Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors 14 July 2014

(+44) 207 404 1400 London EC4A 2DYMerrill Corporation www.merrillcorp.com/mls 8th Floor 165 Fleet Street

1 (Pages 1 to 4)

Page 1

1 Monday, 14 July 2014

2 (11.00 am)

3 JUDGMENT HANDED DOWN

4 THE DEPUTY JUDGE: For the reasons given in the judgment,

5 which I now hand down, copies of which have just been

6 distributed to the parties, I will grant orders against

7 the second defendant in the terms set out in that

8 judgment and accept the undertakings given to the court

9 on the previous occasion, 1 July. However, I do expect

10 counsel to draw up for form of the order and the

11 undertakings and if in the course of so doing there are

12 minor alterations to be made in the forms of the

13 undertakings and orders, as I have understood them and

14 set them out in the judgment, I shall be perfectly happy

15 to accept such any changes agreed between parties and

16 set out in the draft order which I will expect to be

17 supplied to me quite shortly and I will hear counsel on

18 how quickly they can draft those terms of order and on

19 any matters arising from the judgment which I have

20 given.

21 Mr Brisby.

22 Submissions by MR BRISBY QC

23 MR BRISBY: May it please your Ladyship. Can I just deal

24 with representation. It's as last time save that today

25 Mr Brown is here on his own in place of Mr Brindle and

Page 2

1 he is instructed now by Messrs Berwin Leighton Paisner.

2 My Ladyship, there are two matters before the court.

3 Firstly, the final form of the order that your Ladyship

4 should make in the light of your Ladyship's judgment.

5 In relation to that, there are two competing versions

6 that my junior, Mr Cook, and Mr Maclean's junior,

7 Mr Caplan, have been working out. I don't know whether

8 your Ladyship will in due course be prepared to

9 adjudicate between the two minutes or whether you would

10 feel that further attempts should be made between the

11 parties to try and agree the order.

12 THE DEPUTY JUDGE: When was the first attempt made to try

13 and agree the order?

14 MR BRISBY: In the course of last week.

15 THE DEPUTY JUDGE: And how many times has it gone backwards

16 and forwards? I hear Mr Cook saying it has just come

17 back once and you should have another try. Of course I

18 am prepared to adjudicate on the final form of the order

19 but it doesn't seem to me that the best efforts of

20 junior counsel will yet have been extinguished.

21 MR BRISBY: Indeed, and neither Mr Maclean or myself have

22 had any input into that process so maybe time could

23 usefully be spent after this hearing concludes with

24 Mr Maclean and I --

25 THE DEPUTY JUDGE: Can I just ask about the representation

Page 3

1 today. Does the fact that Mr Brown is instructed by

2 Berwin Leighton Paisner mean that, to be absolutely

3 correct, the judgment which I have handed down should

4 refer to that or are you content that the fact that they

5 were instructed together by Mr McLaren at the hearing

6 should stay?

7 MR BROWN: My Lady, the factual position is that. We were

8 instructed at the hearing by Mr McLaren so we would be

9 content for the judgment to reflect that.

10 MR BRISBY: My Lady, the other matter that arises today is

11 a further injunctive -- application for injunctive

12 relief against Sherway and Mr Eliasch.

13 THE DEPUTY JUDGE: Well, actually, I was rather expecting

14 that you were going to tell me what was supposed to

15 happen about costs.

16 MR BRISBY: Well, I think the --

17 THE DEPUTY JUDGE: Presumably that's part of the --

18 MR BRISBY: -- one thing that is agreed between the parties

19 on the drafts is that -- if your Ladyship would just

20 give me a moment.

21 THE DEPUTY JUDGE: Costs should be in the application.

22 MR BRISBY: Costs of the hearing before your Ladyship, which

23 was an ex parte hearing, albeit notice should

24 effectively be costs in the cause.

25 THE DEPUTY JUDGE: Costs in the cause rather than costs in

Page 4

1 the application?

2 MR BRISBY: No, sorry. Costs in the cause meaning the

3 application.

4 THE DEPUTY JUDGE: Yes, okay. So that's all agreed anyway,

5 so I need not interfere with that.

6 MR BRISBY: And there is a slightly different agreement also

7 in relation to the service out application. The costs

8 of those are to be costs in the cause --

9 THE DEPUTY JUDGE: As long as it hasn't been forgotten

10 about.

11 MR BRISBY: No, my Lady. That's surprisingly one thing on

12 which there is agreement on both drafts.

13 THE DEPUTY JUDGE: Now --

14 MR BRISBY: My Lady, I was saying there is a further

15 application for injunctive relief against Sherway and

16 Mr Eliasch in a new action against them that was

17 commenced this morning and I don't know if Mr Maclean

18 and his team want to remain for that but --

19 THE DEPUTY JUDGE: Well, it's a public hearing, they can

20 come or go as they please.

21 MR BRISBY: My Lady, that new action --

22 THE DEPUTY JUDGE: If they want to go then I imagine there

23 might be quite a lot of noise and kerfuffle while they

24 all get up and go away so let me know if you want to go,

25 but you don't need my permission to go or stay.

Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors 14 July 2014

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2 (Pages 5 to 8)

Page 5

1 MR MACLEAN: My Lady, I don't wish to go. I do wish to

2 address your Ladyship on a number of matters concerning

3 a draft order.

4 THE DEPUTY JUDGE: I don't think I have seen it. And I

5 shouldn't see it if it's still going backwards and

6 forwards between the two. I gather it has only come

7 back once and I gather that leading counsel have not yet

8 had any input?

9 MR MACLEAN: I haven't discussed with Mr Brisby but I can

10 tell your Ladyship on the basis of the repeated drafts

11 it's unlikely that we're going to reach agreement on the

12 terms of that.

13 THE DEPUTY JUDGE: It may be that ultimately I am required

14 to adjudicate upon it but since it has only gone back

15 once and since Mr Brisby tells me that neither of you

16 two gentlemen have had any input I think you should --

17 MR MACLEAN: Well, I have certainly looked this morning and

18 over the weekend at what has been going back and forward

19 and I have submissions to make to your Ladyship on the

20 basis of that. Furthermore --

21 THE DEPUTY JUDGE: I haven't seen the draft.

22 MR MACLEAN: We can hand up a draft to your Ladyship.

23 THE DEPUTY JUDGE: Well, I have asked. I have asked the

24 parties to make an effort to agree the draft and I am

25 told that it's only come back from your side once. Are

Page 6

1 you saying that you refuse to engage in a process --

2 MR MACLEAN: I am not saying that I refuse to engage in the

3 process but if your Ladyship will give me a moment, I

4 might be able to explain why it is necessary for this to

5 be formulated and sorted out by your Ladyship as

6 a matter of urgency, because I am going to be making

7 a number of applications to your Ladyship consequent on

8 the judgment that your Ladyship has handed down and that

9 requires matters to be dealt with as a matter of urgency

10 and expediency and so, putting off the formulation of

11 your Ladyship's order in precise terms, with respect,

12 will simply not do in relation to the next steps which

13 we propose to take, with or without your Ladyship's

14 permission.

15 MR BRISBY: Can I suggest this as a way forward, having

16 heard my learned friend: I should make my application in

17 relation to the further injunctions. Your Ladyship

18 should adjourn for half an hour or three quarters of

19 an hour with the two minutes so you can see where the

20 battle lines are. My learned friend and I will attempt

21 to see if we can narrow the --

22 THE DEPUTY JUDGE: Well, I think, reading between the lines,

23 Mr Maclean is saying he wants permission to appeal, but

24 if I don't give it to him he wants to run off to the

25 Court of Appeal to get that permission from the Court of

Page 7

1 Appeal and therefore the formulation of the order can't

2 wait.

3 MR MACLEAN: I haven't said that in terms but that is what I

4 hinting your Ladyship at.

5 MR BRISBY: What is quite odd is his form of minute doesn't

6 have leave to appeal again so that's the one thing that

7 I am taken by surprise on. Your Ladyship, I mean --

8 THE DEPUTY JUDGE: Do. By all means, you will both need to

9 give me the draft order if I am to adjudicate upon it.

