Charles Villeneuve and Kyoto Securities Limited v Joel Gaillard and G Holdings Limited (Bahamas)

A supplemental appellate judgment may correct a material factual error without reopening the substantive disposition where the omitted submissions do not affect the advice or order. In assessing monetary awards, the court must respect the pleaded relief: an award may be damages for breach rather than rescission or specific performance where transfer was not claimed. A respondent may support an award on alternative grounds without a formal cross-appeal. Damages must avoid duplication, reflect the fullest current evidence, and remain within any accepted cap.

The appeal was from the Court of Appeal of the Commonwealth of the Bahamas. The Board had delivered its judgment on 9 February 2011, but an administrative error meant that a memorandum submitted for the appellants after oral argument was not placed before it. The supplemental judgment reconsidered the final part of the earlier judgment, corrected the factual account of the parties’ submissions, and determined whether those submissions affected the characterisation and calculation of awards relating to FAC, FKI, VASCO, QRSM and Hypersecur shares. The central issue was whether the appropriate advice and order should be changed.

The Board corrected the statement that the appellants’ advisers had made no response after oral argument. It apologised for the administrative error, reconsidered the relevant part of its earlier judgment, and held that its advice to Her Majesty and the appropriate order should otherwise remain unaltered.

1. FAC. There was no pleaded counterclaim for transfer of the FAC shares. The sum of $2.5 million was therefore characterised as damages for breach of a contractual obligation to purchase the shares, rather than relief by way of rescission or specific performance.
2. FKI. There was likewise no pleaded counterclaim for transfer of the FKI shares. The award of $1,750,165 was damages for breach of duty and was not an award by way of rescission.
3. VASCO. Although there was duplication in the Court of Appeal’s awards, the respondents could, without a formal cross-appeal, rely on other grounds supporting the total award. The appellants could not rely on the 1999 compromise agreement because the Court of Appeal had rightly found a repudiatory breach. The Court of Appeal had, however, overlooked the final and fullest report dated 18 July 2005. The revised sum for VASCO was $3,405,330.
4. QRSM and Hypersecur. Duplication in the QRSM award did not reduce the recoverable total below the accepted cap because the latest loss was $1,199,172. The Hypersecur shares were worthless, and no pleaded counterclaim sought their transfer.

The revised figures totalled $8,854,667, exceeding the accepted cap by $452,400. The capped total award remained $8,402,267.

1. Privy Council: The supplemental judgment was delivered on 23 February 2011. The Board corrected the factual error, revised the figures, and left its advice and appropriate order unaltered.
2. Court of Appeal of the Commonwealth of the Bahamas: The lower court had made the awards considered by the Board, including the awards for FAC, FKI, VASCO, QRSM and Hypersecur. No citation for that judgment is stated in the judgment.
3. Earlier Privy Council judgment: The Board’s judgment delivered on 9 February 2011 was reconsidered in its final part, particularly paragraphs 88–98.