Monday 12 August 2024 | Press Release | martinkenney.com
Nissan Motor Company secures BVI High Court judgment against former CEO Carlos Ghosn
With the assistance of BVI law firm Martin Kenney & Co (MKS), Nissan has won a high-profile claim in the BVI High Court for recovery of a superyacht, as well as damages of US$32 million, against ex-Nissan CEO and Chairman Carlos Ghosn, his wife Carole Nahas Ghosn, and a BVI company Ms Ghosn controlled (styled Beauty Yachts).
Representing Nissan Motor Company (Nissan) and Nissan Middle East (NME), MKS had filed a substantive claim in the BVI for recovery of the superyacht Shachou (The Boss) – later styled The Twig – on the basis of evidence indicating that Mr Ghosn had acquired the vessel with US$32 million wrongly taken from Nissan.
High Court Judge Gerhard Wallbank found in favour of the Claimants, ordering that:
- Nissan has equitable title to the Yacht, which is held on constructive trust by Beauty Yachts for Nissan;
- That (i) Mr. Ghosn pay Nissan and NME US$ 32 million; and (ii) Beauty Yachts pay Nissan and NME US$13.665 million as money had and received (subject to a bar on double recovery);
- That the amount of a bribe paid be returned to Nissan, namely: (i) US$13.665 million against Beauty Yachts; and (ii) US$32 million against Mr. Ghosn personally (subject, again, to the bar against double recovery);
- Damages of US$32 million are to be paid by Mr. Ghosn and Beauty Yachts to NME;
- As against Mr. Ghosn, a declaration that the secret commissions or bribes received are held on constructive trust; and
- Declarations that Mr. Ghosn’s purported transfer of all 50,000 shares in Beauty Yachts to Ms. Ghosn was: (i) void and (ii) constituted a conveyance with an intention to defraud creditors.
The Defendants, Carlos Ghosn, Carole Nahas Ghosn and Beauty Yachts Pty Ltd, did not appear and were not represented at trial.
MKS instructed George Spalton KC of 4 New Square, who led Joshua Folkard of Twenty Essex.
MKS lead lawyer on this matter was Andrew Gilliland (Head of Litigation), supported by Malcolm Arthurs (Senior Barrister) and Andrew Blackburn (Consultant Solicitor).
In addition, MKS would like to express its gratitude for the assistance provided by ICC FraudNet colleagues, including Lezgin Polater, Guillaume Tattevin and Joanna Didisheim of Archipel, and Nada Abdelsater-Abusamra and Serena Ghanimeh of ASAS LAW in Lebanon.
Additional thanks as well to Barry Robinson of BDO, who acted as a testifying accounting expert on behalf of the claimants. It was a pleasure to work with such a robust and professional set of colleagues.
A copy of the judgment can be viewed here.
Background
In July 2019, MKS was instructed by Nissan to urgently investigate the status of a superyacht called Shachou (meaning The Boss) – later styled The Twig– on the basis of evidence indicating that former Nissan CEO and Chairman Carlos Ghosn had acquired the vessel with money wrongly taken from Nissan.
On behalf of Nissan, MKS swiftly moved the BVI Commercial Court for a freeze order against the registered title to the vessel, which subsequently froze the title to the yacht. Nissan then filed a US$32 million claim in the BVI for recovery of the yacht, as well as for damages against Mr Ghosn. The claim alleged that Ghosn dishonestly breached his fiduciary duties of loyalty and honesty owed to Nissan through his apparent misappropriation of funds held in Nissan’s CEO’s discretionary business development fund. In 2022, Nissan successfully resisted an application by Mr Ghosn to strike out the claims.
In October 2023 the defendants were debarred from defending the matter further for failure to comply with the Court’s various directions.
About Martin Kenney & Co (MKS)
Martin Kenney & Co (MKS) is a litigation practice based in the British Virgin Islands (BVI), specialising in global asset recovery cases.