action from the original debt and is therefore not property which was transferred to the payee from the payor. 54. As a matter of law, therefore, no property was transferred from Mr Ablyazov to Madiyar when the sum of£1.1 million was paid into Madiyar's bank account. But it is not obvious why this should matter. There is nothing in the wording of section 38(5) which says that, for A to be treated as claiming through B, the right claimed by A must be to property which has been transferred from B. The only requirement is that A became entitled "by, through, under or by the act of " B to the right claimed (emphasis added). On a plain reading of the statutory provision, that requirement is met where (as in this case) the right to the chose in action constituted by money credited to the bank account of the payee was acquired through or by the act of the payor in causing the payment to be made.”
“(1) Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter— (a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings, subject to sections 1A and 1B; and (b) except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply.”
“ Exceptions to s. 1. (1) In any case in which the application of section 1 above would to any extent conflict (whether under subsection (2) below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict. (2) the application of section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings.”
“(2) Notwithstanding any provisions to the contrary of the law of the Republic or of the law of any country, an international trust shall not be void or voidable and no claim may be brought in respect of assets transferred to an international trust in the event of the settlor’s bankruptcy or liquidation or in any action or proceedings against the settlor at the suit of his creditors and notwithstanding further that the trust is voluntary and without consideration having been given for the same, or is made on or for the benefit of the settlor, the spouse or children of the settlor or any of them, unless and to the extent that it is proven to the satisfaction of the Court that the international trust was made with the intent to defraud the creditors of the settlor at the time when the payment or transfer of assets was made to the trust. The onus of proof of such intent lies on his creditors. (3) An action against a trustee of an international trust pursuant to the provisions of subsection (2) must be brought within a period of two years from the date when the transfer or disposal of assets was made to the trust.”
“a trust in respect of which: (a) The settlor, being either a natural or legal person, is not a resident of the Republic during the calendar year immediately preceding the creation of the trust; (b) at least one of the trustees for the time being is a resident in the Republic during the whole duration of the trust; and (c) no beneficiary, whether a natural or legal person, other than a charitable institution, is a resident of the Republic during the calendar year immediately preceding the year in which the trust was created: …”
““trust” does not include the duties of the mortgage lender, but with this exception, the expression “trust” and “trustee” extend to implied trusts, and to cases where the trustee has interest in the property of the trust, and to the duties related to the office of the personal representative, and “trustee”, when the context allows, includes a personal representative, and “new trustee” includes an additional trustee.”
“65. Hence, even having regard to the margin of appreciation left to the State, the Court considers that the application of a rigid time-limit for the exercise of paternity proceedings, regardless of the circumstances of an individual case, and in particular, the knowledge of the facts concerning paternity, impairs the very essence of the right to respect for one's private life underArticle 8 of the Convention . 66. In view of the above, and in particular having regard to the absolute nature of the limitation period, the Court considers that a fair balance has not been struck between the different interests involved and, therefore, that the interference with the applicant's right to respect for her private life was not proportionate to the legitimate aims pursued. 67. Accordingly, the Court finds that there has been a violation of Article 8.”
“71. In view of the grounds on which it has found a violation ofArticle 8 of the Convention (see paragraphs 61-67 above), the Court considers that no separate issue arises under this provision.”
“In Giorgallas v. Hadjichristodoulou (2000) 1 C.L.R. 2060, it was considered, inter alia, that the protection of family life enshrined as a fundamental right by Article 15.1 of the Constitution and at the same time by Article 8.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rule 39/62), extends to the procedural means provided for the formation of the family and its relations between its members and that rights inherent in family life constitute "civil rights" in the sense that the term is enshrined in Article 30 of the Constitution and in the Article 6.1 of the Convention relating to the right of access to a Court of Civil Rights. In the case Finikaridou [Phinikaridou] v. Odysseos (2001) 1 C.L.R. 1744, the Plenary Session of the Supreme Court, by a majority, ruled that Article 22 (3) of the Law on Children (Kinship and Legal Status) (Law 187/91), does not contradict Articles 28, 15 and 30 of the Constitution. This article provides that the right of the child to seek judicial recognition is barred 3 years after reaching adulthood. In this case, the five-judge minority concluded that the provision in question was in conflict with the provisions of Articles 15.1, 30.1 and 30.2 of the Constitution and would therefore be declared unconstitutional. In its decision, the minority also stated the following: “The introduction of a deadline for the exercise of the right to recognition of paternity, irrespective and regardless of the knowledge of the facts that substantiate it, reduces the right to a degree of annihilation. The core of the right to family life is violated and the granted right becomes only a legal right, is not respected.”
“423 Transactions defrauding creditors. (1) This section relates to transactions entered into at an undervalue; and a person enters into such a transaction with another person if— (a) he makes a gift to the other person or he otherwise enters into a transaction with the other on terms that provide for him to receive no consideration; (b) …; or (c) he enters into a transaction with the other for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by himself. (2) Where a person has entered into such a transaction, the court may, if satisfied under the next subsection, make such order as it thinks fit for— (a) restoring the position to what it would have been if the transaction had not been entered into, and (b) protecting the interests of persons who are victims of the transaction. (3) In the case of a person entering into such a transaction, an order shall only be made if the court is satisfied that it was entered into by him for the purpose— (a) of putting assets beyond the reach of a person who is making, or may at some time make, a claim against him, or (b) of otherwise prejudicing the interests of such a person in relation to the claim which he is making or may make. (4) In this section “the court” means the High Court……. (5) In relation to a transaction at an undervalue, references here and below to a victim of the transaction are to a person who is, or is capable of being, prejudiced by it; and in the following two sections the person entering into the transaction is referred to as “the debtor”.”
““transaction” includes a gift, agreement or arrangement, and references to entering into a transaction shall be construed accordingly.”
