Financial Services Commission v CLICO International Life Insurance Ltd

BARBADOS

IN THE SUPREME COURT OF JUDICATURE
HIGH COURT

CIVIL JURISDICTION

CV No. 0333 of 2011

IN THE MATTER of an Application by Financial Services Commission
for an Order that CLICO International Life Insurance Limited
be placed under Judicial Management;

AND IN THE MATTER of the Insurance Act, Cap. 310;

AND IN THE MATTER of the Companies Act, Cap. 308.

BETWEEN:

FINANCIAL SERVICES COMMISSION

PETITIONER

AND

CLICO INTERNATIONAL LIFE INSURANCE
LIMITED

RESPONDENT

Before: The Honourable Mr. Justice William J Chandler, Judge of the High Court.

Dates of Hearing: 2016 December 26th,
2017 January 16th, February 20th

Date of Decision: 2017 July 4th

Appearances:

Mr. M. Adrian King with Mrs. Cyralene Benskin-Murray and Ms. Deidre Marquez Padmore, Attorneys-at-Law for the Petitioner.

Mr. Ramon O. Alleyne with Ms. Sheena-Ann Ince of Messrs. Clarke, Gittens & Farmer, Attorneys-at-Law for the Judicial Manager.

Sir Richard L. Cheltenham QC with Ms. Shelly-Ann Seecharan Attorneys-at-Law for the ECCU and Grenada Ports Authority.

Ms. Jennifer C. Edwards QC, Solicitor General of Barbados with Ms. Donna Brathwaite QC, for the Ministry of Finance and Economic Affairs (the Ministry).

Mr. Elson Gaskin with Ms. Sadie Dixon Attorneys-at-Law for the Central Bank of Barbados.

Mr. Alair Shepherd QC, Attorney-at-Law in association with Ms. Sumaya Desai for the Barbados Investors & Policyholders Alliance Inc. (BIPA), interested parties.

DECISION

Brief Background

CLICO International Life Insurance Limited (CIL) is an insurance company registered under the provisions of the Insurance Act of Barbados, which was placed under judicial management by an Order of this Court on 14^th April 2011. Deloitte Consulting Limited (Deloitte) (acting through Mr. Patrick Toppin and Mr. Oliver Jordan) was appointed Judicial Manager (JM) to manage the affairs of the company pursuant to the terms of the order of Court and the provisions of the Insurance Act. Mr. Jordan resigned from Deloitte and Mr. Toppin continued to so act.
On the 22 December 2015, this court approved certain proposals with respect to the assets of CIL which were reduced into an order of court (the order of court) which included the transfer of part of CIL’s portfolio to the Applicant (New Life Investment Company Inc. and “a new Insurance Company”) in consideration of the injection of funds by the Government of Barbados into the Applicants pursuant to the order of Court to enable them to purchase that part of CIL’s portfolio set out in the order of court.

The Parties

The Applicants

The Applicants are the New Life Investment Company Inc. (NLICO) a company incorporated and registered under the Companies Act Cap. 308 of the Laws of Barbados, having its principal place of business at the Tom Adams Financial Centre, Church Village, Bridgetown and Resolution Life Assurance Company Ltd. (ResLife) a company incorporated and registered under the Companies Act Cap. 308 of the Laws of Barbados, having its principal place of business at the Tom Adams Financial Centre, Church Village, Bridgetown.

The Respondent

The Respondent is CIL previously described in the brief background to this application, acting herein by the Judicial Manager duly appointed by this court.

The Application

This decision concerns an application by NLICO and ResLife for an order under the inherent jurisdiction of the court, that the Applicants be granted permission to file evidence in the petition and to make representations at any hearing or continued hearing of the petition as Interested Parties or that the Court grant such standing to the Applicants as to permit them to be heard on the petition and to file evidence in the petition.
The grounds of the application are as follows:

