In the matter of Balamara Resources Ltd

[2023] NSWSC 1349

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Balamara Resources Ltd [2023] NSWSC 1349

Hearing dates:

2 November 2023

Date of orders:

2 November 2023

Decision date:

02 November 2023

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Interlocutory injunction restraining conversion of debt to equity not granted; ancillary orders made regarding notice of meetings and documents to be provided to a director and the plaintiff.

Catchwords:

EQUITY — Equitable remedies — Interlocutory injunctions — Where plaintiff seeks to restrain defendants’ conversion of debt to equity under a loan agreement and convertible notes — Whether balance of convenience favours an interlocutory injunction being granted to restrain conversion of debt to equity.

Legislation Cited:

- Corporations Act 2001 (Cth), ss 232-233

Cases Cited:

- Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

- Chimaera Capital Ltd v Pharmaust Ltd (2007) 64 ACSR 332

Category:

Procedural rulings

Parties:

Vulpes Distressed Fund (Cayman Island Company No. 330197) (Plaintiff)
Balamara Resources Ltd (First Defendant)
Derek Lenartowicz (Second Defendant)
Michael Anthony Hale (Third Defendant)
Jonathan Kwok Hung Leung (Fourth Defendant)
Bright Agile Limited (Fifth Defendant)

Representation:

Counsel:
D Williams SC/A Macauley (Plaintiff)
P Braham SC/Z Graus (First Defendant)
J Hynes (Fourth and Fifth Defendant)

Solicitors:
KMD Lawyers (Plaintiff)
Nova Legal (First Defendant)
Gadens (Fourth and Fifth Defendant)

File Number(s):

2023/250149

Judgment – EX TEMPORE (Revised 3 november 2023)

Nature of the application

1. By Amended Originating Process filed on 14 September 2023, supported by Points of Claim (which will be amended consequential upon a judgment which I have delivered on 31 October 2023), the Plaintiff, Vulpes Distressed Fund ("Vulpes") sought relief broadly, under s 232 and 233 of the Corporations Act 2001 (Cth) dealing with oppression, in relation to the affairs of the First Defendant, Balamara Resources Pty Ltd ("Balamara"). The Fourth Defendant, Mr Leung, is a director of Balamara and associated with the Fifth Defendant, Bright Agile Pty Ltd ("Bright Agile").

2. The proceedings involve a dispute as the conversion of various loans made by Bright Agile to Balamara to shares in Balamara. In respect of two loan agreements, there is a dispute as to the conversion rate which was adopted, and in respect of a further loan agreement dated on or about 7 July 2023 (“7 July Agreement”), there is a dispute both as to the propriety of entry into that loan agreement, conferring rights of conversion in respect of a previously undocumented arrangement, and as to the terms of the rights of conversion which were conferred.

3. By Interlocutory Process filed by Vulpes on 16 October 2023, it initially sought an interlocutory injunction preventing several Defendants from converting any convertible notes which were the subject of a notice of conversion dated 27 September 2023 (“27 September Notice”) issued by Bright Agile to Balamara into shares in Balamara and several other orders.

4. There is a substantial contest as to the first order sought by Vulpes, by way of injunctive relief addressing the conversion of the convertible notes pursuant to the 27 September Notice, although the form of relief sought has developed, in the course of the hearing, now to take the form contained in Vulpes’ proposed short minutes of order marked MFI 7. Vulpes now seeks an order restraining the conversion of the convertible notes pursuant to the 27 September Notice; and also seeks to restrain the conversion to shares pursuant to any rights of conversion contained in the 7 July Agreement, but does not now press wider relief in respect of the conversion by other persons in respect of other arrangements.

5. By its Interlocutory Process, and in the short minutes of order, Vulpes also seeks other relief, including relief directed to notice of directors' meetings and the provision of information to Mr von Bernstorff, a director of Balamara who is associated with Vulpes, and as to the provision of certain documents to Mr von Bernstorff and Vulpes. There is now no contest between Vulpes and Balamara as to that relief and Mr Leung and Bright Agile do not seek to be heard as to that relief. I am satisfied that that relief should be granted.

