Claim No: CFI 23/2009
THE JUDICIAL AUTHORITY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF FIRST INSTANCE
BEFORE JUSTICE SIR JOHN CHADWICK
(1) Hussain Al-Awlaqi
(2) Andrew Clout
(3) Ziad Baya’a
Hearing: 20 May 2010
Counsel: Stephen York, Hogan Lovells (Middle East) LLP for Claimant
Kaashif Basit, JSA Law for First & Second Defendants
Imran Shafiq, Bin Shabib & Associates for Third Defendant
Judgment: 20 May 2010
2. The members of the Limited Partnership are Hussain Saleh Farid Al-Awlaqi, Andrew Tamplin Clout, Ziad Naim Baya’a and Khuram Hussain. I shall refer to them respectively as Mr Al-Awlaqi, Mr Clout, Mr Baya’a and Mr Hussain.
3. On 8 December 2009 Mr Clout and Mr Al-Awlaqi (together “the “petitioning members”) presented a petition seeking an order that the Limited Partnership be wound up. The petition was presented in response to a claim (Case CFI 023/2009) which had been issued by Mr Hussain on 17 September 2009 and to which the two petitioning members and Mr Baya’a were defendants. On 24 January 2010 I made an order that all proceedings in Case CFI 023/2009 be stayed with immediate effect, and I adjourned the petition for further hearing. I appointed Mr Shahab Haider, a registered insolvency practitioner and an official liquidator for the purposes of part 9 of the Insolvency Law, to be the provisional liquidator of the Limited Partnership with immediate effect, and I directed the provisional liquidator to prepare and file with the Court a report detailing, as far as he were able to do so, the current financial position of the Limited Partnership. The provisional liquidator’s report was filed on 12 May 2010. The petition is now back before me on the adjourned hearing.
4. The order of 24 January 2010 was made for the reasons which I gave in an oral judgment at the conclusion of a hearing on 13 and 14 January 2010. It will be convenient if I summarise those reasons in this judgment:
6. To explain why I took the view that there was a strong case that the Limited Partnership would have to be wound up unless the parties could come to an agreed arrangement for a buyout, I need to refer to the relevant provisions of the partnership agreement.
7 . The Limited Partnership was formed to carry on the business specified in clause 3 of the partnership agreement: that is to say, the business of providing consultancy services relating to the sourcing, structuring and introduction of Shariah-compliant financial products. Clause 3.1 provided that the business would be organised and administered under Shariah principles and guidelines and would be subject to the constant monitoring and review of the Shariah Board. Clause 7 provided for a Shariah Supervisory Board, to comprise not less than three eminent Islamic scholars, to be set up by the Limited Partnership. Clause 7.6 provided for the Shariah Board to approve the audited financial statements of the Limited Partnership: “with a view to confirming continuing compliance to the Shariah Guidelines.” The Shariah Guidelines were guidelines related to the Shariah-compliant management of the Limited Partnership and were to be established and approved by the Shariah Board.
8. Clause 8 of the partnership agreement provided for the establishment of a board of four directors; one to be appointed by each of the four members, or partners. There is nothing in the evidence to suggest that directors were ever appointed under that clause or that the board ever performed any functions.
9. Clause 8.7 provided that the business of the Limited Partnership should be managed by “the senior management”: a term which is not defined in the agreement. Notwithstanding clause 8.7, clause 8.8 provided that the day-to-day and operational management of the Limited Partnership should be entrusted to the senior executive officer (who was named as Mr Hussain) and the finance officer (who was named as Mr Baya’a). They together were defined as the “executive partners”. Clause 8.9 set out the matters that were within the scope of the authority delegated to the executive partners and which did not require the prior approval of the board or of a partners’ meeting.
10. Clause 9 provided for the proceedings of the partners, meaning Mr Al-Awlaqi, Mr Clout, Mr Baya’a and Mr Hussain. They were to meet no less frequently than four times a year, unless they decided otherwise. The quorum was to be two partners, provided that at least one of those two was Mr Hussain or his alternate, clause 9.3. All resolutions were to be passed by majority consent of the partners present and voting, providing that Mr Hussain, or his alternate, voted in favour of any resolution, clause 9.4.