On 22^nd December 2015, The Hon. Justice William Chandler, Judge of the High Court, made an order in this petition (the "Order"). The Order binds the Applicants. The Applicants are charged with the responsibility of implementing various provisions of the Order. The Applicants' interests are therefore directly affected by the Order and the implementation of the Order and/or the Applicants have an interest in the subject matter of the Order and the implementation of the Order.
The Applicants are not currently parties to the proceedings or otherwise represented before the Court.
The Order, at paragraph 3.iii, imposes a duty on ResLife to provide the Court with a specified document.
The Respondent's application filed herein on December 13, 2016 seeks orders that directly affect the Applicants.
The Applicants are concerned with the timely and effective implementation of the provisions of the Order. The Applicants desire to be heard on the implementation of the Order, and to the extent that the parties have liberty to apply to the Court for further directions, that the Applicants be also heard with respect to any further directions or any other matter which may arise and which may affect the Applicants' interest or the implementation of the provisions of the Order by the Applicants.
The Applicants' participation in the proceedings is essential to and/or would assist the Court in the implementation of the provisions of the Order and in respect of any further directions given or orders made in the proceedings.
Permitting the Applicants to file evidence in the proceedings and to make representations to the Court at any hearing of the petition as interested Parties would not cause any inconvenience or delay or expense or prejudice to the existing parties. Rather, it would enable and/or enhance the ability of the Court to deal with the implementation of the Order justly and expeditiously.

The Order of Court

The order of this court was made on the 22^nd of December 2015, which places on the Applicants the responsibility of implementing certain provisions of the Order. It provides, inter alia, as follows:

That the proposal characterised as "Option One" in the Affidavit of Ashley Bignall, Chief Accountant (Ag.) Ministry of Finance filed herein on the 4^th day of June 2015 be implemented subject to the provisions of paragraphs 3 and 4 herein.
Option One is limited to the policies, assets and liabilities of policyholders on the Barbados Register of CIL policyholders even though the total assets of CIL are collectively held for the benefit of the policyholders of CIL located in Barbados and the Eastern Caribbean territories of Saint Vincent and the Grenadines, Saint Lucia, Grenada, Dominica, Antigua and Barbuda, Anguilla, Montserrat, and the Federation of Saint Christopher and Nevis (the "Eastern Caribbean") as set out at the First Schedule hereto. Therefore subject to paragraphs 4 and 5 herein this Honourable Court makes no orders as to course of action which should be taken with respect to the proportionate value of CIL's assets, policies and liabilities to which the Eastern Caribbean policyholders are beneficially entitle
In furtherance of the Order set out at paragraph 1 herein it is ordered as follows:
NLICO is hereby recognised as the entity through which the
Government of Barbados will provide funding in the sum of
$52 million by way of loan received from the Central Bank of
Barbados to support the immediate liabilities of CIL up to the
31^st day of December 2015 and for certain operational costs of
NLICO;
ii. NLICO having already provided CIL with the sum of
$4,551,000.00 NLICO shall immediately transfer to CIL the
remaining portion of the sum of $10,458,000.00 for the
purpose of the financing the operating expenses of CIL for the
period 1^st July 2015 to 31^st December 2015;
iii. The JM shall on or before 29^th February, 2016 provide NLICO
with a report which itemises the particulars of the costs,
charges and expenses incurred and paid by the JM together
with a variance analysis which will explain any payments
which exceed the estimated operation expenses by a margin
of fifteen percent or more. On or before the 15^th day of January
2016 there shall be established a new insurance company
(hereinafter called "the new insurance company") the purpose
of which is to manage the policies and associated liabilities of
the policyholders listed on the Barbados register of CIL; the
Ministry and such company shall on or before the 31st day of
January 2016 notify CIL of the name and establishment of the
said insurance company and on or before the 31st day of
January 2016 provide CIL and this Honourable Court with
certified copies of the relevant approvals from the Financial
Services Commission ("FSC") which authorise the said
company to carry on insurance business in Barbados;
NLICO shall on or before the 1^st day of March 2016 issue
bonds to CIL in the value of approximately $34 million and
NLICO and the JM shall agree the real estate assets in Barbados to be transferred to NLICO by CIL; CIL shall on or
before the 1^st day of March 2016 transfer to NLICO the agreed
real estate assets provided that the value of such assets is
equivalent to the value of the said bonds;
The transfer from CIL to NLICO with respect to the real estate
assets referred to in paragraph 3(iv) above will be in
accordance with an agreement between CIL and NLICO which
will include provision to pro-rate any appreciation gains on the
real estate assets;
vi. Subject to the provisions of paragraph 3(v) NLICO is hereby
entitled to hold and manage the transferred real estate assets
in such manner as it deems fit;
vii. NLICO shall subject to agreement with regard to the amount of
funding required on or before the 31^st day of January 2016
provide further funding for the ongoing operations of CIL and
the new insurance company for 2016 and for such further
period as may be agreed;
viii. Subject to paragraph 3(x) and upon the issue of the bonds
pursuant to paragraphs 3(iv) upon receipt of confirmation of
the relevant approvals from the FSC and the provision of the
information set out in the Second Schedule herein the new
insurance company and CIL shall transfer the insurance
policies and associated liabilities as well as proportionate
share of CIL's other assets held by the policyholders listed in
the Barbados register of CIL to the new insurance company
on or before the 31^st day of March 2016;
ix. The Government of Barbados through the Ministry and/or NLICO will provide confirmation to CIL that it has issued the Demand Note in the sum of approximately $215 million for the
amount of any Statutory Fund shortfall, being the difference
between the aggregate value of the current assets, eligible
other assets and the bonds issued by NLICO and the actuarial
liability of CIL's traditional life and insurance business as it
relates to policies listed on the Barbados register of CIL in the favour of the new insurance company prior to the transfer of the insurance policies;
The Government of Barbados through the Ministry and/or
NLICO shall, pursuant to the Demand Note, pay monthly
interest at such rate sufficient to fund the expected monthly
shortfall for the new insurance company's operations, including
monthly distributions to individual Executive Flexible Premium
Annuity ("EFPA") policyholders listed on the Barbados register
of CIL;
xi. The individual EFPA policyholders referred to in paragraph
3(x) above shall have their principal claims converted to 10-
year fixed annuities at current interest rates at the time of
conversion with blended monthly payments. Should the
operating cash flow of the new insurance company be
insufficient after payment of claims, selling, general and
administrative expenses and other costs, the Government
shall guarantee the monthly blended payments of interest and
principal due on the restructured 10-year fixed annuities. The
principal amount of this guarantee is expected to be approximately $113 million;
xii. Corporate Governmental and/or Statutory boards EFPA policyholders listed on the Barbados register of CIL shall have
the principal value of their EFPA policies converted into
preference shares in NLICO and such preference shares shall
be held together with all associated rights and entitlements.