6. Bright Agile has in turn offered an undertaking by its Counsel, that, if the Court refuses the first order sought by Vulpes, and Bright Agile is found not to have been entitled to convert debt to equity pursuant to the 27 September Notice, and/or any rights of conversion as contained in the 7 July Agreement, then Bright Agile would not oppose any conversion of debt to equity pursuant to the 27 September Notice or the 7 July Agreement being reversed. As it will emerge later in this judgment, that undertaking is of some significance, where this application involved difficult issues in respect of the balance of convenience. The difficulty of those issues arises, in particular, because of the interaction between the first order that is sought by Vulpes and the fact that Mr von Bernstorff has convened an extraordinary general meeting, at which he seeks to replace the existing directors of Balamara with nominees of Vulpes. The question of the voting rights available to the various parties at that meeting is plainly front of mind for all the parties.

Affidavit evidence

7. I turn now, briefly, to the affidavit evidence, before also turning to a chronology of events. Ultimately little will turn upon much of that evidence, and much of that chronology, where all parties accept that Vulpes can establish a serious question to be tried; Mr Williams, with whom Mr Macauley appears for Vulpes, puts matters directed to showing the strength of that case; but the most significant issues in this application arise in respect of the balance of convenience.

8. Vulpes relies on the affidavit of its solicitor, Ms MacDonald, dated 4 August 2023, which refers to the circumstances of Vulpes’ investment in Balamara, and addresses aspects of the conversion notices which are in dispute, and attempts made by Mr von Bernstorff, in his capacity as a director of Balamara, to obtain access to further information as to the events which have occurred. Mr Williams emphasises, in outlining the chronology of events, the difficulties which Mr von Bernstorff has faced in obtaining such information and I proceed on the basis that Balamara has been anything but forthcoming in its dealings with Mr von Bernstorff.

9. Ms MacDonald also refers to a concern by Vulpes as to the risk of dilution of its shareholding, although it must be recognised, here, that Vulpes has increased its shareholding in Balamara, thereby diluting the shareholding of other shareholders, and any dilution which will now occur in respect of the Vulpes’ shareholding has a broadly corresponding character to that which has previously occurred by Vulpes' exercise of rights so as to dilute those other shareholdings. I recognise that the risk of dilution is relevant to the balance of convenience, in the context of the forthcoming extraordinary general meeting.

10. Vulpes also reads Ms MacDonald's second affidavit of 13 October 2023, although it is less relevant to the matter in dispute so far as it relates to access to documents generally. It refers to steps which have been taken by Vulpes, to which I referred above, to call an extraordinary general meeting of Balamara directed to the removal of its directors and their replacement by Vulpes' nominees.

11. Vulpes also reads the affidavit of Mr von Bernstorff dated 28 October 2023, which responds to the aspects of other of evidence led by, inter alia, Mr Leung, and also outlines events at board meetings of Balamara and refers to the calling of the extraordinary general meeting by Mr von Bernstorff.

12. It appears that Balamara relies on the evidence which it read at a hearing of an earlier application on 31 October 2023, although Mr Braham, with whom Ms Graus appears for Vulpes, did not identify the particular affidavits relied on and did not find it necessary to identify which parts of those affidavits related to any matter in issue.

13. Mr Leung and Bright Agile in turn rely on Mr Leung's affidavit dated 24 October 2023, which refers to the history of Bright Agile's investment in Balamara, and the loans which it has made over a considerable period, some of which have been documented by convertible notes and subsequently converted to shares in Balamara. Mr Leung also refers, in evidence admitted as to his understanding and not proof of the fact, to his belief that there would be a consistent conversion right in respect of loans made at particular times, which goes to the question of the legitimacy or otherwise of a change in the conversion price at which shares were to be issued on the conversion of convertible notes issued to Bright Agile.

