Ho Swee Huat v Port Kennedy Resorts Pty Ltd

[2000] WASC 240

HO SWEE HUAT & ORS -v- PORT KENNEDY RESORTS PTY LTD & ORS [2000] WASC 240

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 240
Case No:	CIV:1644/1999	Heard:	4 & 6 SEPTEMBER 2000
Coram:	McKECHNIE J	Delivered:	28/09/00
No of pages:	16	Judgment Part:	1 of 1
Result:	Injunction granted
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Parties:	HO SWEE HUAT SIEW TIEN CHOW LIM YUE KHIM MOHAMED JAMIL BIN MOHAMED AMIN PAC-ASIA HOLDINGS PTE LTD PORT KENNEDY RESORTS PTY LTD (ACN 061 115 348) RICHARD ANTHONY LUKIN GARY KEVIN SHEEHAN PAUL ANDREWS JOHN MACKAY MATHESON TEOW KIM CHNG STEPHEN WILLIAM MARSHALL FLEURIS PTY LTD (ACN 009 010 495) PORT KENNEDY GOLF COUNTRY CLUB PTY LTD (ACN 060 885 252)
Catchwords:	Interlocutory injunction to restrain disposal of portion of business No new principles
Legislation:	Port Kennedy Development Agreement Act 1992 (WA)
Case References:	Co-operative Insurance Society Ltd v Argyll Stores Holdings Ltd [1998] AC 1 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Mercedes Benz AG v Leiduck [1996] 1 AC 284 Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 Port Kennedy Golf Country Club Pty Ltd v Port Kennedy Resorts Pty Ltd [2000] WASC 186 Amalgamated Society of Engineers v Smith (1913) 16 CLR 537 Harman Pictures NV v Osborne [1967] 1 WLR 723 JC Williamson Ltd v Lukey (1931) 45 CLR 282 National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271 National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 Rinbar Pty Ltd v Nichevich (1987) 5 ACLC 957 Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch 116 South Sydney District Rugby League Football Club v News Ltd (1999) FCA 1710; (1999) 169 ALR 120

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HO SWEE HUAT & ORS -v- PORT KENNEDY RESORTS PTY LTD & ORS [2000] WASC 240 CORAM : McKECHNIE J HEARD : 4 & 6 SEPTEMBER 2000 DELIVERED : 28 SEPTEMBER 2000 FILE NO/S : CIV 1644 of 1999
CIV 1718 of 1999
CIV 1266 of 1999
CIV 1717 of 1999
CIV 1737 of 1999
Consolidated by order of 7 September 1999 BETWEEN : HO SWEE HUAT

Second Plaintiff

SIEW TIEN CHOW
LIM YUE KHIM
MOHAMED JAMIL BIN MOHAMED AMIN
Third Plaintiffs

PAC-ASIA HOLDINGS PTE LTD
Fourth Plaintiff

AND

PORT KENNEDY RESORTS PTY LTD (ACN 061 115 348)
First Defendant

RICHARD ANTHONY LUKIN
GARY KEVIN SHEEHAN
Second Defendants

(Page 2)

PAUL ANDREWS
JOHN MACKAY MATHESON

TEOW KIM CHNG
STEPHEN WILLIAM MARSHALL
Third Defendants

FLEURIS PTY LTD (ACN 009 010 495)
Fourth Defendant

PORT KENNEDY GOLF COUNTRY CLUB PTY LTD (ACN 060 885 252)
Fifth Defendant

Catchwords:

Interlocutory injunction to restrain disposal of portion of business - No new principles

Legislation:

Port Kennedy Development Agreement Act 1992 (WA)

Result:

Injunction granted

Representation:

Counsel:

Second Plaintiff : Mr J Gilmour QC & Mr S M Standing
Third Plaintiffs : Mr J Gilmour QC & Mr S M Standing
Fourth Plaintiff : Mr J Gilmour QC & Mr S M Standing
First Defendant : Mr D H Solomon
Second Defendants : Mr D H Solomon
Third Defendants : Mr D H Solomon
Fourth Defendant : Mr D H Solomon

(Page 3)

Fifth Defendant : No appearance

(Page 4)

Solicitors:

