C’est une affaire qui date de plusieurs années, et la Jersey’s Royal Court a rendu son jugement vers la fin de septembre. Elle concerne la famille Crociani et le fonds le Grand Trust. En quoi cette histoire nous concerne ? Une firme locale, Appleby (Trust) Mauritius Ltd, est pointée du doigt pour avoir agi en violation de ses responsabilités de ‘trustee’. Sont également mentionnés dans le jugement : Gilbert Noël, Patrick Lee Mo Lin, GFin Corporate Services Ltd, Benoit Chambers et Clarel Benoit. Sollicitée pour un commentaire par rapport à ce cas, la Financial Services Commission (FSC) a répondu ceci : « Kindly note that in line with our Regulatory Framework, we are currently assessing all avenues »
Ce jugement de 239 pages comprenant 859 paragraphes rendu par la Jersey’s Royal Court, fin septembre, est un sujet qui alimente les conversations dans le secteur financier. « Very scathing and damning against some lawyers including Mauritius legal professional and service providers », s’avancent à dire certaines personnes. En effet, la firme locale, Appleby (Trust) Mauritius Ltd est vivement critiquée dans ce jugement. à noter que Appleby Mauritius et GFin Corporate Services Ltd ont été parmi les ‘defendants’ dans cette affaire.
Un des commentaires dans le jugement, à l’encontre de la firme locale, se lit comme suit: « We have considered the conduct of Appleby Mauritius in detail, but suffice it to say that it conducted itself in a manner that was consistently hostile and disloyal to the beneficiaries of Cristiana’s trust, one of the two trusts comprised within the Grand Trust and of which it was the purported trustee ».
‘Judgement against Appleby Mauritius’
De ce fait, les juges ont « set aside as void and of no legal effect » la nomination, en 2012, d’Appleby Mauritius et de GFin Corporate Services en 2016. Ils ordonnent également de « Give judgement against Appleby Mauritius on liability arising out of the breaches of trust we have found against it, with compensation for any loss to the trust fund of the Grand Trust arising from such breaches to be assessed ».
Invitée à commenter ce jugement, la Financial Services Commission (FSC) nous répond ceci : « Kindly note that in line with our Regulatory Framework, we are currently assessing all avenues ». Par contre, certains acteurs évoluant dans le secteur financier n’hésitent pas à donner, sous couvert d’anonymat, leur lecture de l’affaire. Car, pour eux, c’est l’image de Maurice qui prend un sale coup.
La réputation de Maurice
« En tant que ‘trustee’, on a le devoir d’agir dans l’intérêt de tous les bénéficiaires sans exception, et non plus accorder une préférence à l’un d’entre eux. C’est un peu ce qu’Appleby Mauritius a fait. Les responsables ont agi en violation de leurs devoirs et responsabilités en tant que ‘trustee’ », explique le directeur d’une Management Company.
Un autre directeur de compagnie ajoute que notre Trusts Act de 2001 est plus ou moins semblable à celle de Jersey. « S’il y a violation, et surtout que certaines personnes démontrent qu’elles ne comprennent pas les responsabilités d’un ‘trustee’, c’est la réputation de Maurice qui est en jeu. Quelle est la position de la FSC dans ce cas ? D’après le jugement, Appleby Mauritius aura à payer la note, mais le montant n’a pas encore été défini. Reste à savoir si la firme pourra payer ».
L’histoire de la famille Crociani
[Edoarda Crociani et Camilla]
Pour nos interlocuteurs, le ‘trust administration’ représente un travail assez conséquent dans le secteur du global business. « Si on ne peut pas faire confiance à une firme comme Appleby Mauritius, à qui peut-on faire confiance ? », s’interrogent-ils.
A l’origine de ce jugement : l’histoire de Edoarda Crociani, et ses filles, Camilla (devenue par mariage duchesse de Castro) et Cristiana. En 1987, Edoarda Crociani décide de créer un trust (Grand Trust) avec des fonds de placements aux Bahamas, dont les dividendes seront reversés à ses filles et à ses futurs petits-enfants. Depuis, Cristiana Crociani qui a pris ses distances de sa mère et sa sœur, contestait le versement équitable des dividendes pour elle et ses deux filles. Le tribunal lui a donné gain de cause pour 149 millions de livres sterling.