Chronology of events

14. Turning now to the chronology of events, Mr Williams has taken me, at substantial length, through the events which have led to this application. I referred to some of those events in my judgment delivered on 31 October, in respect of an application concerning a different matter. Mr Williams today focuses particularly on issues relating to meetings of the directors of Balamara, the circumstances in which documents were prepared on 7 July 2023 to document previously undocumented loan arrangements between Balamara and Bright Agile, and the substantial difficulties which Mr von Bernstorff has faced in obtaining access to documents concerning those arrangements.

15. Mr Williams, and counsel for the other parties, refer to the sequence of events, drawing different inferences from the relevant events. For a period, Bright Agile was advancing funds to Balamara in circumstances that Vulpes had reduced its shareholding in Balamara; Balamara then increased its shareholding in Balamara, by the conversion of convertible notes to shares; on 4 July 2023, the Federal Court of Australia made orders for the production of documents to Mr von Bernstorff in his capacity as a director of Balamara; and, before those documents were produced, another director of Balamara called a meeting of the directors for 7 July 2023, at which steps were taken to execute documents which would reduce the conversion price for securities previously issued to Bright Agile, and document, for the first time by the 7 July Agreement, loans which had previously been made by Bright Agile to Balamara, which Vulpes contends were made without board approval, and allow a conversion right in respect of those loans. Mr Williams draws attention to the fact that Balamara has since also indicated the wish to raise substantial further funds for legal expenses.

16. After these proceedings were commenced by Vulpes with an application for an ex parte interlocutory injunction, and after the Amended Originating Process and Points of Claim were filed in the proceedings, Mr von Bernstorff called an extraordinary general meeting seeking to remove the directors of Balamara other than himself and appoint six other persons as directors. Mr Williams also refers to the subsequent steps taken by Vulpes, on the one hand, to seek to preserve its current shareholding in Balamara against dilution, and by Bright Agile on the other, to seek to reverse the dilution which it had previously suffered when Vulpes converted its converting notes to shares in Balamara, by itself exercising rights of conversion in respect of converting notes. As I have noted above, it is apparent that at least Vulpes and Bright Agile are paying significant attention to maximising or maintaining their respective shareholding interests in Balamara, with a view to the potential outcome of the extraordinary general meeting. From time to time in submissions, one might have thought that this dispute was ultimately about who would control the general meeting, or who would control Balamara after the general meeting had occurred, rather than about the particular transactions to which the injunctive relief is directed. It may be that commercial reality was intruding upon the legal form of the dispute at those times.

17. Both parties have also tendered documents which indicate the history of the relevant transactions, again indicating the circumstances in which the parties' shareholding interests in Balamara have increased, from a relatively low percentage held by Bright Agile in the first instance, by the conversion of converting notes, and then from a low percentage held by Vulpes, again increased by the conversion of converting notes, with the subsequent dilution of Bright Agile's holding. A schedule is also tendered which indicates the particular conversions which are the subject of the 27 September Notice given by Bright Agile, which Vulpes now seeks to restrain.

The applicable principles and the parties’ submissions

18. Before turning to the parties' submissions, I should briefly refer to the applicable principles, which were largely not in contest in the proceedings. In determining whether an interlocutory injunction should be granted, I should apply the approach identified by the High Court of Australia in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] which identifies the requirement for a prima facie case or serious question to be tried in respect of the application, and the need to have regard to the balance of convenience. I bear in mind that, in order to obtain interlocutory relief, Vulpes must not only demonstrate a prima facie case or serious question to be tried as to its entitlement to the relief sought at the final hearing, but also that damages would not be an adequate remedy, so as to warrant the grant of injunctive relief, and that the balance of convenience favours the grant of an injunction on an interlocutory basis. Here, I noted above that there is no dispute between the parties that a serious question to be tried exists, although Vulpes goes further to seek to establish that it has a strong case; there is no dispute that damages would not be an adequate remedy; but there is a substantial dispute as the balance of convenience. I also bear in mind that these three considerations are interrelated, so that the greater the extent to which the balance of convenience favours one course over another, the less strong a case for final relief might be required to justify an interlocutory injunction; conversely, the stronger the case for final relief, the less that might be required to tip the balance of convenience in a plaintiff's favour.

