Thu | Apr 18, 2019

Heineken wait for D&G shares extended

Published:Sunday | February 10, 2019 | 12:11 AM

Heineken Sweden’s wait time to acquire Margie Geddes’ shareholdings in drinks company Desnoes & Geddes Limited has just been extended due to developments in the court fight over legal fees between the widow and a law firm.

By a majority decision, the Court of Appeal has directed that an application filed by Geddes’ company, Bardi Limited, to lift a provisional charging order and injunction over 84 million shares it holds in D&G, be sent back to the Supreme Court for the issues to be resolved.

Bardi had appealed against an October 2017 decision by Justice Nicole Simmons, who refused an application to lift the order and the injunction that was imposed in December 18, 2012 by Justice Courtney Daye on the request of law firm McDonald Millingen.

The law firm had filed a claim against Margie Geddes, the widow of D&G heir Paul Geddes, for fees for work done between 1999 and 2008. The costs in the court documents amount to US$1,048,807.19.

The provisional charging order was obtained ex parte and attached to the two and only issued ordinary shares in Bardi, and the 84 million D&G shares it held. Geddes was also barred from trading both sets of shares.

Bardi argued, however, that its shares in D&G are not jointly owned with Margie Geddes and so it owes no debt to the law firm.

Court of Appeal Justice Hilary Phillips, in allowing the appeal, ruled that Supreme Court Justice Simmons had no power to set aside the orders of Justice Daye, as there were issues in the case still to be determined definitively and that ought to have been decided in the hearing of the application to discharge the orders.

Those issues relate to the ownership of the assets registered in the name of Bardi; whether Geddes and Bardi should be considered separate legal entities; whether Geddes was acting at all material times as the alter ego of Bardi; and whether in the circumstances there should be a piercing of the corporate veil.

Justice Phillips said the restraint against the disposition of 7.5 million D&G shares in the name of Bardi remains in place and should now be resolved at the new discharge hearing. She also ordered that Geddes, who was not named as a party to the appeal by McDonald Millingen, be served with the reissued application.

Geddes began fighting the freezing order in April 2013, and the case was heard a year later, but judgment was reserved “and is still being awaited at this time,” according to the Court of Appeal judgment. It is still outstanding because the presiding judge, Raymond King, has since retired.

As such, the hearings must begin anew, Phillips ruled.

Heineken has been waiting for more than three years to acquire the shares, having expressed an interest in the holdings around the time of its takeover of D&G, which trades as Red Stripe Jamaica.

Dissenting in part with the latest judgment, Justice Paulette Williams said she was not convinced that another judge of concurrent jurisdiction should now review the decision of Justice Daye.

“I am satisfied that (Justice) Simmons exercised her discretion in a manner which was appropriate and therefore ought not to be disturbed,” she said.

But Justice Williams also said she was in general agreement with the observations and recommendations of Justice Phillips as to the way forward.

“In my view, however, the application for the final charging order ought to be heard and at that time Bardi can file its objections. I would strongly encourage all the parties to bring about a final disposal of the matter by pursuing that course,” Justice Williams said.

Attorney Vincent Chen, who represented McDonald Millingen, said he would make no comment on the case as it was still before the court.

Attorney Michael Hylton, QC, who represents Bardi, said the case with the McDonald Millingen law firm, which was remitted to the Supreme Court, has now been set for May 1.

mcpherse.thompson@gleanerjm.com