Nous présentons ci-dessous les principaux points concernant Appleby (Trust) Mauritius Ltd, GFin Corporate Services Ltd, Gilbert Noël, Patrick Lee Mo Lin et Benoit Chambers.
• It was in January 2012, when Madame Crociani (Edoarda Crociani) and Camilla were on holiday in Mauritius, that Madame Crociani telephoned Mr Le Cornu asking for Appleby Mauritius to be appointed as sole trustee of the Grand Trust, a suggestion that had not even been hinted at before. It is worth taking stock of the position at that time: the portfolio of the Grand Trust had been transferred to the Fortunate Trust and the Fortunate Trust then revoked, with Madame Crociani withdrawing all of the assets, which were then in large part moved away from BNP and dispersed to various destinations around the world.
• Croci BV, the debtor under the Promissory Note, was now owned by Camilla. The financial statements of the Grand Trust for the period ending 30th September, 2011, show the capital outstanding on the Promissory Note at US$32 million, and the accrued interest (which had not been collected since 2003) at US$16.3 million, a total of US$48 million, a very significant sum, for which the company now owned by Camilla was liable. Any payment by Croci BV to the Grand Trust under the Promissory Note would inure as to one half to the benefit of Cristiana’s trust, Cristiana being someone Camilla had made clear at the taped 4th June, 2011, meeting (attended by Mr Foortse) she did not want to get a penny.
• The reasons given by Madame Crociani to Mr Le Cornu for the appointment of Appleby Mauritius did not, he said, come as a surprise to him. She and Camilla spent significant periods of time in Mauritius, but had never been to Jersey. He felt that she and Camilla had more in common with Mauritius, where Camilla intended to buy a property. More importantly, Mauritius was a French-speaking country.
• In her statement, Madame Crociani says that whilst in Mauritius, she was seeking advice on a property development and was introduced to Mr Gilbert Noël, a lawyer in the firm of Appleby in Mauritius, and a director of Appleby Mauritius, who mentioned that Appleby Mauritius provided trust and fiduciary services.
• Madame Crociani telephoned Mr Foortse saying she had met with Appleby Mauritius and thought it was a good idea for that firm to be put in charge of the Grand Trust, and to move the trust to Mauritius. She said she would feel happy with that arrangement, in particular because she wanted to spread her financial interests more, and because the firm could communicate in French. He was perfectly happy to be replaced as a trustee, and was satisfied that Appleby was a well-respected and reputable global law firm with an associated trust and fiduciary business, something he checked by telephone with BNP Jersey.
• The appointment was undertaken with great speed. Mr Noël e-mailed Mr Le Cornu on 31st January, 2012, saying that Madame Crociani wished to proceed with the retirement of the existing trustees and the appointment of Appleby Mauritius, and copied in Advocate Naomi Rive, of Appleby in Jersey. She produced a draft deed of retirement and appointment, which was approved by Mr Noël that day. Mr Le Cornu made a number of minor comments to the draft the next day and it was executed by Madame Crociani on 2nd February, 2012. By 7th February, it had been signed by Mr Foortse, who was in New Zealand, and finally by BNP Jersey on 10th February, 2012. No due diligence was undertaken by Appleby Mauritius with BNP Jersey, the requests for documentation coming after its appointment.
• Mr Foortse said he saw no advantage or disadvantage to the beneficiaries of Cristiana’s trust in the appointment of Appleby Mauritius and the change of the proper law to that of Mauritius. Mr Le Cornu recollects that he did take oral advice from Ogier, but only on the terms of the indemnity. Again, there is no file note or record of that. He said there was no discussion internally about the proposed change in the proper law. He believed that Mauritius trust law was based on English law and Jersey law, but that was the extent of his knowledge. He did not know that under Mauritian law, there were more restrictive rights of information for beneficiaries, which we understand to be the case. He sought no advice on whether the Grand Trust would be valid under Mauritian law, or whether any changes might be required to it, bearing in mind it was by its terms, unamendable.