10 MR BRISBY: Indeed, my Lady.

11 THE DEPUTY JUDGE: Both versions.

12 MR BRISBY: I would suggest, if it's convenient to your

13 Ladyship, I should deal now with the application against

14 Mr Eliasch and Sherway. Your Ladyship should then rise

15 with the two minutes and your Ladyship's judgment and

16 look at them and I will then firstly find out what

17 further orders I know now about leave to appeal are

18 going to be sought and, secondly, we will see if we can

19 narrow agreement on some of the differences. My Lady,

20 having seen my learned friend's draft, I am certainly

21 prepared to move on a number of matters. It's just

22 unfortunate that there hasn't been time to do that so

23 far.

24 THE DEPUTY JUDGE: Well, that sounds encouraging.

25 MR MACLEAN: It sounds encouraging but, as your Ladyship

Page 8

1 appreciates, we're going to want to consider what to do

2 next. One of those matters is applying to your Ladyship

3 for permission to appeal. If your Ladyship is not

4 minded to grant that then we have other steps which are

5 open to us so we're keen for this not to drag on and I

6 have no idea how long my learned friend is proposing to

7 address the court in relation to this latest

8 application, but if it's going to take some time I

9 respectfully suggest that we ought to sort the order out

10 which is hanging over us from two weeks ago or

11 thereabouts and then he can move his application in

12 relation to the latest matter.

13 So I would suggest your Ladyship dealt with the

14 matters in those ways so that we, at least, as far as

15 the first defendant is concerned, knows where it stands

16 in relation to the order.

17 THE DEPUTY JUDGE: Well, there is certainly a lot to be said

18 for that but you haven't heard me make some preliminary

19 remarks to Mr Brisby about his new application yet.

20 MR MACLEAN: No.

21 THE DEPUTY JUDGE: If you could just bide your time.

22 MR MACLEAN: I will bide my time and bite my tongue.

23 THE DEPUTY JUDGE: Mr Brisby, when you make your opening

24 remarks, I would like you to begin by explaining to me,

25 because I haven't yet got it, why this application is

Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors 14 July 2014

(+44) 207 404 1400 London EC4A 2DYMerrill Corporation www.merrillcorp.com/mls 8th Floor 165 Fleet Street

3 (Pages 9 to 12)

Page 9

1 being made, effectively, without notice. I understand

2 that Mr Brown's team were notified of this application

3 last night.

4 MR BRISBY: Yes.

5 THE DEPUTY JUDGE: And I haven't really grasped why this

6 application is being made effectively without notice but

7 if one wants to forget about formal notice then I could

8 say on such short notice.

9 MR BRISBY: Indeed. I will --

10 THE DEPUTY JUDGE: I think that's the first thing I need you

11 to deal with before you deal with the meat of it.

12 MR BRISBY: Well, I was proposing to do that in my

13 introductory remarks because in a nutshell, in one

14 sentence, Mr Eliasch is now colluding with Mr Doronin in

15 the core Board meetings of the company, not on the five

16 days' notice with full agenda that is required by the

17 joint venture company shareholders agreement but in one

18 case, one hour five minutes' notice was given on Friday

19 evening late. Frankly fortuitous that someone was

20 around to pick that email up and to act accordingly.

21 THE DEPUTY JUDGE: It seems to me that I'm not I understand

22 and that might be because of the lack of depth of my own

23 reading and that (Inaudible). What is the agreement

24 between your client and Mr Eliasch as to the terms upon

25 which he sits on the Board? Is he your nominee or is he

Page 10

1 your appointee? To what extent is he entitled to make

2 up his own mind how he wishes to vote and how he wishes

3 to conduct himself on the Board and to what extent is he

4 obliged to follow the wishes of Peak, and is there

5 a written agreement governing his position on the Board

6 or is it oral; what is it? And, for example, you see,

7 what I'm driving at here is it seems to me that,

8 depending on what the arrangements actually are, if you

9 don't like what your nominee on the Board is doing, you

10 just get rid of him and you get another nominee who is

11 more to your taste and I don't really understand what

12 the relationship is.

13 MR BRISBY: Well --

14 THE DEPUTY JUDGE: That's what I need to know a bit more

15 about.

16 MR BRISBY: Your Ladyship will get answers to all those

17 things. But, just dealing with the most important

18 thing, which is the legal question that was wrapped up

19 in your Ladyship's observations, we are not at this

20 stage seeking to control how Mr Eliasch substantively

21 casts his votes at Board meetings. I do emphasise at

22 this stage it may come to that. At the moment we are

23 seeking very limited relief. Basically we are saying he

24 is not to consent to short notice without our consent or

25 the leave of the court. That preserves the position if

Page 11

1 there is something genuinely urgent that comes up.

2 Equally, he is not to consent to additional matters

3 being added at the last moment to the agenda of Board

4 meetings save, again, to preserve the position in case

5 there is something genuine without our written consent

6 or the leave of the court and, finally, we are seeking

7 an order that he passes on to us any information or

8 documentation that he receives as an A director of the

9 company. There's a complete asymmetry of information

10 here, for reasons that are explained in the evidence.

11 Mr Eliasch is party to the inner councils of the

12 company, receives documentation and information, plans

13 are hashed between Mr Doronin and him as to what the

14 Board should be doing and the first we ever hear about

15 anything is a Board meeting is convened and then, just

16 before that Board meeting, additional items are added to

17 the agenda, which are stated in very general terms. So,

18 we are not seeking to control his voting.

19 THE DEPUTY JUDGE: What is happening to Mr Tavakoli?

20 MR BRISBY: Mr Tavakoli is there as a nominee of

21 Carpentaria.

22 THE DEPUTY JUDGE: That's right. Is he being told about

23 what's going on at a Board level?

24 MR BRISBY: He is not, no.

25 THE DEPUTY JUDGE: He is not been told either.

Page 12

1 MR BRISBY: No. Carpentaria is effectively my client's

2 loyal nominee --

3 THE DEPUTY JUDGE: I understand. Well, I understand. You

4 split your representation between somebody who remains

5 loyal and somebody who you now say has turned out not to

6 be loyal.

7 MR BRISBY: Indeed.

8 THE DEPUTY JUDGE: Are you saying that Carpentaria are also

9 being excluded from Board discussions?

10 MR BRISBY: Yes, indeed. Your Ladyship should know that the

11 interlocutory relief is sought in the context of a new

12 action that was commenced this morning. That action

13 seeks inter alia declaratory relief that my clients,

14 PHRL, are entitled to rescind the various joint venture

15 and loan agreements they entered into with Sherway.

16 Pausing there, that's not the joint venture agreement we

17 have with Mr Doronin's company, TIL. Alternatively,

18 they seek declaratory relief that they are entitled to

19 accept what amount to repudiatory breaches of the

20 relevant agreements on the part of Sherway.

21 My Lady, the final nail in the coffin of the

22 relationship of my clients, on the one hand on the one

23 hand, and Sherway or Mr Eliasch on the other hand was

24 your Ladyship's draft judgment which was received in the

25 course of Wednesday --

Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors 14 July 2014

(+44) 207 404 1400 London EC4A 2DYMerrill Corporation www.merrillcorp.com/mls 8th Floor 165 Fleet Street

4 (Pages 13 to 16)

Page 13

1 THE DEPUTY JUDGE: So sorry.

2 MR BRISBY: Your Ladyship may recall a Board meeting had

3 been called for 3.00 pm on Friday, 11 July, as regards

4 the vexed question of whether Stewarts Law should be

5 instructed as solicitors on behalf of the company,

6 an issue on which your Ladyship was troubled after your

7 Ladyship rose the other day with further evidence on

8 both sides. Oddly that issue seems to be in the process

9 of going away because there has been a constructive

10 response late last night from Messrs Sidley Austin

11 suggesting some other firms of solicitors who might be

12 able to assist and we take that as a constructive sign

13 and there will be a response, no doubt, going in the

14 course of the day to that, but that is what that Board

15 meeting was about.