Notwithstanding paragraph 1 herein the Judicial Manager with the support of the Government of Barbados through NLICO is at liberty to pursue the proposal classified as "Option Two" or any part thereof in the Affidavit of Ashley Bignall provided that prior to pursuing Option Two the Government of Barbados and the JM receive written confirmation and agreement from the Governments of the Eastern Caribbean Currency Union as well as the requisite court approvals and/or and other statutorily required approval process which evidence that NLICO is permitted to hold and/or manage the real estate assets of CIL in Barbados to which the policyholders in the Eastern Caribbean are beneficially entitled, the value of such assets being estimated at $31 million dollars.

In the event that written approval is secured in accordance with paragraph 4 herein NLICO shall issue a further bond to CIL in the value of approximately $31million and CIL shall immediately transfer to NLICO the remaining real estate assets of CIL in Barbados.

The Applicants Submissions

The Applicants relied upon Oscar Maloney v The Commissioner of Police, Magisterial Appeal No. 6 of 2014 and The Inherent Jurisdiction of the Court, by I. H Jacob. 1970 Current Legal Problems to define the inherent jurisdiction of the Court. Counsel for the Applicant, Mr. Alrick Scott, submitted that such jurisdiction is typically invoked to fill in gaps left by rules of Court and that inherent jurisdiction begins where the usefulness of the rules end. The Applicants are not parties to the proceedings and are not represented before the Court. The Applicants desire to be heard in relation to the timely implementation of the Order, and in relation to any further directions that may be given to the parties, and any other matter which may arise, which has the ability to affect the Applicants.
Counsel referred to Rule 42.12 of the C.P.R. and submitted that the Court ought to have made an order for service of the order on NLICO promptly and on ResLife as soon as it was incorporated. In this case where the Applicants’ rights are directly affected, it is a fundamental rule of practice that they ought to be heard. The Court’s power to dispense with service of the order which affects the interest of a non-party is limited only where it appears to be impractical to serve the non-party.
The Applicants further submit that their participation would assist the court in the implementation of the provisions of the Order and in respect of any further orders or directions, which may be given in the proceedings.
Scott submitted that the lacuna in Part 42.12 is that it does not provide for cases such as this where the non-party agrees with the order and does not wish to “discharge, vary or add” to the order but is affected by its implementation. This is where the inherent jurisdiction of the Court is applicable and may be invoked to fill in the gap. The usefulness of the rule ends here and the inherent jurisdiction of the Court begins.
Counsel also submitted that judicial management involves the Court’s continuous supervision and is not the typical case where there is a winner and loser but involves the approval of a plan most advantageous to the policyholders. He therefore disagreed with the characterization by the J.M. of the order as final.
The Applicants submit also that their participation in the proceedings as Interested Parties will not cause inconvenience or delay or expense or prejudice the existing parties, but rather assist in the just expeditious implementation of the Order.
In summary, they therefore submit that their interests are directly affected by the Order and its implementation and that they have an interest in the subject matter of the Order and its implementation.