• For the reasons that follow, we conclude that for Madame Crociani, the appointment of Appleby Mauritius was a tactical move, the purpose of which was to impede Cristiana’s claims. Whilst BNP Jersey and Mr Foortse may not have knowingly shared that intention, the subsequent conduct of Appleby Mauritius demonstrates that it did; indeed, Appleby Mauritius, as trustee of the Grand Trust, actively impeded the claims of Cristiana, its own beneficiary, against the former trustees, claims which if successful would have reconstituted the trust fund of which Appleby Mauritius was trustee.
• The only witness Appleby Mauritius produced for the hearing was Mr Lee Chee Kiong Patrick Lee Mo Lin (“Mr Lee”), a director of Appleby Mauritius. He explained that prior to January 2016, Appleby Mauritius was owned by the law firm of Appleby in Mauritius. It had started doing fiduciary business relatively recently, at the end of 2007. Mr Noël was a partner in the law firm and a director of Appleby Mauritius. Following a global management buy-out, which took effect in December 2015, Appleby Mauritius ceased to be owned by the law firm and Mr Noël ceased to be a director, although the law firm continued as its legal adviser. Its name was changed to Estera Trust (Mauritius) Limited.
• Mr Lee is an accountant and his role at the material time was to deal with human resources, finance and operational matters. He had no client dealing role, and had no responsibility for the Grand Trust file. His only active involvement in the Grand Trust was in the renegotiation of the Promissory Note in January 2016, shortly before GFin was appointed trustee. It was Mr Noel who had direct dealings with Madame Crociani and Camilla, and who was responsible for the affairs of the Grand Trust and so it became quickly apparent to the Court that it was the evidence of Mr Noel that would most assist the court. Advocate Moran informed us that he had refused to give evidence.
• There are no notes of any of the meetings between Madame Crociani, Camilla and Mr Noel in which Appleby Mauritius becoming trustee of the Grand Trust would have been discussed. The limited documentary evidence we do have shows Mr Noël acting extensively for and in the interests of Madame Crociani and Camilla:
(i) On 6th January, 2012, Mr Lee was approached by a client relationship manager at AfroAsia Bank in Mauritius, the bank to which Madame Crociani had transferred €15 million.
(ii) The first meeting occurred between 9th and 13th January, 2012, and was attended by Mr Lee, Mr Noël, Madame Crociani, Camilla and Miss Dominique Leung (of Appleby Mauritius). At the meeting, Madame Crociani discussed buying a property in Mauritius, and asked for information about how to create a trust in Mauritius.
• On 16th January, 2012, the compliance officer at Appleby Mauritius sent Mr Noël and others an e-mail about a trust which Madame Crociani wished to establish for the benefit of Camilla and where there had been a very limited disclosure of the source of funds. The e-mail said this: -
“Following our internal discussion I hereby note the following (some of which are definitely red flags) - The client is very secretive; The client is one who is liaising with us (note usually high net worth clients appoint other people to do such things); The client does not want (is not keen) to liaise via email because she stated that she does not want any trail; She mentioned that telephone calls should be kept to a minimum; She also mentioned that when she sends money to the trust she wants to do it in such a way that there is no trail (she stated that she wants to wipe out all traces of the source of funds – that is funds transferred); She also explained that she does not want her other daughter to know the existence of the trust because the beneficiary would be Mrs Camilla Crociani de Bourbon de Siciles and she left only a small amount of money for the other daughter; I also note that Mrs Edoarda Vesel stated that she wants the distribution to be at her request; Given these issues I am of the view that it would be quite difficult to monitor the transactions of the client and they would not be too keen to provide for information. Given these red flags the risk profile may be above our risk appetite.”
• Mr Lee told us that he spoke to Ms Farah Ballands of Appleby in Jersey, who was a director of Appleby Mauritius, because he was not comfortable with taking on Madame Crociani as a client. She warned him against doing so, but said it was Mr Noël’s call. Mr Noël evidently took on Madame Crociani as a client, despite these red flags.