16 Some 24 hours before, in other words the day after

17 your Ladyship's judgment had come in, and the day before

18 the meeting was due to be held on the Stewarts Law

19 question, a very substantial number of additional items

20 were sought to be added to the agenda for the Board

21 meeting, the effect of which, if passed, would have been

22 to deprive Mr Zecha of any of the customary powers of

23 the CEO and hence to sidestep the order that your

24 Ladyship indicated you would be making in the draft

25 judgment.

Page 14

1 Now, just pausing there, if your Ladyship would take

2 up the new file 2.

3 THE DEPUTY JUDGE: Do I understand from that that it is the

4 position of those who are promoting such resolutions

5 that the company can survive for a short while without

6 any CEO; any active CEO?

7 MR BRISBY: Well, it must be because active is the right --

8 they accept of course as they must that Mr --

9 THE DEPUTY JUDGE: Doronin was not properly appointed.

10 MR BRISBY: They must accept that but they also accept,

11 subject of course to any appeal, they also accept that

12 Mr Zecha's back in (Inaudible) but why I use the word

13 side stepping your Ladyship orders, they propose to

14 adopt what they call corporate governance proposals

15 which are designed to ensure, quite literally, that

16 Mr Zecha cannot even order more drink or food to service

17 the company's restaurants and bars in the various hotels

18 it operates, because -- just by way of example, if your

19 Ladyship takes up the second volume.

20 THE DEPUTY JUDGE: The new file, is it?

21 MR BRISBY: Yes and goes to tab 3, which is the exhibit to

22 Mr Dunn's witness statement, at page 303, your Ladyship

23 sees an email sent from Mr Djanogly, who is a B

24 director. Does your Ladyship have it?

25 THE DEPUTY JUDGE: I do.

Page 15

1 MR BRISBY: Don't?

2 THE DEPUTY JUDGE: I do. Yes, I do.

3 MR BRISBY: Saying:

4 "I attach notice of additional items to be added to

5 the agenda for tomorrow's Board meeting."

6 Then:

7 "I also attach the consent in writing signed by an A

8 director and a B director."

9 The A director is of course Mr Eliasch and the

10 evidence establishes he is chased to sign that without

11 any consultation at all with his appointor. His

12 signatures are on page 338, if your Ladyship just looks

13 forward to that. And that follows earlier

14 correspondence your Ladyship may have picked up

15 reference to it in the witness statement of Mr Dunn

16 where Mr Eliasch refused to even discuss the question of

17 Stewarts Law and whether they should be appointed with

18 PHRL and Mr Amanat and if we look at page 3 of 4, where

19 we see some of the additional matters on the agenda, one

20 sees item 6 is discussion regarding the immediate

21 adoption of appropriate corporate governance guidelines

22 and steps to assure adherence to those guidelines.

23 Does your Ladyship see that?

24 THE DEPUTY JUDGE: I do.

25 MR BRISBY: And those guidelines begin at page 339. Quite

Page 16

1 a lot of it would, in ordinary circumstances, be

2 unexceptional but the sting in this particular document

3 is the last thing which has been added:

4 "Other matters requiring Board approval."

5 And there one sees the last bullet point is this:

6 "In addition to the Board reserve matters, the CEO

7 shall not undertake any decision in relation to the

8 following matters without prior approval of the Board,

9 and that is entering into any arrangement, contract or

10 transaction with any third parties, regardless of the

11 nature of the arrangement."

12 So, as I say, that would cover orders for food and

13 drink at the restaurants and bars of the 25 or so hotels

14 and resorts --

15 THE DEPUTY JUDGE: Does the CEO do that; does he order the

16 food and drink? Do you not have a sort of catering

17 manager or someone who orders the food and drink?

18 MR BRISBY: He would no doubt give directions.

19 THE DEPUTY JUDGE: Would he? I am surprised by that,

20 actually.

21 MR BRISBY: I would have thought so, I must say.

22 THE DEPUTY JUDGE: I am very surprised. If I were the CEO

23 of a 26 resort super-luxury hotel group I would expect

24 to have senior staff who would do that sort of thing.

25 They wouldn't need to talk to me about it --

Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors 14 July 2014

(+44) 207 404 1400 London EC4A 2DYMerrill Corporation www.merrillcorp.com/mls 8th Floor 165 Fleet Street

5 (Pages 17 to 20)

Page 17

1 MR BRISBY: It is an odd position, my Lady. The senior

2 staff are entitled to do something but the person who

3 they're answerable to isn't and if one looks down at

4 D --

5 THE DEPUTY JUDGE: When is this Board meeting now due to be

6 held?

7 MR BRISBY: It's due to be held on Friday.

8 MR BROWN: I think it's Monday, my Lady, 21 July. I just

9 wondered, my Lady --

10 THE DEPUTY JUDGE: Why is this application being made

11 without notice today?

12 MR BRISBY: Because of what happened on Friday night, when

13 a Board meeting was called on an hour and five minutes'

14 notice.

15 THE DEPUTY JUDGE: I apologise. When was it agreed to defer

16 the meeting until Monday? That's a better question.

17 MR BRISBY: It was agreed following that but can I just deal

18 with where I think your Ladyship is coming from.

19 THE DEPUTY JUDGE: Yes, it's the lack of notice. That's

20 where it's coming from.

21 MR BRISBY: When the first problem arose and the long list

22 of additional matters were added to the existing agenda

23 for the 3.00 pm Friday Board meeting, what then happened

24 was there was agreement that that Board meeting be

25 adjourned to Monday week. What then happened, at

Page 18

1 7 o'clock that night, they sought to call another Board

2 meeting, dealing with some of the items on that agenda,

3 including corporate governance on an hour and five

4 minutes' notice. Clearly the hope was we wouldn't even

5 know about it. Mr Eliasch would be ready to go and the

6 meeting would happen.

7 THE DEPUTY JUDGE: Yes.

8 MR BRISBY: Now that second attempt has failed because we

9 did find out about it.

10 THE DEPUTY JUDGE: Yes.

11 MR BRISBY: And it has been stood over to Monday, but there

12 is nothing to stop them and, going on past experience,

13 it seems a real risk to us that they will seek, if

14 they're not enjoined from doing so to call --

15 THE DEPUTY JUDGE: More meetings or add more material

16 without the proper notice.

17 MR BRISBY: Yes and call a Board meeting -- for all we know

18 they're calling a Board meeting now. We're all in court

19 today.

20 THE DEPUTY JUDGE: (To Mr Brown) I will -- believe me, I

21 will hear from you.

22 I want to know, though -- you have given me

23 a flavour of what you call in your skeleton argument the

24 shenanigans.

25 MR BRISBY: Yes, indeed.

Page 19

1 THE DEPUTY JUDGE: And you have given me a flavour of the

2 sort of material they wish to have, they say, discussed

3 at the next Board meeting. I do note that none of this

4 seems to be suggesting resolution except until one gets

5 to the other matters requiring a Board approval; the

6 rest of it seems to be discussion, discussion,

7 discussion, and obviously they have accepted now that

8 there should be notice given of those matters upon which

9 they do require resolution but, given that the

10 shareholders agreement puts in the hands of the A and B

11 directors the ability to agree matters to be placed

12 before the court --

13 MR BRISBY: The problem is any one A director --

14 THE DEPUTY JUDGE: Any one A director can do it.

15 MR BRISBY: Yes. That is the problem.

16 THE DEPUTY JUDGE: I understand. That is a problem and it's

17 a problem with the drafting of the agreement --

18 MR BRISBY: Yes.

19 THE DEPUTY JUDGE: -- that your clients have entered into

20 and it's something that you didn't foresee would lead to

21 problems when you appointed Mr Eliasch.