19. Turning first to Mr Williams' submissions, he outlined the chronology of events to which I have referred above, and pointed to the claim that is brought in the substantive proceedings by Vulpes, challenging the legitimacy of the conversion of converting notes, or the underlying loans, in respect of shares in Balamara issued to Bright Agile. Mr Williams also draws attention to the principles applicable in an oppression claim and there is no substantive contest between the parties as to those principles. He also points to the fact that there are constraints upon the circumstances in which shares may properly be issued, and here draws attention to Vulpes' challenge to the propriety of the share issues to Bright Agile as an improper exercise of directors' powers, directed to affecting the control of Balamara and, on Vulpes' case, to diluting its increased interest in Balamara, which it had obtained from converting its converting notes in a way that diluted other shareholders. Mr Williams also fairly draws attention to the range of issues which are relevant to the balance of convenience, and, rightly draws attention to issues of hardship, prejudice, and what, if any, undertaking the defendants are prepared to give. I will return below to the significance of the undertaking offered by Bright Agile in this context.

20. So far as the first, contested, injunction is concerned, Mr Williams submits and I accept that the balance of convenience must be assessed in the context of the forthcoming extraordinary general meeting. For reasons that I will note below, that is not a matter that altogether assists Balamara in respect of this application. Mr Williams submits that the Court would be concerned to ensure that the extraordinary general meeting, in its outcome, reflects the outcome of the lawful and proper voting rights of Balamara's shareholders and is not distorted by improper share allotments to one shareholder, namely Bright Agile, over the remaining shareholders. The difficulty with that proposition is, obviously enough, that the Court has not yet determined the proceedings and cannot at this interlocutory stage determine whether the allotments made to Bright Agile are improper in a way that has regard to all of the evidence that can be led at a final hearing. I have noted above that the question whether Vulpes has a seriously arguable case is not in dispute. However, the Court cannot go further than determining whether a seriously arguable or strongly arguable case exists, to conclude, for example, that shares were improperly issued to Bright Agile, or will be improperly issued to Bright Agile, which would answer the question to be determined at a final hearing and not the question to be determined now.

21. Mr Williams also refers to the circumstance that the issue of shares has occurred in the context of the call for an extraordinary general meeting, and to the case law recognising the concept of a "caretaker director", which has been treated with limited enthusiasm in the case law; and also recognising that, where an extraordinary general meeting has been requisitioned and there is a reasonable prospect that directors may be removed, an issue of securities which protects their position will be scrutinised carefully, and with the recognition that it may have been made for an improper purpose: Chimaera Capital Ltd v Pharmaust Ltd (2007) 64 ACSR 332 at [89]ff. I bear these principles in mind. However, I also recognise that, here, the dealings between the parties are complex and their sophistication in corporate strategising is apparent. Plainly, an extraordinary general meeting has been called; but it has been called in circumstances that Vulpes has previously increased its own shareholding by the conversion of convertible securities and where it was plainly possible that Bright Agile would then seek to do the same. It is not apparent to me that, if the conversion of convertible securities by Bright Agile would otherwise be a proper act, then it would become improper because an extraordinary general meeting has been called at a time when Bright Agile could exercise such conversion rights in order to seek to renew its relative shareholding interest in Balamara.

22. Mr Williams also refers to the costs which have been incurred in respect of calling the extraordinary general meeting, but the evidence is that those are very limited, at least having regard to the legal costs which are likely to have been incurred to date in these proceedings, and will be incurred in the future as they go to a final hearing.