• Whilst acting extensively for Madame Crociani and Camilla, Mr Noël agreed that his firm’s trust company, Appleby Mauritius, would also become trustee of the Grand Trust, which would involve Appleby Mauritius in acting in the interests of Cristiana in so far as Cristiana’s trust was concerned, someone with whom Madame Crociani and Camilla were in open warfare. On the same date that Appleby Mauritius was appointed the new trustee of the Grand Trust, it entered into a fee agreement and indemnity with Madame Crociani by which she undertook to pay its fees and expenses for acting as trustee. The Grand Trust was a dry trust, and unless interest was paid under the Promissory Note, Appleby Mauritius was dependent upon Madame Crociani for its remuneration. We now review its conduct as trustee.
• Following its appointment as trustee of the Grand Trust on 10th February, 2012, Appleby Mauritius took no steps to inform Cristiana as principal beneficiary of Cristiana’s trust, of its appointment. The first she learnt of its appointment was in a letter from Ogier of 16th April, 2012, sent in response to a letter from Bedell Cristin on 23rd March, 2012, requesting information about the Grand Trust and the Fortunate Trust.
• As a consequence, Bedell Cristin wrote to Appleby Mauritius on 30th April, 2012, asking for information in Cristiana’s capacity as beneficiary of the Grand Trust. Mr Lee told us that he took this letter to Mr Noël, who he accepted would have discussed it with Madame Crociani and Camilla, and who instructed that the following response should be sent, albeit some six weeks later on 11th June, 2012:
“We referred to your letter dated 30th April 2012 requesting certain information relating to the above named Trust. The trustee of the Trust has fully considered your request and objects to the disclosure of such information on the basis that terms of the Trust do not so authorise the Trustee to disclosure of such information to any beneficiary of the Trust.
Furthermore, to disclose such information will conflict with the trustee’s obligations under the Trust deed and the Trust Act 2001 and would have an unreasonable impact on the administration of the said Trust.”
• This is a shameful and hostile response to a legitimate request for information by the principal beneficiary of Cristiana’s trust from her new trustee. It is also untrue. There is nothing in the terms of the Grand Trust which prevents the trustees from giving her information – indeed clause Eighth expressly authorises the trustees to account to any income beneficiary. The suggestion that complying with its obligation to account to its beneficiary conflicted with its obligations is wrong in law. The obligation to account lies at the heart of the relationship between a trustee and its beneficiary. It is difficult to see how providing information would have had an unreasonable impact upon the administration of the Grand Trust. It took some two years before Appleby Mauritius complied fully with Cristiana’s request for information in relation to the Grand Trust.
• In January 2016 Appleby Mauritius then sought to evade the judgment of the Privy Council, by appointing GFin as the new trustee, assigning to it the Promissory Note and amending the (unamendable) trust deed, to create a platform upon which GFin could, and did, launch rival proceedings in Mauritius and an application for an anti-suit injunction.
• Shortly before appointing GFin as the new trustee, Appleby Mauritius purported to amend the Promissory Note, extending the date of repayment to 2022, thus relieving Croci BV, then owned by Camilla, of the burden of repaying the capital at the end of this year, and this without ascertaining the needs of the beneficiaries of Cristiana’s trust.
• The way Appleby Mauritius acted as trustee of the Grand Trust, and in particular as trustee of Cristiana’s trust, from its appointment to its retirement, was consistently hostile and disloyal to the beneficiaries of Cristiana’s trust.
• For all of these reasons, the appointment of Appleby Mauritius and the change in the proper law must fail and we will set it aside as being void and of no effect.
• The position of Appleby Mauritius here is remarkable, in our view. As the current trustee of the Grand Trust, its duty was to ensure that any trust property vested in it. Again, the scenario being considered was the Court finding that some US$132 million had been paid away improperly. In that eventuality, the duty of Appleby Mauritius was to recover that sum for the benefit of its beneficiaries. Instead, it decided that it was not in the interests of its beneficiaries to have the Grand Trust fund reconstituted, a basic right of theirs, and it joined in with the very persons responsible for that breach of trust in deciding that the assets improperly paid away should stay with the person who had received them and who would have had no right to retain them.