22 MR BRISBY: Yes, indeed.

23 THE DEPUTY JUDGE: So that takes me back to one of my

24 original questions, which I would like to know the

25 answer to, and I'd like to know it sooner rather than

Page 20

1 later because it's just sitting in my head as a problem

2 with everything else that you say. Why does Mr Eliasch

3 have to do what you tell him to do?

4 MR BRISBY: Because he is there to look after the interests

5 of --

6 THE DEPUTY JUDGE: Where do I see that?

7 MR BRISBY: Well, firstly --

8 THE DEPUTY JUDGE: Where do I see that?

9 MR BRISBY: You need to look --

10 THE DEPUTY JUDGE: We didn't look at the Sherway agreement.

11 MR BRISBY: Can we start with the shareholders agreement

12 between us and TIL?

13 THE DEPUTY JUDGE: Yes.

14 MR BRISBY: Because --

15 THE DEPUTY JUDGE: Just remind me where I find that page?

16 MR BRISBY: File 4 of the old files at page 8.

17 THE DEPUTY JUDGE: Yes.

18 MR BRISBY: That's the agreement dated 31 January 2014 and

19 that is an agreement between my clients, Tarek and the

20 joint venture company itself and under that your

21 Ladyship will recall we have the A shares.

22 THE DEPUTY JUDGE: Yes.

23 MR BRISBY: Tarek have the B shares and there are variation

24 provisions contained at clause 8 of the agreement

25 dealing with meetings of directors.

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6 (Pages 21 to 24)

Page 21

1 Firstly, jogging back to 6, your Ladyship will see

2 from 6.1B the A directors have a right to nominate half

3 the Board.

4 THE DEPUTY JUDGE: Yes.

5 MR BRISBY: Two A directors and two B directors. They will

6 consider expanding to three each. Then they can appoint

7 observers. C deals with removal of nominated directors.

8 Then meetings of directors are dealt with in 6.2.

9 Little C requires at least five business days' notice,

10 accompanied by an agenda specifying in reasonable detail

11 the matters to be raised at the meeting and copies of

12 any papers to be discussed and/or voted at the meeting.

13 Then there is a dispensation from that in D:

14 "A shorter period of notice for meeting of the Board

15 may be given if both an A director and a B director

16 agree in writing but the notice provisions under 62C1

17 and 2 will still apply."

18 That means you have to circulate papers and give as

19 much detail as possible.

20 Then there is E: matters not on the agenda or

21 business conducted in relation to those matters may not

22 be raised at a meeting with directors unless an aid rep

23 from the B director agree in writing.

24 F deals with quorum. It has to be at least one A

25 and one B. Quorum has to be present throughout the

Page 22

1 meeting. There is an absolute right under G to adjourn

2 provided a written request is received from an A

3 director and it's provided that no business may be

4 conducted in the meeting after such a request has been

5 made and then I is also important.

6 THE DEPUTY JUDGE: G is presumably your main safeguard

7 against further shenanigans.

8 MR BRISBY: Yes, but that implies that we at least get

9 notice of the -- that's not to say worrying about what

10 happens on Friday night.

11 THE DEPUTY JUDGE: Yes, but they have obviously seen the

12 error of their ways on that and given way. I mean, one

13 of your strongest points on the last occasion was that

14 the provisions of the JVC had simply not been followed.

15 Today, you're here telling me that their attempts to

16 call meetings at very short notice, which led to

17 correspondence, have resulted to the adjournment of the

18 meeting without the need to have recourse to the court.

19 It seems to me from that that it has been accepted that

20 the meeting they were calling was not in accordance with

21 the JVC and they're standing it over to a day when

22 sufficient notice has been given.

23 MR BRISBY: We infer that's the position. They haven't

24 agreed --

25 THE DEPUTY JUDGE: It doesn't matter. As long as it goes

Page 23

1 off to a proper time. It doesn't matter whether they

2 acknowledge their earlier sin or not.

3 MR BRISBY: Yes. My concern is they could do it at

4 3 o'clock in the morning.

5 THE DEPUTY JUDGE: Well, I understand that.

6 MR BRISBY: And that's the real concern. The important

7 point here, I am just going to take your Ladyship --

8 THE DEPUTY JUDGE: If they haven't given notice and they

9 purport to do something at 3 o'clock in the morning I

10 expect you would then be able to come to court without

11 notice to complain about that.

12 MR BRISBY: But it may be too late by then, because if the

13 meeting has taken place -- that's my concern.

14 THE DEPUTY JUDGE: But it may not be a proper resolution of

15 the Board.

16 MR BRISBY: Well, I think it would be under this agreement

17 because Mr Eliasch and a director would have consented

18 to short notice. There would be a quorum provision.

19 There would be a quorum present. That's the concern.

20 THE DEPUTY JUDGE: Okay, I understand that. Anyway, please

21 carry on because you're going to show me the provision

22 which requires the director --

23 MR BRISBY: I am going to take you next to the Sherway

24 agreement.

25 THE DEPUTY JUDGE: Yes.

Page 24

1 MR BRISBY: But just in relation to this, the point is this

2 agreement postulates we can create a deadlock if we

3 think appropriate because if you look -- at any rate at

4 Board level, at I there is an important provision.

5 THE DEPUTY JUDGE: Yes.

6 MR BRISBY: "At a meeting each director has one vote

7 provided that ...(Reading to the words)... Have two

8 votes."

9 So if someone has a car crash on the way to a Board

10 meeting and just fails to turn up, it doesn't mean that

11 either site gets a -- is in a position to outvote the

12 other side, even though there is a quorum because one A

13 director has turned up. Does your Ladyship see that?

14 THE DEPUTY JUDGE: Well, I do but, equally, based on your

15 concerns, if they don't give proper notice and

16 Mr Tavakoli doesn't turn up, or Carpentaria don't turn

17 up, acting by Mr Tavakoli, then Mr Eliasch could say he

18 has two votes.

19 MR BRISBY: Ah, But there is a quorum and he won't be there

20 to cast it. I mean, Mr Eliasch would have two votes.

21 THE DEPUTY JUDGE: Yes. Is that right? What's the quorum

22 provision again?

23 MR BRISBY: One A director and one B director. So indeed,

24 if Mr --

25 THE DEPUTY JUDGE: Yes, I can see that you have worries

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Page 25

1 about further shenanigans but that doesn't help me with

2 the question.

3 MR BRISBY: No. This is the background to your Ladyship's

4 question. We then need to look at the Sherway

5 documentation.

6 THE DEPUTY JUDGE: Yes.

7 MR BRISBY: And in particular at the PRHL Holdings

8 shareholders agreement, which your Ladyship will find

9 beginning at page 179.

10 THE DEPUTY JUDGE: 179 is a letter from (Inaudible).

11 MR BRISBY: This is still in file 4 of the old --

12 THE DEPUTY JUDGE: I am sorry. Now, nobody referred,

13 really, to this agreement on the last occasion.

14 MR BRISBY: No. That may -- your Ladyship's recollection

15 may be correct.

16 THE DEPUTY JUDGE: Okay. I have it.

17 MR BRISBY: And clause 3 of this deals with completion.

18 It's a common ground that completion hasn't taken place

19 and then at "Completion as otherwise provided, Peak and

20 the joint venture companies..."

21 Now here, confusingly, the joint venture company

22 doesn't mean our joint venture company, the one

23 between --

24 THE DEPUTY JUDGE: I know.

25 MR BRISBY: -- my clients and Mr Maclean's clients. Rather

Page 26

1 it means the new company, PRHL Holdings.

2 THE DEPUTY JUDGE: Yes, that's going to be inserted.

3 MR BRISBY: Exactly.

4 THE DEPUTY JUDGE: I know.

5 MR BRISBY: "It's going to procure the Sherway Board

6 resolutions of the JVC ...(Reading to the words)... as

7 Amanat as Chairman of the Board."

8 That's all in relation to the JVC.

9 THE DEPUTY JUDGE: Yes.

10 MR BRISBY: Then B is important:

11 "Procure that such steps are taken ...(Reading to

12 the words)... JVC PRHRG."