The Respondent’s Submissions

The Respondent’s written submissions were dated 19 January 2017. They may be briefly summarized as follows:

Judicial management is a purely statutory process and the Insurance Act Chapter 310 of the laws of Barbados sets out who can be heard and the time for hearing interested parties. There is no general right to intervention by third parties.
The process under section 62 of the Insurance Act took place in 2015 and the Court had already determined who were the persons or entities having a right to be heard.
NLICO was in existence whilst the process was ongoing and chose to give evidence through the office of the Solicitor General. It did not apply to be heard or to be recognized by the Court. There is no provision giving them a right to intervene in the proceedings at this stage. Section 60 is the only provision giving any person who appears to have an in interest in the proceedings a right of application to the Court and that section limits that right to applications to cancel the judicial management and to vest the management in the board of directors or other governing body and is irrelevant to the application.

Joinder

Counsel submitted that the Applicants failed to realise that there is a statutory framework governing the judicial management and which gives the court its jurisdiction. Part 62 of the CPR provides that it does not apply to the extent that any other rule makes a different provision in relation to the judgment or order in question.
Part 42 of the CPR is premised upon service of the order and, if no order for service is made, Part 42 cannot be invoked: (Tonge v Tonge AG 2012 HC 15).
Counsel also submitted that the there was no application at the time of the order for service and there was none now. This was not a failing by the Court but a deliberate and conscious act which corresponded to the application made to the Court by the Ministry of Finance. The Court recognized NLICO as the entity through which the Government was effecting the proposal and this was clear from the affidavit of Mr. Clennell Goodman.
Counsel submitted that the Court is not in any disadvantageous position in terms of receiving necessary information. If there is any matter which impacts on the Applicants ability to facilitate implementation of the order there is already an existing process used by the Chairman of the Applicants to bring such information to the attention of the Court.

Issues

The issues to be determined in this application are:

Whether the Court has the jurisdiction to permit the Applicants to enter the proceedings as Interested Parties?
Whether the discretion to exercise the inherent jurisdiction ought to be exercised in favour of the applicants?

The Law

Inherent Jurisdiction

The Applicants have brought their application under the inherent jurisdiction of the court. Simply put, this jurisdiction of the court is, to ensure that it can carry out its powers in a manner, which facilitates its functions and ensure that its authority is not obstructed or abused. According to Halsbury’s Laws of England Vol 37 (4^th ed) paragraph 12 “The jurisdiction of the court which is comprised within the term ‘inherent; is that which enables it to fulfill, properly and effectively, its role as a court of law. …The inherent jurisdiction of the court enables it to exercise control over the process by regulating its proceedings, by preventing the abuse of process and by compelling the observance of process… The inherent jurisdiction is necessary to ensure the observance of the due process of law, to do justice by the parties and to secure a fair trial between them.”
It is important to note as stated in Oscar Maloney v The Commissioner of Police, Magisterial Appeal No. 6 of 2014, paragraph 47 “…it is first necessary for the Court to have jurisdiction, whether given by statute or by rules of court, to deal with a particular matter, before it can draw on its inherent jurisdiction. We do not consider that a Court’s inherent jurisdiction can be relied upon to help to create a jurisdiction which does not exist.”

Discussion

Rule 42.12 of the Supreme Court (Civil Procedure) Rules 2008 (CPR) provides:

“Without limiting the rules as to the joinder of necessary parties. Where in any proceeding an order is made which may affect the rights of persons who are not parties to the action, the court may at any time direct that a copy of any judgment or order be served on any such person. (2) Service must be effected in accordance with Part 5 and the court may direct which party is to be responsible for service. (3) the copy of the order must be endorsed with a notice in Form 13. (4) The court may dispense with service of the copy of the order or judgment if it appears impracticable to serve the person. (5) Any person to be served, or on whom service is dispensed with, (a) is bound by the terms of the judgment or order, but (b) may apply within 28 days of being served, to discharge, vary or add to the judgment or order; and (c) may take part in any proceedings under the judgment or order (emphasis added).”