23. Next, and importantly, Mr William submits that any prejudice arising from the grant of the contested injunction is reversible, because directors can always be later appointed and removed, and because Bright Agile is not impeded in exercising its rights as a shareholder by the fact that the existing directors are removed and a new board is appointed, and shares can always be allocated later to Bright Agile, if that is the correct outcome. There is, with respect, a degree of unreality about that submission. Plainly, the removal of all of the directors of Balamara other than Mr Von Bernstorff, as is sought at the extraordinary general meeting, and their replacement by a board that is nominated by Vulpes or Mr Von Bernstorff, may well bring about significant changes to the direction of Balamara, given the extent of disputes that are evident to date. It is notable that Mr Williams' submission does not have regard to the fact that the removal of existing directors other than Mr Von Bernstorff and the appointment of new directors, which may more readily be achieved by Vulpes if Bright Agile is unable to convert its loans to shares, may well change the direction of Balamara in a way that the Court cannot later reverse.

18. Mr Williams then submits that there are grounds for criticism of the conduct of the existing board, but that seems to me to raise a false issue, because the Court’s role is not to determine which is the preferable board for Balamara. The Court must instead determine the balance of convenience in the context that an extraordinary general meeting has been called, and recognise the risk that the steps now taken by interlocutory relief may have irreversible consequences, and take that risk into account.

19. Mr Hynes, who appears for the Mr Leung and Bright Agile, in turn refers at some length to the wider issues in the proceedings, and accepts, as I have noted above, that there is a serious issue to be tried in respect of those issues. Mr Hynes emphasises, in respect of the balance of convenience, that, at the time these proceedings were commenced, Bright Agile and its associates held 19.9 per cent of Balamara's issued share capital, although I pointed above to the fact that, an earlier point, they held a much smaller portion of Balamara's shares. He refers to the fact that Vulpes' interests in shares in Balamara had subsequently increased; and Mr von Bernstorff then called the extraordinary general meeting; and Bright Agile subsequently sought to convert its shares, by the issue of the 27 September Notice, in a manner that would have restored its previous proportional interest in Balamara. Mr Hynes submits that Vulpes’ application for the injunction is tied to the extraordinary general meeting, or at least will have significant consequences for the extraordinary general meeting, so far as it will prevent Bright Agile restoring its proportionate interest in Balamara to that which previously existed.

20. Mr Hynes, in turn, responds to Mr Williams' submission that the effect of granting the injunction can readily be reversed, by submitting, as I have noted above, that there is a lack of reality in that submission. He points to the likelihood that Mr von Bernstorff and Vulpes' nominees as directors, if they obtain control of Balamara at an extraordinary general meeting, would take steps to change the direction of Balamara and to the fact that the Court could not later reverse such a change.

21. I pause to note, in that context, there is a curiosity of the form of interlocutory relief that was sought by Vulpes, which would continue only until 10 November 2023, being the date of the extraordinary general meeting and until that extraordinary general meeting had concluded. Mr Williams submits that that is a virtue of the form of relief that is sought, in that it is sought for the shortest possible period. However, the form of that relief seems to me to highlight the extent that this application is driven by a focus on the extraordinary general meeting, and upon voting rights at the extraordinary general meeting. It is difficult to avoid an inference that either Vulpes is content with that limitation to the injunctive relief it seeks because it has little interest in whether loans are converted to shares by Bright Agile after the extraordinary general meeting has occurred and it has maximised its opportunity to obtain control of Balamara at that extraordinary general meeting; or, alternatively, it has sufficient confidence in its ability to obtain that control, if an interlocutory injunction is granted to that date, so as not to require the protection of an interlocutory injunction beyond that date.

