Justice Roy Anderson last Thursday threw out a petition brought by attorney-at-law David Rowe, who was seeking permission from the Supreme Court to make traces to identify any overseas assets that investment scheme Cash Plus Ltd might have had.

Trustee in bankruptcy, Hugh Wildman, objected to the petition filed, arguing several preliminary points which were upheld by the judge.

Rowe, who practises at the Florida Bar, said in court documents that he represented himself and 21 creditors from overseas who had invested $1.1 billion in Cash Plus Ltd.

When Rowe filed the petition in November 2008, Andrew Gyles was the acting trustee in bankruptcy. Rowe wanted Gyles removed as trustee for Cash Plus Ltd because he claimed that the trustee did not have the resources or capacity to go abroad and find assets belonging to Cash Plus Ltd.

Strong belief

Rowe said he believed assets existed abroad. In Paragraph Six of his petition, Rowe said the basis on which the petition was made was that Gyles was "unable to access diligently, pursue and take action to recover the millions of dollars of creditors' investments in the company that can be traced around the world". He said he "strongly believe that the monies loaned to Cash Plus Ltd were transferred to its subsidiaries and affiliates outside the jurisdiction, for whatever reason, and were also used to purchase assets in foreign countries.

"In this regard, to adequately wind up the company and pay creditors, it is imperative that the monies and assets of Cash Plus Ltd outside the jurisdiction be traced and gathered for liquidation," the document stated.

Rowe said that for the assets to be traced, it required special expertise and resources which were not available or readily available to the trustee in bankruptcy/provisional liquidator.

Wildman, who was appointed trustee in bankruptcy this year, filed an affidavit resisting the petition. When the matter came before the Supreme Court last Thursday, Wildman argued that Rowe did not comply with Part 21 of the Civil Procedure Rules, which required him to obtain a special order from the court for permission to file a representative action on behalf of the 21 creditors.

Did not comply

He said Rowe's petition did not comply with Section 229 of the Companies Act, which required him to obtain leave to file an action against a company that was under the jurisdiction of the provisional liquidator.

The judge upheld the preliminary points.

Wildman submitted also that the petition lacked sufficient evidence to make a case for the judge to grant such an order. He said Rowe failed to identify particular assets abroad which the trustee in bankruptcy had not pursued. Wildman stressed that the petition was a fishing expedition.

Rowe was represented by Jamila Simms, instructed by the firm Brown, Haughton and Associates. Wildman told The Gleaner after the petition was dismissed that "we are looking to see if there are assets abroad to realise those assets".

Cash Plus Ltd and the Cash Plus Group are both in liquidation mode. It was reported in December 2007 that Cash Plus had a total of 40,000 investors with loans totalling $4 billion.

Cash Plus has been sued by several investors for millions of dollars. The suits are pending in the Supreme Court.

The trustee in bankruptcy, the de facto liquidator, has the power to wind up the companies and dispose of the assets so creditors and investors can be paid if funds are available.

barbara.gayle@gleanerjm.com