In this instance, the Applicants do not seek to discharge, vary or add to the judgment or order but simply to be heard as parties who are affected by the order. Both sides agree that there is no statutory provision entitling the Applicants to be heard and that any such jurisdiction would have to be founded in the inherent jurisdiction of the court.
This application must also be viewed in light of Section 62 of the Insurance Act Chapter 310 of the Laws of Barbados (the Insurance Act) which provides as follows:

“62. (1) The court shall on the hearing of an application made under section 60

(a) after hearing the Supervisor, the judicial manager and any other person who in the opinion of the court is entitled to be heard; and

(b) after considering the report of the judicial manager, make an order giving effect to the course whether similar or not to any of the courses mentioned in subsection (1) of section 61 that it

considers in the circumstances to be most advantageous to the interests of the policy-holders of the company.

(2) The order of the court shall be binding on all persons and shall have effect notwithstanding anything in the instruments constituting the company or in the articles of association or other rules of the company or in any contract.”

This court made the order pursuant to section 62 of the Insurance Act on the 22^nd of December 2015. At that time only one of the Applicants NLICO was in existence having been incorporated on 26 January 2015. ResLife was not a party to the proceedings since the Respondents were advised that there was simply a new insurance company which had not yet been formed. The order contemplates the establishment of a new insurance company. The affidavit of Mr. Clennell Goodman filed on behalf of ResLife, NLICO and the Ministry of Finance on 17 May 2017 was filed by the Solicitor General and deposes that ResLife was incorporated on 31 July 2015. Mr. Scott was already the Applicants’ counsel when this affidavit was filed.
NLICO was represented at the hearing by the Solicitor General so that NLICO was an interested party which the Court heard at the time of making the order. In this regard the absence of an order for service on NLICO is of no consequence since they knew of the order and had agreed to its terms.
ResLife is in a different situation. It was not represented at the hearing since the Court was informed and the parties proceeded upon the basis that it was not in existence at the time of making the order. In those circumstances, no order for service could be made upon a nonexistent body. The Court and the parties agreed that the new insurance company to be formed would play a significant part in the plan and there was no reason to doubt that the Government of Barbados, through the Ministry of Finance would follow through on the proposal which the Court accepted.
Having been formed and having instructed new counsel, is there any reason why NLICO and ResLife should not he heard on a matter which involved the injection of large sums of cash and the assumption of great liability on their part?
The answer is no. It is to them that a certain portfolio of CIL is being transferred and it is the Applicants who must provide the consideration for the transfer of the assets in those portfolios. They therefore have a direct financial interest in the proceedings. This observation is not made in relation to the issue of joinder since we recognize that the test is that set out by the Court of Appeal in Financial Services Commission, BIPA Inc. v British American Insurance Company (Barbados) Limited unreported decision in Claim No. 4 of 2012 (Court of Appeal) (BIPA).
The transfer agreement is a contract between the parties which they are asking this court to approve. Neither the court nor the Respondent can force the Applicants to accept any terms to which they may not be agreeable. The doctrine of freedom of contract so dictates. The fact that no order for service was made with respect to ResLife is no bar to the Court hearing it on this or any application. In fact it is in the interest of the Respondent for ResLife to appear and confirm its acceptance of the terms of the order.

Joinder

The submissions of counsel for the applicants are predicated upon the law under the Rules of the Supreme Court 1982 which have been repealed. I agree with the submissions of counsel for the Respondent in relation to the law on joinder as set out in BIPA, however counsel failed to take into account the observation by Burgess J.A. in BIPA that the categories of persons which the court could hear on a judicial management had not been conclusively determined. Burgess J.A. opined as follows:

“In my view, however, the case undeniably raises for the first time at least the narrow but important question of who, other than the Supervisor of Insurance and the company in question, may be parties in judicial management proceedings after the appointment of a judicial manager. The intended appeal affords an opportunity for the Court of Appeal to clarify the law on this matter.”

No such determination has been made by the Court of Appeal.

It is important to take a holistic view of the process before this court. Paragraph 4 of the order of court contemplated a future role for NLICO in the judicial management proceedings when it provided that:

“Notwithstanding paragraph 1 herein the Judicial Manager with the support of the Government of Barbados through NLICO is at liberty to pursue the proposal classified as "Option Two" or any part thereof…”.

No further role is contemplated for ResLife.

Conclusion

In the circumstances, there is no need to join ResLife as a party to the proceedings. It is unnecessary to make a ruling with respect to joinder where NLICO is concerned.