Second Plaintiff : Freehills
Third Plaintiffs : Freehills
Fourth Plaintiff : Freehills
First Defendant : Solomon Brothers
Second Defendants : Solomon Brothers
Third Defendants : Solomon Brothers
Fourth Defendant : Solomon Brothers
Fifth Defendant : No appearance

Case(s) referred to in judgment(s):

Co-operative Insurance Society Ltd v Argyll Stores Holdings Ltd [1998] AC 1
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Mercedes Benz AG v Leiduck [1996] 1 AC 284
Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1
Port Kennedy Golf Country Club Pty Ltd v Port Kennedy Resorts Pty Ltd [2000] WASC 186

Case(s) also cited:

Amalgamated Society of Engineers v Smith (1913) 16 CLR 537
Harman Pictures NV v Osborne [1967] 1 WLR 723
JC Williamson Ltd v Lukey (1931) 45 CLR 282
National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
Rinbar Pty Ltd v Nichevich (1987) 5 ACLC 957

(Page 5)

Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch 116
South Sydney District Rugby League Football Club v News Ltd (1999) FCA 1710; (1999) 169 ALR 120

(Page 6)

McKECHNIE J:

Introduction

1 This is an application for an interlocutory injunction to restrain the first to fourth defendants ("the defendants"), until the trial of the actions, from disposing of most of the business presently carried on by them.

2 The actions have been consolidated into a long cause under the management of Justice Anderson.

3 In the course of managing the cause, Anderson J has heard a number of applications including applications in relation to the pleadings.

4 In Port Kennedy Golf Country Club Pty Ltd v Port Kennedy Resorts Pty Ltd [2000] WASC 186 which was delivered on 21 July 2000, Anderson J gave limited injunctive relief to the present plaintiffs. He ordered that:

"(i) The first defendant, its servants or agents, be restrained from marketing, advertising or otherwise offering for sale, any land, interest in land or other assets, without giving the plaintiffs five business days' notice in writing of its intention to do so;

(ii) the first defendant, its servants or agents, be restrained from granting or agreeing to grant any interest by way of security over, or interest in, its assets, to any person, or entering into any loan transaction with any person without first giving the plaintiffs five business days' notice in writing of its intention to do so;

(iii) the first defendant be restrained from issuing or allotting or agreeing to issue or allot any shares or share options or other interest in the capital of the first defendant to any person without giving the plaintiffs five business days' notice in writing of its intention to do so;

(iv) the fourth defendant be restrained from dealing or agreeing to deal in any manner with any of the shares held by it in the capital of the first defendant without first giving the plaintiffs five business days' notice in writing of its intention to do so;

(Page 7)

(v) the first defendant do forthwith deliver to Freehills at 140 St George's Terrace, Perth, WA, 6000, the solicitors for the plaintiffs, the financial statements of the first defendant for the year ending 30 June 1999; that is to say, the profit and loss statement for the year, the balance sheet as at the end of the year and a statement of cash flows for the year, together with any notes to the financial statements and the directors' declaration about the statements and the notes;

(vi) the first defendant do, within 30 days from this date, deliver to Freehills, at 140 St George's Terrace, Perth, WA, 6000, the solicitors for the plaintiffs, the same information with respect to the financial year ending 30 June 2000; and

(vii) liberty to apply on two business days' notice to dissolve or vary this injunction."

5 He declined to place the plaintiffs in control of Port Kennedy Resorts Pty Ltd but said at par 14:

"… I am not persuaded, having regard for the balance of convenience, that it is necessary to go that far to protect Pac-Asia's interests pending trial of the action. However, I do consider that it is appropriate that Pac-Asia be provided with information concerning the management and affairs of the first defendant and that it be given notice of any extraordinary transactions which the first defendant intends to enter into. In short, I think it is appropriate to make orders which will enable Pac-Asia to keep at least half an eye on the management of the first defendant so as to enable it to seek further specific interlocutory relief should it appear necessary."

6 On 28 July 2000 the defendants' solicitors wrote to the plaintiffs' solicitors as follows:

"Dear Sirs

HO & ORS v PORT KENNEDY RESORTS PTY LTD & ORS
SUPREME COURT CIV 1644 of 1999

(Page 8)

We refer to the orders made by Justice Anderson in the abovementioned action on 27 July 2000.