11. Clause 10 (“partners voting rights”) was in these terms:
“The partners agree that to the extent permitted by law, for the purposes of calculating the quorum for partners’ meetings and for voting on any resolution of the partners, each of Mr Al-Awlaqi, Mr Clout and Mr Baya’a shall be deemed to have 50 percent voting rights and Mr Hussain shall be deemed to have 50 percent voting rights.”
12. The effect of those provisions was that if (as has occurred) Mr Hussain fell out with the other three partners the management of the Limited Partnership could not operate. Day-to-day and operational management required that Mr Hussain and Mr Baya’a act jointly. Directors were never appointed: and, even if had they been appointed, they would have had any executive power under clause 8. Partners meetings were deadlocked: in that Mr Hussain could not force through a resolution against the wishes of the other three partners (because he did not have more than 50 percent of the votes) and the other three partners could not force through a resolution against Mr Hussain’s wishes (either because they had only 50 percent of the votes — clause 10 — or because clause 9.4 required that Mr Hussain must vote in favour of the resolution).
13. Nor could the deadlock be broken by the addition or removal of partners. Clause 15 of the partnership agreement is in these terms:
“15.1. Incoming members may be appointed to become limited partners in TP LLP after discussion amongst the existing partners. In a case of disagreement a vote may be conducted, the result of which shall be determined by a simple majority vote in TP LLP.
15.2. Existing members may cease to exist as members provided they (a) become insolvent (b) become physically and/or mentally incapable of performing their duties and obligations (c) in case of their death and (d) in case of dissent among members, which may lead to a condition that the business of the partnership may not be conducted appropriately, that a special meeting of the partners be organised and a vote may be conducted with 60 percent votes necessary to remove the member.”
14. Put shortly, the effect of clause 9.4 is that Mr Al-Awlaqi, Mr Clout and Mr Baya’a, acting together, cannot force the admission of a new partner against the opposition of Mr Hussain; and Mr Hussain cannot force the admission of a new partner against the opposition of the other three. Further, as I held following the January hearing, Mr Hussain cannot be removed by the other three partners voting together under 15.2(d) without his consent: see both clause 9.4 and clause 10. The point was material at the January hearing because Mr Al-Awlaqi, Mr Clout and Mr Baya’a had sought to remove Mr Hussain as a partner by a resolution dated 7 September 2009. I held that resolution to be ineffective: that ruling is reflected in paragraph 7 of my order of 24 January 2010.
15. As I have said, it is common ground that the relationship between Mr Hussain and the other three partners in the Limited Partnership has broken down irretrievably. The allegation of irretrievable breakdown is made in the petition at paragraphs 22(i) and 25: it is accepted by Mr Hussain at paragraph 30 of his witness statement dated 27 December 2009 and at paragraph 5(2) of a skeleton argument prepared on his behalf for the January hearing.
16. There is, of course, a dispute as to who has been responsible for that breakdown. It seems to me that to attempt to resolve that dispute would be a sterile exercise. The exercise would lead to protracted and costly proceedings: the likely outcome of which would be a conclusion that there were shortcomings on both sides. But even if the fault were wholly that of the petitioning members (which is not a finding that I make), the Limited Partnership would remain deadlocked. The parties cannot be forced to co-operate if trust and confidence between them has broken down irretrievably. The only sensible approach is to recognise that, as indeed these parties do.
17. Absent agreement for a buyout, winding up is the only outcome. The Limited Partnership cannot be left to drift on in circumstances where there is no machinery for managing its affairs. The partners must have appreciated and contemplated that outcome when they entered into the agreement on the terms which it contains: for, as I have explained, those terms make it impossible to remove Mr Hussain if he falls out with the other three and make it impossible for Mr Hussain to remove any of the other three. It is the partnership agreement itself which produces a situation in which none of the constitutional organs of the Limited Partnership can operate. The parties must be taken to have contemplated and intended that if, Mr Hussain and the other three partners did fall out irretrievably, then — unless they could agree to a buy-out — there was no alternative to a winding up.
18. That was how the position appeared to me in January. As I have said, I did not then make a winding up order because I thought that the parties — and in particular Mr Hussain — should have the opportunity to explore the possibility of a buyout. That was only a real possibility if Mr Hussain were in a position to make an offer to purchase the interests of the other partners, on terms which it would be unreasonable for them to reject. If Mr Hussain were to make an offer which it was unreasonable for the other partners to reject, the petitioning members would not obtain a winding up order on the just and equitable grounds. So they would be faced with the choice of accepting the offer or being locked in to a moribund and inoperative partnership indefinitely. But on the other hand, if the offer were not one which it was unreasonable for the offerees to reject, then winding up would follow.