13 That is what we have hither to called the joint

14 venture company. That's the company in which PHRL and

15 Tarek are partners and then, going down the chain:

16 "ARGL Silverlink and ARDL, once ARDL has been

17 incorporated, as may be necessary with effect from the

18 date hereof or as soon as reasonably practical

19 thereafter to appoint Johan Eliasch as a director

20 nominated by the JVC [that means by the new holding

21 company] pursuant to all of the Boards in respect of

22 which the joint venture company has the right to appoint

23 two directors pursuant to..."

24 That's the other shareholders agreement. That's the

25 one we looked at a moment ago.

Page 27

1 THE DEPUTY JUDGE: Yes.

2 MR BRISBY: "Including without limitation the PHRG Board."

3 And then the others are also mentioned.

4 "And that Johan Eliasch receives compensation and

5 indemnification arrangements and an equivalent level to

6 those which were granted to the other Board members of

7 PHRG."

8 Then there is a proviso, which says:

9 "If for reasons beyond our control we can't put

10 Mr Eliasch on to the Board at completion and completion

11 hasn't happened yet ...(Reading to the words)... one of

12 the directors again to the Board."

13 Little 1, obviously this doesn't apply because he

14 is --

15 THE DEPUTY JUDGE: Yes.

16 MR BRISBY: -- on the Board in a sense in advance of his

17 obligation to do so but --

18 THE DEPUTY JUDGE: What we need to look at is what is the

19 basis upon which your clients -- you appointed him to

20 the Board prior to completion.

21 MR BRISBY: Yes.

22 THE DEPUTY JUDGE: You're going to take me there next.

23 MR BRISBY: Yes. Can I just finish with the agreement?

24 THE DEPUTY JUDGE: Okay.

25 MR BRISBY: I was just saying in relation to B1, what is

Page 28

1 interesting here is catering obviously for the situation

2 where Mr Eliasch isn't on the Board.

3 THE DEPUTY JUDGE: Yes.

4 MR BRISBY: It spells out what would be implied if it wasn't

5 spelt out, that because this is a joint venture

6 agreement they have to act in concert and that my client

7 can't vote without Mr Eliasch's consent any more, we

8 would say, than he can vote without our consent.

9 THE DEPUTY JUDGE: Well, I'm not sure. I hear what you say

10 but I'm not sure that it does follow.

11 MR BRISBY: I am asked to read 3.9:

12 "For the avoidance of doubt, it is said 3.3 and

13 clause 6 shall apply from the date ...(Reading to the

14 words)... Sherway will not become a shareholder of the

15 JVC and completion."

16 I don't, for my own part, really understand what

17 that adds to what has gone before because if you look at

18 3B, the proviso only applies if it's not possible to

19 appoint Mr Eliasch to Board positions at completion.

20 But, leaving that oddity to one side, we need to look at

21 4.2A:

22 "Each shareholder shall use reasonable endeavours

23 ...(Reading to the words)... PHRG business.

24 So we say that means that one thing Mr Eliasch is

25 not entitled to do is to help Mr Doronin procure

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Page 29

1 breaches of the PHRG shareholders agreement. So that's2 a very important point and your Ladyship has that,3 because 4.2A has to be read with 4.1A.4 Then 4.2B is also relevant:5 "Each shareholder agrees to exercise its respective6 rights on disagreement so as to ensure that the business7 of the JVC consists exclusively of the business and the8 business should be conducted on commercial principles9 with a view to optimising overall returns in accordance

10 with the terms of this agreement."11 So, just pausing there, one wonders how Mr Eliasch12 could ever properly have exercised his vote in favour of13 the 150 million capital call that we talked about last14 time at a figure of 1 cent per share which would have15 led if not taken up to enormous dilution.16 Finally, C:17 "Each shareholder shall procure that the directors18 appointed by it shall act in good faith in discharging19 their duties as directors of the JVC as well as PHRG and20 the other companies."21 So, again, we say that is the basis of our legal22 right to say that Mr Eliasch insofar as he is procuring23 breaches of the other shareholders agreement with Tarek24 and/or exercising his votes as a director of the PHRG25 joint venture company otherwise that in good faith and

Page 30

1 in the interests of that company but rather pursuant to

2 and at the direction of Mr Doronin we say he's acting in

3 breach of what is contemplated under this duty, under

4 this agreement.

5 That's the agreement but, in addition, we plead in

6 our claim what we call an agreement -- the agreement.

7 And the agreement is an overarching agreement we plead

8 to which Mr Eliasch himself is a party as opposed to

9 merely Sherway.

10 THE DEPUTY JUDGE: This is paragraph 36, is it, of your new

11 particulars of claim?

12 MR BRISBY: Sorry?

13 THE DEPUTY JUDGE: Is this paragraph 36 of your new

14 particulars of claim?

15 MR BRISBY: I think it is. If your Ladyship will give me

16 a moment. Yes.

17 THE DEPUTY JUDGE: Presumably 36.21 isn't in contention but

18 the rest is?

19 MR BRISBY: Yes, but that's all based on what we say are the

20 representations, so you have to read them too because

21 specific representations were made about supporting

22 PHL's rights under -- in connection with the joint

23 venture with Tarek and if your Ladyship can cast an eye

24 over paragraphs 22 to 32, the representations are set

25 out.

Page 31

1 THE DEPUTY JUDGE: Right, it's now nearly 12 o'clock so let

2 me tell you where my mind is going on this. You said

3 this entire application would take between an hour and

4 an hour and a half. I haven't yet heard from Mr Brown

5 and we need to save some time to hear from Mr Brown.

6 I am still of the view that I don't see why this

7 application is being made today without notice though I

8 understand why you wanted it. Until you knew that this

9 Board meeting was being stood over until the 21st, I can

10 see why you felt the need to make an application without

11 notice. I see your continuing concern about future

12 shenanigans and, therefore, looking at your application

13 notice I can see your continuing concern to have either

14 an undertake over the hearing of your injunction

15 application or an order protecting you from the matters

16 set out at paragraph 5.1.

17 MR BRISBY: Yes.

18 THE DEPUTY JUDGE: And, indeed, 5.2, if there is any threat

19 of that. But, as for the rest, I am not at all

20 convinced that the matters based upon which you tell me

21 that Mr Eliasch has to act either with the benefit of

22 your instructions, so your agreement, however high you

23 put it, is so clear that I should make any order at all

24 without notice in circumstances where I'm not at all

25 satisfied that notice shouldn't have to have been given.

Page 32

1 MR BRISBY: No, my Lady, I am not seeking anything more

2 than --

3 THE DEPUTY JUDGE: You are, 5.3, the communication of

4 documents and information received in his capacity as

5 a director for consultation. 5.3 is all to do with the

6 extent to which he is his own man on the Board or

7 your --

8 MR BRISBY: My Lady, I do understand that.

9 THE DEPUTY JUDGE: Normally directors don't have to show

10 shareholders Board papers. Normally they don't have to

11 consult with shareholders before making decisions so, as

12 far as -- before I hear Mr Brown I shall just say now

13 that I don't think 5.3 is at all appropriate for

14 a without notice application on the material that you

15 have shown me, in saying the relationship between --

16 MR BRISBY: My Lady, having heard your Ladyship I am not

17 going to press that.

18 THE DEPUTY JUDGE: Thank you.

19 MR BRISBY: If I can put a brief shot across --

20 THE DEPUTY JUDGE: Can you not take up more time putting

21 shots across. If you want to put a shot across their

22 bounds you can write them a letter because I really do

23 need I think to spend some time hearing from Mr Brown

24 now.

25 MR BRISBY: So be it, my Lady, I'm not going to press that.

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Page 33

1 The only thing I am going to say, if we don't get

2 information it is inevitable we will seek to adjourn

3 Board meetings further, but that's not a matter --

4 THE DEPUTY JUDGE: That's not a matter. That's a matter of

5 cooperation. It's not a matter which -- I cannot see,

6 based on the materials you have shown me that Mr Eliasch

7 is bound, contractually bound, to give you Board

8 materials at the moment.

