CLA 2001/84
KHOLEIF -v- KHOLEIF

Judgment Given by His Honour the Acting Deemster Teare at
Douglas the 24th day of May 2001

This is, in form at any rate, an application by two third parties. Ossama Kholeif and Dr .Eleish for the discharge of a Mareva injunction granted by Deemster Kerruish on 17 April 2001, alternatively that the Plaintiff's cross undertaking in damages be secured.

In practice the advocates for the Plaintiff and the third parties were content that the Plaintiffs should seek to show why the injunction should be continued with no security for the Plaintiff's cross undertaking in damages.

I can deal with the several of the matters which must be shown in order to get a Mareva quite shortly because they were not challenged by Mr.O'Riordan for the third parties.

Firstly, the cause of action. The Plaintiff has commenced divorce proceedings in Texas. In those proceedings she claims a share of the parties community property and in addition she has claims for breach of fiduciary duty, fraud and conversion arising out of the Defendant's dealings with the community property. The evidence adduced before this Court paints a picture of the Defendant opening and managing many accounts in different places not only in his own name but also in the name of other members of his family including his deceased mother and his wife, without her consent or knowledge, and his brothers and sister. The Plaintiff says that the money controlled by the defendant in this way represented community property. Since under Texan law property possessed by either spouse during marriage is presumed to be community property unless shown to be separate property by clear and convincing evidence it seems to me that the Plaintiff has established a good arguable case not only that she is entitled to a share of the community property but also that the defendant has dealt with community property in breach of duty to her. The defendant has not yet appeared in these proceedings or in the Texan proceedings and so far as I am aware has not denied the claims of the wife .

Secondly, the risk of dissipation. The Mareva injunction was obtained here because accounts at the Bank of Scotland in Douglas in the name of the third parties, the brother and sister of the defendant, were found. Upon perusal of the bank's documents which were disclosed pursuant to an order under the Bankers Books Act the Plaintiff swore an affidavit to the effect that the signatures which purported to be those of the third parties were in fact written by the defendant.