IN THE GRAND COURT OF THE CAYMAN ISLANDS

BETWEEN:

LAWRENCE BEVERLEY HEATH FIRST PLAINTIFF

WILLAUD CORPORATION SECOND PLAINTIFF

AND:

THE DUNDEE MERCHANT BANK FIRST DEFENDANT

SHARON LEXA LAMB SECOND DEFENDANT

WRIT OF SUMMONS

TO:

The Dundee Merchant Bank

The Waterfront Centre,28 North Church Street

P.O.Box 2506 G T,K Yl-1104

George Town,Grand Cayman

Cayman Islands

Sharon Lexa Lamb

Tht! Waterfront Centre,28 North Church Street

P 0. Box 2506 GT,KYH104

Georgt! Town,Grand Cayman

Cayman Islands

 

THIS WRIT OF SUMMONS has been Issued against you by the above-named Plaintiff in respect of the claim set out on the next page.

Within 14 days after the service of this Writ on you,counting the day of service,you must either satisfy the claim or return to the Court Office. P.O. Box 495, George Town, Grand Cayman KYl-1106, the accompanying Acknowledgement o f Service stating therein whether you intend to contest these proceedings.

THIS WRIT was issued by Samson & McGrath, Attorneys for the Plaintiff whose address for service is
P.O. Box 446 GT, George Town, Grand Cayman

 

STATEMENT OF CLAIM

THE PARTIES

1. The First Plaintiff, Lawrence Beverley Heath (“Mr. Heath”) is a retired Queen’s Counsel and business man. He is the ultimate beneficial owner of the shares and assets of the Second Plaintiff.

2. The Second Plaintiff, Willaud Corporation (“Willaud BVI” or “the Company”), is a company registered as a BVI Business Company (number 1066808}, limited by shares and with a registered office at Sea Meadow House,Road Town, Tortola, British Virgin Islands (“BVI”). At all materialtimes,Willaud BVI’s object was to act as an investment vehicle for Mr.Heath.

3. The First Defendant, The Dundee Merchant Bank (“TDMB”), is an exempted company. It was registered in the Cayman Islands on 15 February 1983 under number 12024. At all material times TDMB has held a Class B Bank and Trust licence (number 83028) and a Securities and Investment Business licence (number 25014). For a period of time, the commencement date being unknown to the Plaintiffs and the termination date being on or around February 2015, TOMB acted as a custodian for various assets belonging to the First and Second Plaintiffs.

4. The Second Defendant, Sharon Lexa Lamb (“Ms. Lamb”), is a Cayman Islands resident and status holder. At all material times Ms. Lamb was working in the financial services industry. From January 2003 Ms.Lamb was employed by the Dundee Group and, from no later than 15 February 2013 to 7 September 2015, Ms.Lamb was a director of Willaud BVI.

BACKGROUND

5. On various dates between 2007 and 2014 Mr. Heath transferred assets into the name of Willaud BVI for it to hold on his behalf. Such assets were transferred with the assistance of Mr. Heath’s Canadian based investment advisors and managers, namely Leon Fraser & Associates Inc. Investment Counsel (“Leon Frazer”) and later Northland Wealth Management (“Northland”).

6. On or around the date of the first transfer of assets into the name of Willaud BVI, Mr Heath and/or Willaud BVI entered into an agreement with TOMB. In exchange for a fee, TDMB agreed to act as custodian of the First and Second Plaintiffs assets, securities and investments.

7. Derek Buntain (“Mr. Buntain”), who was Chairman of TDMB at the material time was also one of the directors of Willaud BVI. The Register of Members shows that there were two other directors of Willaud BVI at this time, namely Evelyn J.Cann (“Ms. Cann”) and Helene Romaine (“Ms. Romaine”), neither of whom are known to Mr.Heath.

8. Longbar Nominees Limited (“Longbar”) (a company with a registered office at 129 Front Street, Hamilton, Bermuda), for which Mr.Buntain was President, acted as nominee shareholder of all one · hundred (100) Issued shares in Willaud BVI. Longbar held all such shares on trust for Mr. Heath.

9. It was a condition of the agreement to appoint TDMB as custodian that the Plaintiffs assets would be held
company registered In the Cayman Islands. It is the holder of both a Class “A” Banking & Trust Licence (number 77003) and a Securities and Investment Business licence (number 25015). Pursuant to this agreement, the assets of the Plaintiffs were transferred into the custody of TDMB and payment for TOMB’s services was made by the Plaintiffs.

10. It was understood by Mr.Heath that TDMB and Willaud BVI would liaise with each other and with Leon Frazer {and later Northland) about Mr.Heath’s assets but that all parties would ensure that Mr. Heath was kept fully Informed of proposed material changes to his portfolio and, indeed, seek his instructions on any such changes in advance. On or around 21st May 2013 Mr. Heath changed his Investment counsel from Leon Frazer to Northland.

11. The Register of Members for Willaud BVI states that on 15 February 2013 Ms. Lamb was appointed as a director of Willaud BVI. On the same date Ms. Romaine and Ms. Cann resignd

12. On or around October 2014 Northland notified Mr. Heath of TDMB’s intention to cease operations in the Cayman Islands and surrender its banking and securities licence.

13. Sometime after this notification, one or both of the Defendants entered into an agreement (on Mr.
Heath’s and Willaud BVI’s behalf) with a company named B & C Capital Ltd (“B & C”). Neither the precise date nor the particulars of the agreement are known to the Plaintiffs. On or around 12 February 2015, unknown to Mr.Heath, Ms. Lamb transferred some or all of Willaud BVI’s remaining assets into the custody of B&C.