Pursuant to those orders we, on behalf of our client, hereby give 10 days' notice to your clients that Port Kennedy Resorts Pty Ltd are in the process of negotiating and intend to agree the following:-

1. a potential sale of the head lease of the golf course at Port Kennedy with The Golf Club (WA) Ltd;

2. entry into a project management agreement and possibly an investment of equity in Port Kennedy Resorts Pty Ltd with Broad Construction Service Pty Ltd;

3. an investment of equity and/or a purchase of all assets of Port Kennedy Resorts Pty Ltd with Taylor Woodrow (Australia) Pty Ltd;

4. an investment of equity and/or a purchase of all assets of Port Kennedy Resorts Pty Ltd with the Fini Group;

5. an investment of equity and/or a purchase of all assets of Port Kennedy Resorts Pty Ltd with Cedar Wood Property Pty Ltd;

6. development and possible sale or rental of Beach Rental Units 2 with Veldara Pty Ltd;

7. development and possible sale or lease of the café/kiosk with Paul Andrews and/or nominee;

8. sale of the head lease of the golf course and land development to Allan Caratti and/or nominee; and

9. an investment of equity and/or a purchase of all assets of Port Kennedy Resorts Pty Ltd with Australand Properties.

Yours faithfully"

7 After an exchange of correspondence, the plaintiffs made urgent application that the orders for interlocutory injunction made by Anderson J on 27 July 2000 be varied by enjoining the defendants from selling or disposing of the land or assets of Port Kennedy Resorts Pty Ltd which I will hereafter refer to as PKR.
(Page 9)

8 The injunction is strongly opposed by the defendants who, through Mr Lukin, have filed detailed affidavits in response.

9 In the course of submissions, both parties have referred from time to time to affidavits filed by one or other party in earlier interlocutory proceedings and in one case to different proceedings involving the same parties. I am conscious of the urgency of this matter because of the proposed sale and the fact that I have granted a temporary injunction pending my decision.

10 Although I have read all the considerable volumes of affidavit material, I have not referred to it in any great detail beyond the minimum necessary to explain the reasons for my conclusion that an injunction should be granted.

11 For the same reason the thoughtful and detailed arguments by counsel for the parties, set out in written form in the outlines of submission and amplified by oral argument, have been taken into account by me but I am aware that the summary nature of my reasons does not deal comprehensively with each argument or submission.

Interlocutory injunction - general principles

12 It is almost trite to say that the plaintiffs must first establish that there is a serious question to be tried and, further, that the balance of convenience must favour the grant of an injunction.

13 In Jackson v Sterling Industries Ltd (1987) 162 CLR 612 the High Court considered the purpose of an injunction. At 623 Deane J said in respect of Mareva orders, that:

"That general power should, however, now be accepted as an established part of the armory of a court of law and equity to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction."

14 At 618 Wilson and Dawson JJ, after expressing agreement with Deane J said:

"… the Mareva injunction represents a limited exception to the general rule that a plaintiff must obtain his judgment and then enforce it. He cannot beforehand prevent the defendant from disposing of his assets merely because he fears that there will be nothing against which to enforce his judgment nor can he be

(Page 10)

given a secured position against other creditors. The remedy is not to be used to circumvent the insolvency laws."

15 These comments have general application to interlocutory relief and are not, in my opinion, confined to Mareva orders.

16 The essential argument on behalf of the plaintiffs is that, unless injunctive relief is given, their claim against the defendants will be wholly frustrated.

The nature of the claim - the pleadings

17 The statement of claim is still not in order. There have been several strike-out applications which have been partly successful.

18 At this stage the plaintiffs have filed a further amended consolidated statement of claim.

19 The defendants have not yet pleaded, which is, in view of the progress of the pleadings, understandable.

20 It is sufficient for the purpose of these reasons to say that the plaintiffs assert that Pac-Asia holds a valid charge over the assets of PKR. It is also asserted that there is an investment agreement between Port Kennedy Golf Club, Pac-Asia, PKR and Fleuris, one result of which is that shares in PKR would be transferred by Fleuris to Pac-Asia Pte Ltd. Finally, there is a claim that the individual plaintiffs and others are still validly appointed directors of Port Kennedy Resorts.