19. It was with the need for Mr Hussain to have the opportunity to explore the possibility of a buyout in mind that I directed the provisional liquidator to prepare and file a report as to the financial position of the Limited Partnership, insofar as he was able to do so. That report is now before the Court.
20. The provisional liquidator’s report identifies three entities through which the individual partners, or at least some of them from time-to-time, have carried on business since 2004. Those entities are Tabarak International Incorporated (“TII”), a company formed and registered in the British Virgin Islands on 18 June 2004; Tabarak Management Consultancy (“TMC”), a civil partnership between Mr Baya’a and Mr Hussain established in Dubai in October 2004; and the Limited Partnership established and registered in the DIFC on 12 July 2007. The Limited Partnership obtained DFSA regulatory status on 25 July 2007.
21. There is some dispute as to the identity of the shareholders in TII. It is accepted, I think, that Mr Hussain is a shareholder. The provisional liquidator thought that Mr Baya’a was another shareholder. I was informed, at one stage, by counsel on behalf of Mr Baya’a that he was not a shareholder in TII; but that assertion was subsequently modified. It was said by his counsel that Mr Baya’a had an interest in shares held in the name of his brother-in-law: the shares being in the brother-in-law’s name as security for a debt. There is also a claim that SinoGulf — a company with which Mr Al-Awlaqi and Mr Clout have some association — is a shareholder in TII. But as I say, the shareholding in the British Virgin Island company is a matter yet to be resolved.
22. At section 3 of his report, under the heading, “History of the Businesses” the provisional liquidator explains his understanding of the historic position:
“It is my understanding that the aim of these various entities was to carryout financial services business by providing Shariah advisory services for investment products and source and raise capital for these Shariah-compliant investment products. A significant part of the business was contracted through Tabarak International Inc. The records that I have seen indicate that most of the agreements with third parties are in the name of Tabarak International Inc.”
23. Appendix A shows that there were six contracts with TII for the provision of consultancy services. Two of those are of particular importance: one, a contract made on 18 June 2004 between TII and Tricon Trade Management Limited of Bermuda for investment, investment marketing and placement services: the second, a contract made on 31 August 2005 between TII and STIC Investments Incorporated, a company incorporated in the Republic of Korea, for the supply of services described as: “Sole Shariah advisor and sourcing and raising capital commitments”.
24. The provisional liquidator goes on to explain in his report that the agreements made with TII appear to have been serviced by TMC until the establishment of the Limited Partnership in 2007; and, thereafter, by the Limited Partnership. He points out that he has not seen any written agreement between TII on the one hand and TMC and/or the Limited Partnership on the other hand for the provision of services under the TII contracts or for the recharge of the fees and expenses dispensed.
25. After the incorporation of the LLP in July 2007 client agreements were made in the name of the LLP. There were a number of those; but they do not include contracts with Tricon or with STIC. Rather, the books and records of the Limited Partnership show that the most significant clients are those whose contracts are with TII. The provisional liquidator sets out a schedule of the income generated from contracts since 2007. The income generated from contracts made with TII is just over US$1.4 million: of which US$1.34 million is generated from the STIC contract made in August 2005 and US$41,000 is made with Tricon pursuant to the agreement dated 18 June 2004.
26. The provisional liquidator explains that, historically, most of the income from the contracts made by TII were recorded in the books of TMC and the Limited Partnership as income generated by these entities. There is no recognition, in the accounts of either of those entities, that the TII contracts are the source of significant income. But, in addition to the US$1.4 million income received from TII contracts since July 2007, there is some US$621,000 of income from contracts with the Limited Partnership itself.
27. The provisional liquidator points out, correctly, that a unresolved issue — which has a fundamental impact on the financial position of the Limited Partnership — is how the US$1.4 million, received from contracts entered into by clients with TII should be treated in the accounts of the Limited Partnership: should that US$1.4 million be treated as income of the Limited Partnership: or should it be treated as income for which the Limited Partnership is obliged to account to TII, subject (perhaps) to some fee payable by TII to the Limited partnership for the provision of the services under the contracts?