9 MR BRISBY: My Lady, as I said --

10 THE DEPUTY JUDGE: Now, what is extraordinary, but it

11 doesn't seem to be part of your relief, is if there are

12 Board materials which are not being shown to Carpentaria

13 you might have had better luck, I think, even on

14 an ex parte basis, in saying that all Board materials

15 should be shown to all four directors, not just three of

16 them. But that doesn't seem to be the nature of your

17 application today.

18 MR BRISBY: It's true, I should have said Carpentaria rather

19 than -- the complaint --

20 THE DEPUTY JUDGE: I will fire a shot across anybody's

21 bounds on that. If there are materials going to the

22 Board they must be shown to all directors. That seems

23 to me to be blindingly obvious.

24 Anyway, Mr Brown, I am going to hear from you.

25

Page 34

1 Submissions by MR BROWN

2 MR BROWN: My Lady, thank you.

3 THE DEPUTY JUDGE: Now, Mr Brown, I am not convinced that

4 this application should be heard without notice. You

5 got notice last night -- that's effectively today --

6 there is a Board meeting on Monday. It may be that it

7 is necessary to abridge notice slightly but we can talk

8 about timetabling later because I would suggest that

9 this application should be heard no later than Thursday,

10 for example. But I will hear from you on that.

11 Secondly, I have already said to Mr Brisby, and I

12 will say again to you, I do not consider that any of

13 Mr Brisby's relief under 5.3 of his application notice

14 is suitable to be granted today in advance of that full

15 inter partes hearing, but I would like to hear from you

16 on the extent to which you're willing to accommodate

17 Mr Brisby's fears, which are not baseless fears, that

18 there might be further attempts to call further Board

19 meetings or add further material which isn't truly

20 urgent to the present agenda for next Monday without

21 proper communication with all members of the Board and

22 the protection of 5.1 or 5.2. That's what I would like

23 you to focus on.

24 MR BROWN: Thank you, my Lady. The first point to address I

25 think is the factual chronology Mr Brisby has provided

Page 35

1 in relation to these Boards meetings that were cancelled

2 on last Friday and those have been the subject of

3 correspondence between Sidley Austin, who are my learned

4 friend's instructing solicitors, and Candey, who are

5 Mr Brisby's solicitors. I don't think it's correct to

6 say that these Board meetings were called as an ambush

7 and they had no knowledge of the emergency meeting that

8 was proposed for Friday evening. There was a meeting

9 called at short notice and Mr Brisby has taken you to

10 the provisions of the JVC shareholders agreement which

11 permits that to happen.

12 After your Ladyship handed down -- sorry, handed us

13 her draft judgment and it was thought that there were

14 a number of matters that need to be considered as

15 a result of that judgment, that were of an urgent

16 nature. Items were added to the agenda but, as it

17 happens, Mr Brisby's clients adjourned that meeting.

18 The defendants, through Sidley, then asked for

19 an emergency meeting at 8.00 pm that evening and that

20 was also declined and a meeting has been arranged for

21 the 21st, which is next week, so for Mr Brisby to say

22 there's a risk that we might suddenly call another

23 meeting without telling them and pass resolutions I

24 think, is not -- it's not risk that's based on what

25 happened last Friday although I understand why he might

Page 36

1 apprehend something of that nature.2 In relation to that, when we received the pleadings3 this morning, because they were sent at midnight, around4 midnight last night to the email inbox of someone who5 wasn't picking up their emails, we spoke to Mr Brisby6 this morning and offered limited undertakings in return7 for a number of things and the undertaking was to say8 that Mr Eliasch would undertake not to authorise a short9 notice Board meeting, not to seek to add additional

10 items to the agenda for next Monday's meeting, in return11 for three things.12 One, that today's hearing wouldn't be effective and13 then we could go off and have proper time to prepare for14 this, and I heard your Ladyship's suggestion of Thursday15 which I think is in accordance with what we would think16 is a reasonable time in order to prepare to come back17 before you or some other judge.18 Second, we said that we would agree to those19 undertakings on -- similar undertakings from the20 claimant that they would not adjourn next Monday's21 meeting and that they would not object to the items that22 are presently on the agenda in respect of which they23 have had notice, and the response from the claimant was24 that, as I understand it -- Mr Brisby will correct me if25 I am wrong -- they would not agree to that because there

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Page 37

1 were certain papers with details in relation to some of

2 the items on the agenda that they had not seen and that,

3 until they saw those, if they saw them, they weren't

4 clear as to whether the meeting could go ahead next

5 Monday and, as I understood it, Mr Brisby gave this as

6 an example, so I don't know whether this was his

7 principal concern, they were concerned that on the

8 agenda for next Monday is a discussion of the new CEO

9 after Mr Zecha stands down and he was concerned that he

10 didn't know who it was proposed might be considered as

11 the new CEO at next Monday's meeting.

12 We have taken instructions and should be in

13 a position to provide that information to Mr Brisby I

14 think, I understand, by Wednesday, which ought to be

15 adequate time for his clients to consider the proposals.

16 Those proposals were rejected, so we are in a position,

17 my Lady, where Mr Brisby is now seeking to --

18 THE DEPUTY JUDGE: Were those proposals made in open

19 exchanges of correspondence?

20 MR BROWN: Not in correspondence.

21 MR BRISBY: They weren't open at all. Certainly I was not

22 told that I would be told who the Chief Executive was

23 going to be. One of the points which is apparent from

24 the correspondence here is there are three people who

25 have apparently been considered but no one will tell us

Page 38

1 who they are and we are obviously concerned that one of

2 them may be Mr Doronin.

3 THE DEPUTY JUDGE: Mr Brown, please don't refer to without

4 prejudice matters without your opponent's consent.

5 MR BROWN: I am sorry, my Lady.

6 THE DEPUTY JUDGE: But it is open to you, of course, to make

7 exactly the same proposal now, if you wish to do so.

8 MR BROWN: Well, in which case, my Lady, I am. I am sorry,

9 I hadn't appreciated -- I was having a without prejudice

10 discussion with Mr Brisby and in fact neither of us

11 mentioned that, so those were proposals that I would

12 make now to your Ladyship and, obviously, I would submit

13 that those provide for a very fair timeframe and set of

14 circumstances in which we can then come back to you and

15 discuss the issues that really we haven't had any

16 opportunity to consider.

17 THE DEPUTY JUDGE: Well, it seems to me that you have

18 accepted that there are some items of information which

19 Mr Brisby's clients properly have asked for which they

20 have not yet got.

21 MR BROWN: Yes.

22 THE DEPUTY JUDGE: Therefore the question of whether or not

23 Mr Brisby's clients would seek to adjourn next Monday's

24 meeting because of lack of information your clients have

25 and haven't yet given them could be discussed on

Page 39

1 Thursday in front of the court at the adjourned hearing.

2 MR BROWN: Yes.

3 THE DEPUTY JUDGE: Are you saying that you would undertake

4 now that Mr Eliasch would undertake not to authorise

5 a short notice Board meeting or new items for the agenda

6 without going through the proper procedures set by the

7 joint venture agreement in relation to the Board meeting

8 due to be held on Monday the 21st?

9 MR BROWN: Yes, so far as Mr Eliasch is concerned. The

10 meeting has been properly called, five clear days. The

11 agenda has been set and Mr Eliasch would undertake not

12 to try and call short notice or to change the agenda.

13 THE DEPUTY JUDGE: That is, to my mind, an acceptable and

14 sensible way forward.

15 Timetabling

16 Can we now talk about timetabling? You have only

17 just got the evidence but we have got a short time to

18 put together the evidence and skeleton that you would

19 wish to submit and give Mr Brisby an opportunity to

20 consider it. Can you do that by 5 o'clock tomorrow?