21 It is asserted that on 22 February 1999, Fleuris purported to remove certain directors and appoint others. The second plaintiff is one of those persons. All these are matters with which the defendants strongly join issue.

22 Whether there was a serious issue to be tried was a live issue considered by Anderson J in Port Kennedy Golf Country Club Pty Ltd v Port Kennedy Resorts Pty Ltd (op cit).

23 In his judgment, there is an arguable case that an informal investment agreement was entered into between Pac-Asia and the first, fourth and fifth defendants and a triable issue in relation to the position of the plaintiffs as directors.

(Page 11)

24 The defendants argue that there are new circumstances which have become apparent since Anderson J heard the argument for the interlocutory injunction in November 1999. Those circumstances are that any time limit for exercising the call option has passed without that option being exercised.

25 The effect, put simply, is that the plaintiffs have lost any opportunity to acquire shares.

26 This argument has considerable substance and may, or may not, prove decisive at trial, but nevertheless I consider that there is still a serious issue to be tried. The call option did not specify a particular period. There needs to be some certainty as to the period within which it would be exercised but the precise period will not be able to be determined until trial. The defendants argue that the question of board control is also to a degree dependent upon the option being exercised. As it has not been exercised, there is no longer any serious question to be tried on the issue of the directors. However, the plaintiffs have satisfied me there is an arguable case that within the agreement, whether express or implied, there was a term that Fleuris would grant Pac-Asia an extension or renewal of the option.

27 Anderson J concluded that there were triable issues. The further submissions of the defendants have failed to persuade me that there has been a material change in circumstance sufficient to revisit the decision of Anderson J. In any event, on the present state of the action, I consider, with respect, that the conclusion of Anderson J as to a serious question to be tried is plainly right.

Balance of convenience

28 This application for an interlocutory injunction turns in the end upon the balance of convenience.

29 I consider the contentions of each party are in equipoise. Substantial prejudice will flow to each party from a decision to grant, or to decline to grant, an injunction.

Prejudice to the plaintiffs

30 The practical effect of the arrangement proposed by the defendants is that there will be little left for the plaintiffs. The proposed arrangements referred to by Mr Lukin in his affidavit of 4 September 2000 will

(Page 12)

effectively alienate the future development from the control of PKR. If any of the transactions indicated in the letter of 28 July 2000 (op cit) bear fruit, the same result will be achieved. If the individual plaintiffs are successful in their argument on the directorships, this is likely to be a hollow success because they would preside over a mere shell of a company whose assets have all gone. They would be unable to make decisions as to future development because of the sale of the head lease, a sale which they regard in any event as a sale at an under-value.

31 There would be no realistic possibility that they might revoke any contracts entered into by the present management.

Prejudice to the defendants

32 If an injunction is granted, the defendants would be prevented from carrying on business in the way they would wish. Mr Lukin has deposed that the proposed transaction with the golf club is unable to be repeated. There do not seem to be any other buyers in the market. The defendants point to a valuation by Ray White Valuers showing the land value only slightly less than the sale price payable under the contract. Colliers Jardine have given a professional opinion as to the need for an infusion of capital for the development to have prospects of a realistic return. As Mr Lukin has deposed:

"18.5 if the proposed agreements do not proceed, because the first defendant does not currently have available to it alternative funding to carry out the project, it may well receive a default notice from the State pursuant to the Agreement and could thereby lose its interest in the project and lose its ability to repay its creditors;"

33 An injunction will, to a considerable extent, interfere with the way in which the defendants carries on their business.

34 It was this aspect in part which led Callinan J to dissent in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 at par 190.

35 In Co-operative Insurance Society Ltd v Argyll Stores Holdings Ltd [1998] AC 1, the House of Lords considered the effect of an injunction which compelled a defendant to continue to trade in a loss making supermarket.

(Page 13)

36 Their Lordships upheld the settled practice which was never to grant mandatory injunctions requiring persons to carry on business.

37 The defendants rely upon this case and its principle but there are distinguishing features which set it apart from the present circumstances. The case concerned a mandatory injunction. This case is an example of a prohibitory injunction. Any such injunction interferes with a defendant's right of choice and when the defendant is a company or a company director, may well interfere with the choice of commercial decisions.