28. There is a further, and related, problem. Until it is known how the income from TII contracts should be treated in the accounts of the Limited Partnership, it is impossible to tell how the commission arrangements under the partnership agreement should operate. Those commission arrangements are set out in clause 12 of the partnership agreement of 12 July 2007.
29. Clause 12 is in these terms:
“The parties agree that to the extent that any partner procures business for the partnership any and all revenues derived from such business shall be distributed equally between that partner and the partnership. In the event that more than one partner procures a certain business for the partnership all and any revenues derived from such business shall be distributed as follows: 50 percent shall be distributed to the partnership and 50 percent shall be distributed between those partners equally.”
30. These are problems which have to be resolved before it is possible to know, first, what are the assets of the Limited Partnership and, second, what claims the present partners in the Limited Partnership have against the Limited Partnership in respect of commission on the US$1.4 million generated from the TII contracts (in addition to the claims that they have in relation to the income generated by post-2007 contracts entered into by the Limited Partnership itself).
31. These questions are not easy to resolve. The reason why they are not easy to resolve is that those who have carried on this business — and in particular Mr Hussain and Mr Baya’a (who seem to have been involved from the outset) have failed to record what arrangements (if any) were made between the various entities through which the business was carried on. In particular, they have failed to ensure either that the Limited Partnership obtained an assignment of the benefit of the TII contracts — which may or may not have required the consent of the clients, depending on the terms of those agreements — or that the Limited Partnership entered into new written contracts with the clients.
32. That failure may be of some importance in a regulatory context. If the Limited Partnership is providing regulated services within the DIFC it may be important to know whether it is doing so for its own (and, if so, on what terms)or whether it is doing so as agent for TII, a company who is not itself authorised to carry on regulatory business (and, if so, on what terms. Those matters may be of no concern to the individuals who have been carrying on this business; but they may well be of concern to the regulatory authorities. Those authorities may think it of importance to know the contractual basis upon which regulatory business is being carried on within the DIFC. Further, the provisional liquidator has pointed out in his report that, if the US$1.4 million is not treated as income of the Limited Partnership, then on the figures before him the Limited Partnership is insolvent. It cannot be satisfactory that a regulated body continues to trade when it may be insolvent.
33. The lack of the information necessary to resolve these questions is directly attributable to the way in which the parties — and particularly the executive partners — have chosen to carry on this business. I find it surprising that, the point having been identified in January, neither Mr Hussain nor Mr Baya’a seem to have made any attempt to clarify the position: either by obtaining an explanation from TII, or by producing written consents to an assignment from the former TII clients Tricon and STIC. But that is where we are; and, until those matters are resolved, it is impossible to take an informed view as to the financial position of the Limited Partnership or as to the claims the existing partners have against the Limited Partnership in respect of commission or otherwise. Without an informed view as to those matters the option of a sensible offer being made, or addressed, does not exist.
34. There are no audited accounts for any year since the end of 2007; even if there audited accounts for any earlier period since the establishment of the Limited partnership. As the provisional liquidator points out, article 28 of the DIFC Limited Liability Partnership Law requires that the members of a limited liability partnership shall cause accounts to be prepared in relation to each financial year. Those accounts are to be prepared in accordance with the prescribed accounting principles and standards; they are to be approved by the members; and are to be signed on their behalf by at least one of them. Further, within six months of the year end, the accounts are to be audited and filed with the registrar. Those requirements have not been met: they have not been met because the parties have not been in a position to agree what the accounts should show.
35. I was informed that accounts have been prepared and put before the Shariah Board. But the task of the Shariah Board (important as it is under the partnership agreement) is, as I have said, to satisfy themselves that the annual audited financial statements comply with the Shariah guidelines. The task of the Shariah Board is not, and cannot be, in substitution for the requirements of article 28 of the DIFC Limited Liability Partnership Law. The Shariah Board performs a different function.
36. The position disclosed by the provisional liquidator’s report is disturbing. The true financial position of the Limited Partnership cannot be established on the basis of agree or unchallengeable accounts. Further, there seems to have been regulatory default in failing to file audited accounts. Yet further, the Limited Partnership may be insolvent. Those latter matters are not for me to decide; but the need for the regulatory authorities to consider them is a matter of which I can take account in deciding whether to make a winding up order.
