OREXIM TRADING LTD V MAHAVIR PORT AND TERMINAL PRIVATE LTD AND OTHERS

[2017] EWHC 2663 (Comm), Queen's Bench Division, London Circuit Commercial Court, HHJ Waksman QC, 27 October 2017

Jurisdiction - Gateways - Good arguable case - Service out of the jurisdiction - Non-insolvency proceedings - Insolvency Act 1986, section 423

The claimant had sold a cargo of Ukrainian sunflower seed oil to A, who required Orexim to employ the defendant, MPT, as charterers. A sold the cargo on to G, in which company RL, a key person in MPT, was alleged to have an interest. G in turn sold it to Z. The cargo was discharged to Z at a port in Iran in spite of orders to the contrary from Orexim and there was evidence that RL had assisted that process with a view to Z's payment to G being used to pay A's debt to MPT. The vessel had been arrested by the Bombay High Court and a settlement agreement, which remained unfulfilled, entered into between Orexim, A and MPT regarding the purchase sum. Meanwhile, it appeared to Orexim that MPT was seeking to sell two vessels to the second and third defendants in transactions designed to prejudice claims against it, including Orexim's claim. Orexim claimed before the court (1) for damages for breach of the settlement agreement; (2) under section 423 of the Insolvency Act 1986 to set aside the transfer of the vessel and make it available to MPT's creditors; and (3) for a declaration that the transaction was a sham such that MPT retained legal and beneficial control of the vessel. This was MPT's challenge of (2) and (3).