“425 Provision which may be made by order under s. 423. (1) Without prejudice to the generality of section 423, an order made under that section with respect to a transaction may (subject as follows)— (a) require any property transferred as part of the transaction to be vested in any person, either absolutely or for the benefit of all the persons on whose behalf the application for the order is treated as made; (b) require any property to be so vested if it represents, in any person’s hands, the application either of the proceeds of sale of property so transferred or of the money so transferred; (c) release or discharge (in whole or in part) any security given by the debtor; (d) require any person to pay to any other person in respect of benefits received from the debtor such sums as the court may direct; (e) provide for any surety or guarantor whose obligations to any person were released or discharged (in whole or in part) under the transaction to be under such new or revived obligations as the court thinks appropriate; (f) provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for such security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction. (2) An order under section 423 may affect the property of, or impose any obligation on, any person whether or not he is the person with whom the debtor entered into the transaction; but such an order— (a) shall not prejudice any interest in property which was acquired from a person other than the debtor and was acquired in good faith, for value and without notice of the relevant circumstances, or prejudice any interest deriving from such an interest, and (b) shall not require a person who received a benefit from the transaction in good faith, for value and without notice of the relevant circumstances to pay any sum unless he was a party to the transaction. (3) For the purposes of this section the relevant circumstances in relation to a transaction are the circumstances by virtue of which an order under section 423 may be made in respect of the transaction. (4) In this section “security” means any mortgage, charge, lien or other security.”
“401 The paradigm case for the application of section 423 involves people who are clearly creditors. The section is plainly intended to allow the unscrambling of transactions which deplete the assets of a debtor which would otherwise be available for creditors. That is how its purpose is summarised in Bennett & Armour, Vulnerable Transactions in Corporate Insolvency (2003), Chapter 3: “3.1Part XVI of the Insolvency Act 1986 is headed ‘Provisions against debt avoidance’. Its provisions render vulnerable attempts by debtors to dissipate their assets so as to prevent creditors from obtaining satisfaction of their claims.” 402. Similar general statements appear in authorities. For example: “The object of sections 423 to 425 being to remedy the avoidance of debts, the ‘and’ between paragraphs (a) and (b) of section 423(2) must be read conjunctively and not disjunctively . . . [The power given by the section] is not a power to restore the position generally, but in such a way as to protect the victims’ interests; in other words, by restoring assets to the debtor to make them available for execution by the victims”: see Chohan v Saggar[1994] 1 BCLC 706 , 714, per Nourse LJ.
“…it will often be the case that the motive to defeat creditors and the motive to secure family protection will co-exist in such a way that even the transferor himself may be unable to say what was uppermost in his mind.”
“Trade takes place increasingly on an international basis. So does fraud. Money is transferred quickly and easily. To meet these changing conditions English courts are more prepared than formerly to grant injunctions in suitable cases against non-residents or foreign nationals in respect of overseas activities. As I see it, the considerations set out above and taken as a whole lead irresistibly to the conclusion that, when considering the expression “any person” in the sections, it is impossible to identify any particular limitation which can be said, with any degree of confidence, to represent the presumed intention of Parliament. What can be seen is that Parliament cannot have intended an implied limitation along the lines of In re Sawers(1879) 12 Ch D 522 . The expression therefore must be left to bear its literal, and natural, meaning: any person.”
“150 Three further points must be made. First, it is not an objection to the judge’s view that the limitation period may begin many years after the transaction. That state of affairs is perfectly capable of arising under other sections of the 1980 Act, e g sections 28 and 32. Secondly, I do not agree that the appointment of the trustee in bankruptcy is not an ingredient of the cause of action vested in the trustee. It is not until a bankruptcy order is made that the trustee is identified as the person entitled to sue. Thirdly, it is in my view immaterial that when the bankruptcy order is made there may be other victims of the transaction whose individual claims may already be statute-barred but who may nevertheless be able to claim as creditors in the bankruptcy.”
“…The monies that Asilbekova used to fund the purchase by Drez of shares in Unistarel had been gifted to her by Sholpan. Sholpan had received the money that she gift ed to Asilbekova as part of a distribution from the then trustee, Cypcoserve Limited, of the WS Settlement…….following a sale of shares in Exillon Energy plc…”
“…The funds for the purchase of the Ilford Properties by Xyan had been distributed to Sholpan by the trustees of the WS Settlement as part of the WS Settlement Distributions.”
“The starting point is different because the claimant whose name is not on the proprietorship register has the burden of establishing some sort of implied trust, normally what is now termed a “common intention” constructive trust. The claimant whose name is on the register starts (in the absence of an express declaration of trust in different terms, and subject to what is said below about resulting trusts) with the presumption (or assumption) of a beneficial joint tenancy.”
“… that in the case of the purchase of a house or flat in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage, there is no presumption of a resulting trust arising from their having contributed to the deposit (or indeed the rest of the purchase) in unequal shares. The presumption is that the parties intended a joint tenancy both in law and in equity. But that presumption can of course be rebutted by evidence of a contrary intention, which may more readily be shown where the parties did not share their financial resources.”
“Maksat is about to arrange a sale of some of his shares next week…”
“What will have to happen first that Maksat will have to sign scan and send a Letter of Wishes to the Trustees indicating how many shares he wishes them to transfer. Then based upon that letter of wishes, the Trustees will send instructions to JB [Julius Bear]”
“ the buyer of this property will be Sholpan’s mother…They would be buying the shares in an SPV, but Larissa would be the BO [i.e. beneficial owner]”
“ There is no tax benefits [sic] to be gained, legitimate or otherwise, They are doing it in the name of a family member, not an outsider ”
“16.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. 16.2 Each party irrevocably Agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).”