21 MR BROWN: Could we ask for Wednesday morning?

22 THE DEPUTY JUDGE: Wednesday morning.

23 MR BROWN: 10.00 am.

24 THE DEPUTY JUDGE: 10.00 am. Wednesday morning 10.00 am you

25 file your evidence. Mr Brisby, you can have until the

Page 40

1 end of that day to --

2 MR BRISBY: To reply.

3 THE DEPUTY JUDGE: -- to reply. This is looking as though

4 Thursday is unrealistic and that it ought to be Friday.

5 MR BROWN: Friday would be --

6 THE DEPUTY JUDGE: So end of the day to reply, 5 o'clock,

7 say. Skeletons to be exchanged 12.00 noon, say, because

8 you need to look at the reply Thursday. And Mr Brisby's

9 application to come back on Friday. What do you think

10 the time estimate will be for Friday?

11 MR BRISBY: Bit difficult to say. My Lady doesn't know --

12 THE DEPUTY JUDGE: It's probably going to be most of the

13 day, isn't it?

14 MR BRISBY: Is your Ladyship able to hear it?

15 THE DEPUTY JUDGE: I will be in Jersey.

16 MR BRISBY: Your Ladyship is not directing that this comes

17 back in the general list?

18 THE DEPUTY JUDGE: No. I think -- I will do my best -- I

19 will tell the clerk of the list that you need this heard

20 on Friday.

21 MR BRISBY: Yes. I am grateful to your Ladyship. Can I

22 just make two observations in relation to the suggested

23 timing: I think under your Ladyship's suggested

24 directions we were due to file our evidence and reply by

25 close of business on Wednesday. Because of time

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Page 41

1 differences and Mr Eliasch being in New York, I think

2 going to be in New York then, could we have until

3 10 o'clock on Thursday?

4 THE DEPUTY JUDGE: Who do you mean?

5 MR BRISBY: I mean Mr Amanat, sorry.

6 THE DEPUTY JUDGE: Mr Amanat.

7 MR BRISBY: Could we have until 10.00 am?

8 THE DEPUTY JUDGE: No, because that's too difficult for the

9 skeletons then.

10 MR BRISBY: I was going to say skeletons at 2.00.

11 THE DEPUTY JUDGE: Why don't you do the -- you could serve

12 your reply by 10.00 pm.

13 MR BRISBY: 10.00 pm, so be it.

14 THE DEPUTY JUDGE: And then skeletons at 12.00 on Thursday,

15 because whoever is going to do it needs to have the

16 opportunity to read the skeletons before the hearing.

17 MR BRISBY: Indeed.

18 THE DEPUTY JUDGE: And, Mr Brown, will you draw up the form

19 of the undertaking that has just been offered on

20 Mr Eliasch's behalf.

21 MR BROWN: Yes, my Lady.

22 THE DEPUTY JUDGE: And provide to Mr Brisby.

23 Very well. Now --

24 MR BRISBY: That leaves the form of the order.

25 THE DEPUTY JUDGE: The form of the order.

Page 42

1 Now, you're willing to make certain concessions, you

2 say -- not concessions. That's not the right phrase to

3 adopt -- you think perhaps your junior has been

4 needlessly aggressive.

5 MR BRISBY: No, I do not. I can't see the difference in the

6 two wordings.

7 THE DEPUTY JUDGE: Excellent. So much the better.

8 MR BRISBY: I want to understand if there is a difference of

9 substance that if there is I will then --

10 THE DEPUTY JUDGE: Just show me the two versions now.

11 MR BRISBY: Can I hand your Ladyship (Handed).

12 MR MACLEAN: My Lady, that version is a marked up version

13 which shows the deferences between Mr --

14 THE DEPUTY JUDGE: That's very helpful, thank you.

15 MR MACLEAN: -- Brisby's version or at least Mr Brisby's

16 junior's version and my junior's version.

17 MR BRISBY: Can I hand up a clean version, then, of our

18 order.

19 THE DEPUTY JUDGE: I don't need it because I have one that

20 shows both, haven't I? Actually, perhaps I should see

21 yours, sorry, because you're saying that -- perhaps I

22 should see it. (Handed). Thank you.

23 MR BRISBY: So, perhaps your Ladyship would rise for

24 a moment?

25 THE DEPUTY JUDGE: No, I am not going to. I'm just going to

Page 43

1 read it.

2 MR BRISBY: Okay, fine.

3 (Pause).

4 THE DEPUTY JUDGE: Can I just say, Mr Maclean, that looking

5 at this very quickly --

6 MR MACLEAN: Yes.

7 THE DEPUTY JUDGE: -- I do not see the justification for the

8 insertion of the words "effective before midnight on

9 31 July 2014 in relation to the appointment of

10 Mr Doronin." That's 5.1.2. Because unless and until he

11 is validly appointed as CEO, he isn't CEO, whether

12 before midnight or after midnight on 31 July 2014.

13 MR MACLEAN: Yes.

14 THE DEPUTY JUDGE: But apart from that I can see the

15 attempts to clarify the scope of some of the matters in

16 my order. For example, that what you're trying to do is

17 make sure that it's clear on the face of the order that

18 nothing precludes the Board of directors from having a

19 perfectly proper meeting, properly conducted and

20 properly voted at to do effectively and properly what

21 you didn't manage to do before. And I follow all of

22 that. But I do think that I have a sufficient basis

23 upon which to hear your consequential application.

24 MR MACLEAN: Right. Shall I make that now?

25 THE DEPUTY JUDGE: Please.

Page 44

1 Submissions by MR MACLEAN QC

2 MR MACLEAN: We seek permission to appeal against your

3 Ladyship's order in relation to the order for

4 reinstatement of Mr Zecha. We submit to your Ladyship

5 that the order which your Ladyship has made is both

6 unprecedented and no precedence supporting such an order

7 was cited by Mr Brisby on the previous occasion and we

8 submit that it's wrong as a matter of principle. We

9 submit that the basis that your Ladyship adopted for

10 distinguishing the cases which we cited to your Ladyship

11 is wrong both as a matter of fact and as a matter of

12 law. We submit there is therefore a reasonable prospect

13 of success in this appeal.

14 By the time that this order is to be made, Mr Zecha

15 will not have been acting as CEO for over two months

16 and, pursuant to the order, his reinstatement would be

17 for 17 days. On the previous occasion, no explanation

18 was given by Mr Brisby why this particular order was

19 sought on an ex parte basis and your Ladyship's judgment

20 doesn't, in our respectful submission, identify any

21 reason why it was justified in relation to this

22 particular order.

23 Similarly, no explanation was given by Mr Brisby as

24 to why approximately two months had elapsed before the

25 application was made. It should never have been made on

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Page 45

1 a without notice basis albeit on notice and, in our

2 submission, in the circumstances of this case,

3 (Inaudible) ought to have been a barrier to relief.

4 Your Ladyship's judgment, I respectfully submit,

5 identifies no evidence of the absence of Mr Zecha during

6 the period from when he, we say, resigned, or from when

7 Mr Brisby's clients say Mr Zecha was excluded have had

8 any deleterious effect whatsoever on the operations of

9 the company, or that his reinstatement as CEO for a

10 period of 17 days is likely to save the joint venture

11 company from any irreparable harm.

12 The only material that I could identify in your

13 Ladyship's judgment in relation to that was journalistic

14 material in which it is said that certain journalists

15 have blogged that they were fearful as to what the

16 effect of Mr Zecha no longer being around might have on

17 the companies.

18 In my respectful submission, that is no sufficient

19 basis for the court to make an order of this nature.

20 Furthermore, that the blogger was obviously uninformed

21 as to the terms of the shareholders agreement, which

22 inevitably envisage Mr Zecha stepping down from his

23 position as Chief Executive Officer of the company in

24 the event by 31 July and we therefore submit that your

25 Ladyship's judgment was wrong and that there is

Page 46

1 a reasonable prospect of success on appeal and I

2 respectfully ask your Ladyship for permission to take

3 this matter to the Court of Appeal as a matter of

4 urgency.