• According to Mr Lee, Appleby Mauritius first received a copy of the Promissory Note in April 2013, over a year from its appointment, when they started work on the accounts of the Grand Trust. He also says that he did not know who owned Croci BV; he thought it was an independent company. However, Mr Lee only had an overview of the file, as Miss Leung was responsible for its day to day administration under the direction of Mr Noël, who was the director of Appleby Mauritius responsible for the trusteeship until his resignation as a director in December 2015. As will be seen he remained influential thereafter. We have no doubt that at all times Mr Noël knew who was behind Croci BV. It is clear from the evidence we reviewed earlier that the Promissory Note was a live issue for him and Madame Crociani from the outset.
• A resolution agreeing to these changes was executed by Appleby Mauritius on 26th January, 2016, which does not set out the reasons. The maturity of the Promissory Note was extended from 10th December, 2017, to 12th December, 2022, with interest from 11th December, 2017, increasing to 11% per annum.
• Apart from internal discussions he said he had with administrators within Appleby Mauritius, Mr Lee consulted only with Mr Noël, who we know had a close working relationship with Madame Crociani and Camilla and who never communicated with Cristiana. Mr Lee told us that the resolution agreeing the amendment of the Promissory Note was in fact drafted by “Benoit Chambers” who as we understand it act for Madame Crociani; indicative of her close involvement in the matter. The interests of the beneficiaries of Cristiana’s trust in this important change to the only asset of the Grand Trust were not taken into account and it can safely be assumed that if Cristiana had been consulted, she would have vigorously opposed any extension.
• Mr Lee says that he was away in the Seychelles office of Appleby from 26th – 29th January, 2016. The documentation discovered is very sparse, but there is an e-mail timed at 11.43 on 28th January, 2016, from Mr Noël to Mr Clarel Benoit, Madame Crociani’s Mauritius counsel, saying:
“We need to identify a new trustee a.s.a.p. Please let me know your views.”
Without the evidence of Mr Noël, we do not know who “We” are, why a new trustee was needed and why it was urgent. We also do not know why he was asking this question of Madame Crociani’s counsel and not Appleby Mauritius.
Mr Benoit responded at 12.09 that day saying that:
“GFin were willing to act. Not easy to hire the services of anyone else because of the litigation risks. We are preparing the deed of appointment ….”
It was Madame Crociani’s counsel, therefore, who proposed GFin and prepared the draft instrument without, it would seem, the knowledge of anyone at Appleby Mauritius.
• From what Mr Lee subsequently understood, at some point on 28th January, 2016, Mr Noël informed Miss Leung and another administrator at Appleby Mauritius that Appleby Mauritius needed to resign and to get the files ready. No explanation seems to have been provided by him.
• There is then a brief exchange of e-mails between Mr Noël and Mr Benoit over the lunch period on 29th January, 2016, and we presume representatives of GFin, discussing the terms of the deed of appointment, followed by a meeting that afternoon, when the instrument of appointment and retirement of GFin and, we assume, the assignment of the Promissory Note were executed.
• According to Mr Lee, everything was done by or at the instigation of Mr Noël and Mr Benoit, as the legal counsel for Madame Crociani, under the purported protection of legal privilege, hence the paucity of documents discovered.
• Remarkably GFin appear to have agreed to be appointed a day after it was first approached by Mr Benoit without carrying out any due diligence with Appleby Mauritius.
• Appleby Mauritius have given inconsistent accounts as to why it wished to resign as trustee of the Grand Trust, explored in the Court’s judgment of 18th April, 2016, (JRC 085), but what is at issue here is not its desire to retire, for whatever reason, but its decision to appoint GFin and assign the amended Promissory Note to it.
• Following its appointment GFin declined to be made a party to the Jersey proceedings and on the basis of these provisions, then made two applications to the courts of Mauritius.