38 The extent to which an injunction should interfere with those choices will always be a matter of degree affecting the issue where the balance of convenience and the interests of justice lie in the actual circumstances under consideration.

39 It is argued that an injunction will force the defendants to continue a loss making business.

40 The defendants will certainly be prejudiced by an injunction as I have already acknowledged. However, there is no evidence to show that the company is insolvent and would have to cease trading.

41 While that is hinted at in the submissions of counsel for the defendants, I do not see within the affidavits filed, any actual evidence that Port Kennedy Resorts will become insolvent as a result of an injunction. However, an injunction will have a significant effect.

42 An important consequence of the grant of an interlocutory injunction may be to prevent a transfer of funds so as to restore solvency to Fleuris Pty Ltd, therefore enabling it to mount an argument in relation to proceedings for winding-up which have been commenced against it. I have weighed this matter in the exercise of my discretion. Although the plaintiffs criticise the machinations which may lead to Fleuris being able to contest the statutory demand, the general object seems to me to be legitimate.

Receivers

43 The defendants argue that there is an alternative remedy to injunctive relief and submit that if the plaintiffs are so sure of their position they could appoint receivers. There may have been a time when the appointment of a receiver under the charge would have been a simple option. However, the strength with which the plaintiffs' claims have been resisted by the defendants suggest that any attempt to appoint a receiver

(Page 14)

would have been met with immediate action to have the receiver removed. The same issues now joined would simply have been ventilated in those proceedings. I do not regard the plaintiffs' actions in failing to appoint a receiver as material to the exercise of the discretion to grant an injunction in the particular circumstances of this case.

Ministerial approval

44 Any agreement entered into by PKR for the assignment of property on the scale proposed will require Ministerial approval under the Port Kennedy Development Project Agreement cl 20.

45 The defendants suggest that in the end the Minister will effectively decide the competing claims by granting or withholding consent to the assignment or by acknowledging the plaintiffs' claims under the charge notwithstanding lack of compliance.

46 This may be so, but the Court cannot pass the responsibility for resolving the question which has arisen on this injunction by deferring to the Minister who is entitled to take broader public issues into account. This application essentially concerns the private issues of the various parties.

Letter of undertaking

47 On 1 September 2000, the defendants, through their solicitors, wrote to the plaintiffs' solicitors offering to consent to certain orders as set out:

"2. However, we are instructed by PKR to consent (provided no orders are sought to restrain the proposed sale of assets by PKR and your clients undertake to facilitate settlement by providing a partial satisfaction of charge) to an order that, in light of the pending litigation, PKR use the proceeds of sale solely for the purpose of paying creditors and ongoing operating (including legal) costs: ie PKR will agree to an order that it not pay any dividend or make any return of capital to its shareholders from the proceeds of the proposed agreements, until judgment in the action or for a period of two years from the date of the order, whichever is the sooner. If the action has not been resolved in two years time, an extension of the two year period can then be applied for by your clients. While PKR will require an undertaking as to damages by the

(Page 15)

plaintiffs for such an order, it will not require any security in the jurisdiction be given for that undertaking."

48 This offer was repeated in a letter dated 5 September 2000:

"On an open basis, our clients propose that the following orders be made by consent at the commencement of the hearing tomorrow (and without further argument):-

1. The application for an injunction by your clients be dismissed.

2. The costs of the application be reserved.

3. Subject to approval of, and directions to be given by, the Honourable Justice Anderson (the Judge managing the matter in the Long Causes List) there be a trial on an expedited basis of the following issues:-


3.1 the existence and enforceability of the alleged Investment Agreement;

3.2 the validity and enforceability of the Deed of Charge and Share Mortgage;

3.3 the plaintiffs' entitlement to be directors of Port Kennedy Resorts Pty Ltd;

3.4 the determination of the amount (if any) secured by, and the property encumbered by, the Deed of Charge; and

3.5 whether the sub-lease granted to The Golf Club (WA) Ltd is subject to the fourth plaintiff's claim under the Deed of Charge.


We would also propose that the consent orders be made subject to an undertaking by Port Kennedy Resorts Pty Ltd (which will be given by counsel) in the terms of paragraph 2 of our letter to you of 1 September 2000, appearing at page 55 of the affidavit of Mr Lukin sworn 4 September 2000."