Subsequent Developments

Since the filing of this application, the Respondent has filed two applications. The first was filed on 30 January 2017 seeking:

an order approving the transfer agreement dated the 30^th day of December 2016. This was amended on 20^th February 2017 to seek the following:
A Declaration confirming that subject to the provisions of clause 9 of the Transfer Agreement the policyholder records be transferred from the Respondent to Resolution Life Assurance Company Limited under the Transfer Agreement and in furtherance of the transfer under paragraph 3 (viii) of the Order dated December 22, 2015 represent the conclusive policyholder records for the policyholders listed on the Barbados Register of the Respondent and that Resolution Life Assurance Company Limited shall not be liable to any policyholder by virtue of relying on the said records (emphasis added).
An Order amending paragraphs 3 (iv) and 3 (viii) of the Order of the Honourable Justice William Chandler, Judge of the High Court dated December 22, 2015 to provide as follows (emphasis added):

3(iv) NLICO shall on or before the 1st day of March 2016 issue bonds to CIL in the value of approximately $34 million and NLICO and the JM shall agree the real estate assets in Barbados to be transferred to NLICO by CIL; CIL shall on or before the 1st day of March 2016 transfer to NLICO the agreed real estate assets provided that the value of such assets is equivalent to the value of the said bonds.

3 (viii) Subject to paragraph 3 (x) and upon the issue of the bonds pursuant to paragraph 3 (iv) upon receipt of the relevant approvals from the FSC and the provision of the information set out in the Third Schedule herein the new insurance company and CIL shall transfer the insurance policies and associated liabilities as well as a proportionate share of CIL's other assets held by the policyholders listed in the Barbados register to the new insurance company on or before the 31st day of March 2016.

The second was filed 20 February 2017 for the following orders:

An order directing the transfer of the following assets to be placed in trust for the benefit of a Statutory Fund established by Resolution Life Assurance Company Limited (“Reslife") pursuant to the Insurance Act, Cap 310 of the Laws of Barbados:

Deposit certificates issued to the Respondent by Caribbean Money Market Brokers (Barbados) Ltd now First Citizens Investment Services (Barbados) Limited which total approximately $11,000,000.

Share certificate number 18103 issued to the Respondent
by Angostura Holdings Limited for 137,897 ordinary
shares.

An order permitting the release by Royal Bank of Canada
(Caribbean) ("RBCFC"} to the Respondent of the following assets
which are pledged to the Respondent's Statutory Fund:

Share Certificate No. 2 issued to the Respondent by CLICO Financial Complex Inc for 3,500,000 common shares.

Share Certificate No. 3 issued to the Respondent by CLICO Financial Complex Inc for 3,500,000 common shares.

Share Certificate No. 5 issued to the Respondent by Cotton Park Corporation for 250,000 common shares.

Share Certificate No. 2 issued to the Respondent by Southdowns Enterprises Inc for 4,050,000 common shares.

Debenture Mortgage from Todds Estates Limited to the
Respondent in the sum of $10,198,716.00.

Debenture Mortgage from CLICO Financial Complex Inc
to the Respondent in the sum of $5,364,442.

Debenture Mortgage from Southdowns Enterprises Inc to
the Respondent in the sum of $6,106,963.00.

Debenture Mortgage from Cotton Park Corporation to the
Respondent in the sum of $30,502.00.

Debenture Mortgage from OCILC Investments Inc to the
Respondent in the sum of $19,725,000.00.

Debenture Mortgage from Clico Holdings (Barbados) Limited to the Respondent in the sum of $12,800,000.

Debenture Mortgage from Rayside Company Limited to the Respondent in the sum of $51, 424,997.00.

An Order permitting the Respondent, RBCFC and the Petitioner to
take such steps as are necessary to dissolve the trust of the
Respondent's assets which was created pursuant to section 25 (4) of
the Insurance Act, Cap 310 of the Laws of Barbados;

An order directing the Petitioner to grant RBCFC permission to deal
with the assets of the Respondent which are held by RBCFC
pursuant to Deed of Appointment dated September 4, 2009 for the
purposes set out at a, b and c herein;

An order that the Costs of this application be costs in the cause.

The affidavit of the JM

In this affidavit filed 20 February 2017, the JM deposes, inter alia, that there was discussion between counsel for the Petitioner, the JM, the solicitor General, BIPA, the Central Bank of Barbados and counsel for NLICO and ResLife in order to settle the terms of the transfer agreement. The JM also deposed that the Ministry of Finance indicated that bonds issued by the Government must be capped at $34 million. The JM had also been informed by NLICO that it would not issue further bonds for the value of the real estate in excess of $34 million and that all excess real estate should be transferred to ResLife. He also deposed that it was necessary to amend the transfer agreement to facilitate transfer of real estate to ResLife.