14. B&C is a Cayman Islands ordinary resident company which was registered on 13th May 2008 (number
210496). B&C carries on business as an unregulated asset management, brokerage banking firm.

15. In the first half of 2015, Mr.Heath sought to locate the assets held on his behalf in the name of Willaud BVI. During the course of his inquiries, he uncovered the transfer of assets away from TDMB and Butterfield to B&C.

16. Following this discovery, Mr Heath has sought to trace and recover all of his assets which he had earlier transferred Into the name of Willaud BVI. The Defendants have failed to provide Mr.Heath with sufficient information for him to do so.

17. On 7 September 2015 Ms.lamb and Mr.Buntain resigned as directors of Wlllaud BVI. Kanika Green
(“Ms Green)of Corporate management Solutions (Cayman) Ltd, a Company Management Business Incorporated and licenced in the Cayman Islands,was appointed as sole directors in their place.

18. On 23 September 2015 the shares held on trust by Longbar were transferred into the name of Mr.
Heath and the Register of Members was amended accordingly.

FIRST CAUSE OF ACTION

(BOTH DEFENDANTS)

DUTY TO ACCOUNT

19. The Plaintiffs incorporate by reference the allegations contained in the above paragraphs.

20. In her capacity as a director and agent of Willaud BVI Ms. Lamb owed to the Plaintiffs the following fiduciary duties, inter olio:

a. A duty to act honestly, in good faith and in the best Interests of the Plaintiffs;
b. A duty to account to the Plaintiffs in respect of all transactions which she conducted or oversaw on their behalf.

21. In order to comply with this duty, Ms. Lamb was required to keep records sufficient to show and explain the company’s transactions and enable the financial position of the Company to be determined with reasonable accuracy.

22. The duty to account is a continuing one. It exists, and is fully enforceable, notwithstanding the termination of the agency/directorship.

23. In its capacity as the custodian of the assets of the Plaintiffs, TDMB also acted as a fiduciary and owed duties to the Plaintiffs accordingly. TDMB had, and continues to have, a duty to account to its principals for its stewardship of theri assets during the period of its appointment.

PARTICULARS OF BREACH

24. In correspondence dated 1October 2015 and 26 October 2015,the Plaintiffs asked Ms. Lamb to render an account of her dealings on their behalf.

25. In breach of her fiduciary duties, despite being given ample time and opportunity to comply with the
Plaintiffs requests, Ms.Lamb has failed to produce any, or any satisfactory, account.

26. On 26 October 2015, TDMB was asked to account for its custodianship of the Plaintiffs assets.

27. In breach of its fiduciary duty, TDMB has failed to respond to the Plaintiffs requests.

PARTICULARS OF LOSS

28. Without access to such accounts from their fiduciaries, the Plaintiffs cannot hold the Defendants to account for the management (or mismanagement) of their property.

29. By reason of the matters pleaded above the Plaintiffs have suffered loss and damage. The Plaintiffs are unable to particularise such losses in the absence of accounts.

30. The Plaintiffs further claim against the Defendants Interest (to be assessed) pursuant to section 34 of the Judiuture Law and /or the rules of equity on the sums claimed,or found to be owed,at such rate and for such period as to the court shall deem just.

SECOND CAUSE OF ACTION

(SECOND DEFENDANT ONLY)

DUTY TO RETURN PROPERTY AND PROVIDE ACCESS TO DOCUMENTS

31. The Plaintiffs incorporate by reference the allegations contained in the above paragraphs.

32. As a former director and agent of Wlllaud BVI, and a fiduciary of both Plaintiffs, Ms.lamb was, and is,under a duty to provide access to records which she has created, sent or received on behalf of her principals, namely the Plaintiffs

PARTICULARS OF BREACH

33. On 7 September 2015 Ms. Lamb and Mr.Buntain resigned as directors of Willaud BVI and Ms. Green was appointed in their stead. The outgoing directors provided Ms.Green with inadequate information about the Company and its affairs.

34. The Plaintiffs have made repeated requests of Ms. Lamb for information and for the return of Company documents (including a detailed written request on 1 October 2015).

35. Ms. Lamb has failed to return Company property in her possession or provide access to such documents. In doing so,she has acted in breach of her fiduciary duties.

PARTICULARS OF LOSS

36. Without access to the Plaintiffs property held by Ms. lamb (specifically the books, records, correspondence, contracts and financial statements pre-dating the newly appointed director) the Plaintiffs have sustained, and are continuing to sustain, losses since Ms.Green cannot effectively manage the day to day business of the Company.

37. By reason of the matters pleaded above the Plaintiffs have suffered loss and damage. The Plaintiffs are unable to particularize such losses in the absence of further information from the Defendants.

38. The Plaintiffs further claim against the Second Defendant Interest (to be assessed) pursuant to section 34 of the Judicature law and /or the rules of equity, on the sums claimed or found to be owed at such rate and for such period as to the court shall deem just.

END

IMAGE: heatherdouglaslaw.wordpress.com

EDITOR: In the first publication of this article iNews Cayman published a photograph of M/s Sharon Lexa Lamb with the insert “WANTED”. We apologise to M/s Lamb and it is our understanding there is NO official warrant issued anywhere that M/s Lamb is wanted in any jurisdiction. We again unreservedly apologise to M’s Lamb.