49 The existence of such an offer is material to the exercise of the discretion to grant an injunction. If there is a protective remedy less than a full injunction then, in general, such a remedy should be chosen.
(Page 16)

50 I have reflected on the offer but have reached the view that it will not operate effectively to do justice to the plaintiffs if they are ultimately successful at trial. It may secure, to an extent, a sum of money to meet a damages claim but it does not adequately address the other relief sought, relief for which I have held there are serious issues to be tried.

Security for costs

51 The defendants argue that there should be deposited a security for costs, preferably in the sum of $20 million to cover the undertaking for damages. The plaintiffs are not resident in Western Australia and in such circumstances the general rule would be that an enjoined defendant is entitled to some assurance that an undertaking for damages will be honoured by the existence of assets within the State.

52 There are considerations peculiar to the facts of this case which lead me to decline to make such an order as a condition of the grant of an interlocutory injunction.

53 It is common cause that a significant amount of money was advanced by Pac-Asia Holdings Pte Ltd to PKR. The precise amount is in dispute, but at all events it is very significant. The defendants concede that at the least, the plaintiffs would have a claim as an unsecured ordinary creditor for moneys had and received. I do not wish to do an injustice to the defendants' argument on this point. The defendants strongly submit that is the only right which the third plaintiff now has. Nevertheless, for the purposes of security of costs, the fact that the third plaintiff has an asset within the jurisdiction, namely a chose in action for a substantial claim against the first defendant PKR, is sufficient in this case for me to decline to make an order for security for costs.

Conclusion on application for injunction

54 In the end the Court is faced with the sort of dilemma identified by Lord Mustill in Mercedes Benz AG v Leiduck [1996] 1 AC 284 at 299G.

55 The respective claims of the parties as to where lies the balance of convenience are in near equipoise. What decides the exercise of my discretion in favour of the plaintiffs is the need to protect the processes of the Court to prevent frustration of a possible judgment, notwithstanding the caution expressed by Wilson and Dawson JJ in Jackson v Sterling Industries Ltd (op cit).

56 The plaintiffs have a clearly arguable case and if the status quo ante is not maintained then, if the plaintiffs succeed at trial, there will be nothing left upon which a judgment might effectively operate. The Court's process will be frustrated.

Future conduct of the litigation

57 It does seem that each party is keen to progress this litigation. As I have previously indicated, any decision by me whether to grant or withhold the grant of an injunction will be accompanied by substantial prejudice to the other party. For that reason it is essential that the parties immediately confer and make realistic attempts to identify the issues and the evidence so that the matter can be entered for trial at an early date. It may be that there can be a trial of a preliminary issue, such as the validity of the charge, and what property, if any, is secured by the charge.

Orders

1. I order the parties to confer in an endeavour to settle issues and a timetable to advance the litigation. I will require the plaintiffs to make application for a further directions hearing before Anderson J following that conference and no later than 10 days from the date of this order.

2. The orders for interlocutory injunction made by Anderson J on 27 July 2000 be varied by addition of the following orders:


(a) Until further order:

(1) the first defendant, whether by its servants or agents or otherwise, be restrained from agreeing to sell, transfer, lease or otherwise dispose of, or selling, transferring, leasing or otherwise disposing of, any of its land, interest in land or other assets or interest therein (other than residential lots sold in the ordinary course of business);

(2) the first defendant, whether by its servants or agents or otherwise, be restrained from granting or agreeing to grant any interest by way of security over, or interest in, its land or other assets, to any person;

(3) the first defendant, whether by its servants or agents or otherwise, be restrained from issuing or




allotting or agreeing to issue or allot any shares or options or other interest in the capital of the first defendant to any person;


(4) the fourth defendant, whether by its servants or agents or otherwise, be restrained from dealing or agreeing to deal in any manner with any of the shares held by it in the capital of the first defendant;

(5) the first defendant, whether by its servants or agents or otherwise, be restrained from lending or otherwise advancing any money to any party (save for the payment of creditors in the ordinary course of business);

(6) the first defendant, whether by its servants or agents or otherwise, be restrained from declaring or paying any dividend or make any income or capital distribution, whether in cash or specie to its shareholders or any of them.

(7) there be liberty to each party to apply on two business days' notice to vary or dissolve these orders.