5 THE DEPUTY JUDGE: I am not going to give you permission to

6 appeal, Mr Maclean. You will have to ask the Court of

7 Appeal for that.

8 MR MACLEAN: My Lady, may I then make a further application,

9 and that is an application for a stay of the order

10 pending an appeal. The reason for doing that is to keep

11 the disruption caused by what your Ladyship described on

12 a previous occasion as a swing door effect.

13 Now, it is plain, as I have submitted, that rightly

14 or wrongly -- and your Ladyship can't decide that at the

15 moment -- Mr Zecha has not been in charge of this

16 enterprise as a CEO for two months and it would be quite

17 wrong, in our respectful submission, to require the

18 temporary reinstatement which your Ladyship's order

19 envisages, and what is likely to prevent harm to the

20 joint venture from occurring is a stay of your

21 Ladyship's order pending a determination by the Court of

22 Appeal as to whether your Ladyship's order is right or

23 wrong because if it's not stayed then it may be that

24 more harm is caused to the joint venture company than

25 would otherwise be the case from the status quo. It

Page 47

1 would continue as it currently is, so we respectfully

2 ask your Ladyship to grant a stay pending an urgent

3 application to the Court of Appeal by my clients to

4 reverse your Ladyship's order.

5 There isn't any evidence that irreparable harm would

6 be suffered by the company as a result of your Ladyship

7 granting a stay and we respectfully ask for a stay

8 pending --

9 THE DEPUTY JUDGE: I am not going to grant that and let me

10 explain why so that you can have the chance to address

11 me on that if you wish to take it into account.

12 MR MACLEAN: Yes.

13 THE DEPUTY JUDGE: The judgment which I have given gives

14 your clients and Mr Brisby's client but in particular

15 the JVC company two weeks to work out in the manner

16 which was contemplated by the JVC agreement who should

17 be the CEO after 31 July and what Mr Zecha -- we spoke

18 of a sort of figure head role for him. We all spoke of

19 that at the last hearing -- what Mr Zecha's figure head

20 role should be after 31 July and it gives you all two

21 weeks to sort that out properly in accordance with the

22 JVC agreement.

23 Even if I were minded to stay any part of the order,

24 which I am not, I would not be minded to stay that part

25 which found that Mr Doronin had not been validly

Page 48

1 appointed at the previous meeting and I don't know if

2 you wish to address me any further having heard why I am

3 not minded to grant you the stay you seek.

4 MR MACLEAN: All I would simply say is this, my Lady: that

5 if your Ladyship is not minded to grant a stay generally

6 I would ask your Ladyship to impose a stay until

7 midnight tonight which would give us the opportunity,

8 insofar as there is an opportunity, to trouble the Court

9 of Appeal this afternoon. I have simply no idea whether

10 the Court of Appeal would be prepared to hear this

11 matter on such a short, urgent basis and it depends on

12 what the Court of Appeal is doing.

13 THE DEPUTY JUDGE: Why is it urgent? What is the evidence

14 that supports the urgency of this? What is Mr Zecha

15 actually doing that requires this to be dealt with such

16 urgency? What is he doing that he shouldn't be doing?

17 MR MACLEAN: Mr Zecha resigned. On my client's case

18 Mr Zecha resigned.

19 THE DEPUTY JUDGE: I understand.

20 MR MACLEAN: If Mr Zecha resigned he shouldn't be taking

21 over the helm of a company of this size, particularly

22 when it's clear on the evidence that one of the joint

23 venture partners doesn't want him back and, in those

24 circumstances, Mr Zecha should not be exercising or

25 disposing of any functions as CEO until this matter can

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Page 49

1 properly be resolved.

2 THE DEPUTY JUDGE: I am not prepared to grant a stay. If

3 you had told me that Mr Zecha was doing something that

4 would radically run against, run counter to the way in

5 which the joint venture had been run before I would have

6 had greater sympathy, but you have very properly not

7 suggested anything like that given it obviously doesn't

8 seem to be the case, so, no, I am not going to grant you

9 the stay that you have requested. I am afraid I now

10 have to fill out a form.

11 MR MACLEAN: Yes, your Ladyship does, I am afraid.

12 As far as the terms of the order are concerned, your

13 Ladyship has given us an indication as to what your

14 Ladyship's position is on the terms that we have sought

15 to insert into Mr Brisby's draft and I have heard what

16 your Ladyship has to say about one particular aspect of

17 that. Perhaps it would be appropriate for your Ladyship

18 to rise for a short time to see whether we can sort that

19 out and then we can finally get the terms of the order

20 finalised so at least we can have a sealed order from

21 the court in terms which we all understand represent

22 your Ladyship's order.

23 THE DEPUTY JUDGE: Well, I would rather you went away and

24 discussed it and email me something by 2 o'clock, 2.30,

25 if you prefer.

Page 50

1 MR MACLEAN: We will do it as soon as we can.

2 THE DEPUTY JUDGE: Thank you. But if you could just wait

3 while I fill out this wretched form.

4 MR MACLEAN: My Lady, yes.

5 THE DEPUTY JUDGE: And I will tell you what I'm writing so

6 that you know.

7 (Pause).

8 My ruling requires the parties to abide by clear

9 terms -- I should put "the clear terms" -- of the

10 written agreement, the shareholders agreement, until

11 a full hearing of the inter partes injunction

12 application. It does not permit either party greater

13 latitude than that. I therefore believe there is no

14 reasonable prospect of success.

15 That's what I am writing down.

16 Is that it for now?

17 MR MACLEAN: That is it.

18 MR BRISBY: My Lady, we will endeavour to get either

19 an agreed version back to your Ladyship or else two

20 competing versions with presumably some explanation of

21 what the difference is and, equally, if I may suggest

22 your Ladyship, having suggested Mr Brown should produce

23 the minute in relation to the other order, that should

24 be done within the same timeframe.

25 THE DEPUTY JUDGE: Well, I would like you to focus on this

Page 51

1 one first and I don't want you to be in a position where

2 you have to make a choice about which one first.

3 MR BRISBY: Yes.

4 THE DEPUTY JUDGE: So --

5 MR BRISBY: We will deal with Mr Maclean first.

6 THE DEPUTY JUDGE: Deal with Mr Maclean first.

7 MR BRISBY: Obviously, everything as soon as we can.

8 MR BROWN: My Lady, can I just raise a couple of points,

9 please. First, I didn't mention but should have done

10 that obviously in appearing today we weren't submitting

11 to the jurisdiction on behalf of Mr Zecha. I mean, it

12 is said that --

13 THE DEPUTY JUDGE: Mr Eliasch.

14 MR BROWN: Mr Eliasch, I am sorry.

15 THE DEPUTY JUDGE: It's said that he is resident --

16 MR BROWN: It's said that he is resident in London. He is

17 actually resident in Monte Carlo.

18 And the second point is I would like to ask for our

19 costs of having to appear today. This could have been

20 all dealt with all properly on notice. The application

21 was actually issued after the claimant knew that the

22 Board meeting had been arranged for 21 July. We were

23 very ready to give the undertakings that we did give and

24 really this shouldn't have been dealt with by dragging

25 me and my instructing solicitors down to court this

Page 52

1 morning.

2 THE DEPUTY JUDGE: Well, as I understand it, there is some,

3 perhaps, misunderstanding between yourself and Mr Brisby

4 as to the nature of the conversation that you had,

5 whether it was open or without prejudice. You are not

6 able, as I understand it, to show me a letter or email

7 offering these undertakings openly. You have given

8 undertakings to the court so I am not going to give you

9 your costs today. But I will allow, even though you

10 have come along without proper notice, your costs, as

11 well as Mr Brisby's costs, will be costs in this

12 application when it comes on for hearing next week --

13 no, later this week.

14 MR BROWN: Later this week. Thank you, my Lady.

15 (12.27 pm)

16 (The hearing adjourned)

17

18

19

20

21

22

23

24

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Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors 14 July 2014

(+44) 207 404 1400 London EC4A 2DYMerrill Corporation www.merrillcorp.com/mls 8th Floor 165 Fleet Street

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