37. The hope that I entertained in January — that it might be possible, by a hearing in May of this year, to reach a position where a sensible offer could be made by Mr Hussain and considered and addressed by the petitioning members and perhaps Mr Baya’a — has not been realised. It has not been realised for the reasons set out in the provisional liquidator’s report. Underlying those reasons is the way in which these parties — and in particular, the executive partners — have chosen to carry on the business of the Limited Partnership for the past three years.
38. In those circumstances I am urged by counsel for Mr Hussain, first, to appoint another firm of accountants, Deloittes, to carry out an exercise — which they are confident they can do within 14 days — in order to establish the true financial position of the Limited Partnership. I find it difficult to share Deloitte’s confidence that they can do in 14 days what the provisional liquidator has not been able to do over some 4 months: my doubt is reinforced by the fact that the assurance was given at a time when Deloitte’s had not seen the provisional liquidator’s report. I cannot be satisfied that their confidence is based on a real understanding of the problems in the Limited Partnership liability company: it is unlikely that, when the assurance was given, Deloittes were seized of the difficulties that I have indicated. In particular, it is not clear, to me how Deloittes propose to obtain reliable information from TII, which (I am told) is now dormant and the ownership of which is in dispute. It seems to me that there is no real prospect that they would be able to do what Mr Haider has not been unable to do; even if, as they propose, they are appointed provisional liquidators in his place. In those circumstances, I reject that proposal.
39. The second step that I am urged to take is to adjourn this petition with a direction that at a hearing in June, specific issues be tried which will resolve the problems which I have identified. That trial, it is said, could be heard within a day. That seems to me unrealistic. In order to resolve these problems, it would be necessary to hear evidence -at least from Mr Baya’a and Mr Hussain — as to what has been going on; it would be necessary to have evidence on the question whether the clients of TII, Tricon and STIC, knew of, and agreed to, the performance of their contracts by the Limited Partnership; it would be necessary to decide what arrangements, if any, were actually made with TII to ensure that there was an assignment or transfer of its rights and obligations under the 2004 and 2005 contracts.
41. It seems to me, therefore, that not only would it be quite unrealistic to think that that sort of dispute could be determined in a short hearing in June — however the parties were prepared to co-operate for that purpose — but that it would be very unsatisfactory to do so because I should be being asked to decide the rights of a person, TII who was not before the Court; in circumstances where whatever decision the Court might reach would not bind TII. I decline to prolong this litigation by an exercise which seems to me to be misconceived.
42. Further, the exercise, even if were possible, would only have some purpose if there were a real need to preserve the Limited Partnership so that Mr Hussain could make an offer to buy out the interests of the other partners, which they could not refuse. But, despite the order which I made in January — which was intended to enable the business of the Limited Partnership to continue — it seems to have been impossible for Mr Hussain to reach terms for that to continue. I have seen a note of a meeting with the regulators which indicate that they are, not surprisingly, concerned about regulatory default and would not be minded to allow this business to continue until those defaults have been put right. Mr Hussain’s solution to that is, amongst other things, to pay the registration fee out of the assets of the partnership. That can hardly be satisfactory in circumstances where the provisional liquidator’s evidence suggests that the partnership may well be insolvent; and, further, where any payment that is made out of those assets is (at least potentially) made at the expense in part of the other partners who do not want the business to continue. Mr Hussain has not, it seems, been prepared to pay the registration fee out of his own money. If that is his attitude then it is difficult to see how there is any future for this business.
43. My strong view is that the background to this business needs investigation, both by a liquidator and perhaps by the regulators; although that is, of course, whether to investigate is a decision for them and not for me. It cannot be sensible to allow this business to limp on with all the problems that I have indicated.
44. For those reasons I propose to make an order that the Limited Partnership be wound up. I am satisfied that that is the just and equitable course in this case; given, amongst other things, the very obvious need for a proper and rigorous investigation as to what has gone on by a liquidator having powers for that purpose. That is the order that I shall made.
45. That leaves the proceedings in Case 023/2009 stayed. Subject to any submissions that Mr Hussain’s counsel wishes to make to me, it is my present view that the relief claimed in those proceedings are no longer needed for the future. Whatever claims Mr Hussain may have against the Limited Partnership — and he may well have claims, to expenses, remuneration and commission — can properly be made in the liquidation and rank with the other claims in that liquidation. So I would propose to dismiss those proceedings, but again subject to any representations that counsel may wish to make to me.
Justice Sir John Chadwick
Date of Issue: 14 June 2010
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