• We have now found that the appointment of Appleby Mauritius in January 2012 was void and it, therefore, was acting as de facto trustee/trustee de son tort. As a de facto trustee/trustee de son tort, it would not have had the power to appoint GFin as a new trustee. Even if it had validly been appointed trustee, Advocate Moran agreed that there was no power under clause Twelfth, the power expressly relied on in the deed of retirement and appointment, to appoint another corporate trustee in the same jurisdiction, and she accepted the expert opinion of Mr Marc Hein SC of 11th October, 2016, instructed by BNP Jersey, that there is no other power under the laws of Mauritius upon which it could have validly appointed GFin. We also accept that this is the case, as does Advocate Redgrave, and that therefore the appointment of GFin, as conceded by Advocate Moran, was an excessive execution. It follows that Appleby Mauritius, having no power to appoint GFin as trustee, was in breach of trust in assigning the Promissory Note to it.
• We do not accept that Mr Noël or Mr Benoit took these steps on their own initiative. Lawyers act on instructions. They were not instructed to do so by Appleby Mauritius, and certainly not by Cristiana. They could only, therefore, have acted on the instructions of Madame Crociani and/or Camilla, being the parties who benefited.
• We conclude that the amendment to the Promissory Note, the appointment of GFin, the assignment to it of the Promissory Note and the purported amendment to the Grand Trust deed all formed part of a concerted plan by Madame Crociani and/or Camilla, executed through Appleby Mauritius misusing its purported powers as trustee, to place further impediments in the way of the plaintiffs’ claims in these proceedings.
These steps were undertaken secretly when Appleby Mauritius knew the validity of its appointment as trustee was being challenged and that it might not therefore have the ability to exercise any of the powers given to the trustees of the Grand Trust.
• Appleby Mauritius was, therefore, in breach of trust as de facto trustee/trustee de son tort of the Grand Trust in: -
(i) Agreeing to the amendments to the Promissory Note;
(ii) Appointing GFin as trustee;
(iii) Assigning the Promissory Note to GFin; and
(iv) Amending the provisions of the Grand Trust, thus giving GFin a platform to commence rival proceedings in Mauritius.
• Appleby Mauritius cannot avoid liability for any losses to the trust fund of the Grand Trust caused by these breaches of trust on the grounds that it was not validly appointed as trustee or did not have the Promissory Note properly vested in it, for the reasons we set out below under the heading of “Remedies”.
Appleby Mauritius injoignable, Patrick Lee nous répond
BIZweek essaie, en vain depuis lundi, de prendre contact avec les représentants d’Appleby Mauritius, dont le siège social se trouve au Medine Mews à Port-Louis. Nous leur avons également adressé un courriel dans ce sens. Ce n’est que pendant la lecture du jugement que nous avons appris que la firme aurait changé de nom pour être désormais connue comme Estera Trust (Mauritius) Limited. Le Managing Director n’est autre que Patrick Lee Mo Lin, dont le nom est cité à plusieurs reprises dans le jugement. On y retrouve également Pinpin Kweton, Operations Director, dont le nom est aussi cité.
Nous lui avons adressé un courriel pour un commentaire à la suite de ce jugement. Il nous a fait parvenir sa réponse:
« The Jersey Royal Court has heard the case of Crociani v Crociani and others and Princess Camilla de Bourbon des Deux-Sicillies and the judgment has now been received. This is a complex matter which is subject to appeal and we are unable to provide further comment on the case.”
Quant à Appleby (Mauritius) Ltd, elle avait pour partenaires, entre autres, Gilbert Noël et Malcolm Moller. à noter que Gilbert Noël a démissionné de la firme en 2015.
En ce qui concerne GFin Corporate Services Ltd, les directeurs sont : Tahen Kumar Servansingh (Strategic Adviser), Sheokumar Gujadhur (Board Director), Tej Kumar Gujadhur (Founder, CEO & Board Director), Santosh Kumar Gujadhur (Founder, COO & Board Director) et Robin Rajanah (Senior Tax Consultant).