22. Mr Braham, who appears for Balamara also refers to these matters and, in particular, to the form of the injunction and the issues as to the impact of the relief that is sought in the context of the extraordinary general meeting, to contend that the relief that is sought by Vulpes goes beyond the preservation of the status quo, so as to seek to interfere with the conduct of the extraordinary general meeting, and that these matters support exercising a discretion to decline the interlocutory relief.

Determination

29. I have noted above that this is a complex and difficult application and the issue of the balance of convenience which here arises seems to me to have a degree of complexity. I pause to note that this complexity, in part, arises because of the existence of the extraordinary general meeting and the need for the Court to assess the application for injunctive relief in the context of that extraordinary general meeting. The difficulties which arise in that regard, and the complexities in the balance of convenience, largely result from the fact that Vulpes wishes both to conduct the extraordinary general meeting and to restrain any conversion of loans to shares by Bright Agile at the same time as doing that. But for the difficulties that arise from the extraordinary general meeting in that time frame, I might well have granted the relief that was sought by Vulpes.

30. So far as the question of the serious question to be tried is concerned, I have noted above that it is common ground that a serious question to be tried exists. I will assume, without deciding, that Vulpes has a strong case for relief in exercising the discretion involving the weighing of the strength of Vulpes' case and the balance of convenience. However, I am persuaded that the balance of convenience is such that I should not grant the relief sought, even assuming the strength of Vulpes’ case. I have given significant weight in reaching that conclusion to the extent to which the Court can ultimately reverse the outcome of either giving, or not giving, injunctive relief in the relevant circumstances, where either course will have a significant impact upon events.

31. It seems to me that to grant the interlocutory relief sought by Vulpes will have significant consequences, which it is not possible for the Court to reverse, and which are ultimately not consistent with maintaining the status quo, but would instead advance the interests of Vulpes at the expense of the interests of shareholders who may take a different view to Vulpes, including at least Bright Agile. If the Court were to grant the interlocutory relief sought by Vulpes, then Bright Agile is fixed in the diluted position which presently exists without the opportunity to exercise conversion rights, which I recognise are contested. In those circumstances, Vulpes' opportunity to obtain control of Balamara, by displacing its existing board other than Mr Von Bernstorff and appointing its nominees to the board, is maximised.

32. From the Court's perspective, it is not relevant to ask who should control Balamara, and it would not be a matter for concern if Vulpes were to succeed in obtaining control of Balamara. The difficulty, however, is that, if the interlocutory injunction were wrongly granted, because it emerged at a final hearing that the allegations for which Vulpes contends are not established, and Mr Leung and Bright Agile were ultimately successful in their defence of the proceedings, there is nothing that the Court could then do to undo the effects of the change of control which the interlocutory injunction had facilitated. In particular, there is nothing that the Court could then do to reverse any changes in the current position of Balamara which had been brought about by a new board.

33. On the other hand, if the interlocutory injunction is not granted, then, as Mr Williams points out, it is predictable that Bright Agile will proceed to a conversion of the contested loans and that conversion will be challenged in the substantive proceedings. It will, to that extent, be more difficult for Vulpes to succeed in removing Balamara’s existing board other than Mr Von Bernstorff at the extraordinary general meeting, although it will not be impossible to do so if it has sufficient support from other shareholders. That result is reversible, by reason of the undertaking given to the Court by Bright Agile and the fact that, if successful in the substantive proceedings, Vulpes may then proceed to call another extraordinary general meeting and again seek to replace the board at that point. The undertaking now offered by Bright Agile to the Court has the result hat, if the Court ultimately finds that Bright Agile should not have been entitled to convert its debt to equity, whether in respect of the 27 September Notice which is disputed, or the 7 July Agreement that is also disputed, Bright Agile will not oppose the reversal of that conversion of debt to equity. That reversal can readily be achieved by orders directed to Bright Agile and Balamara which bring about that result.

34. In those circumstances, it seems to me that the grant of the relief which Vulpes seeks, by way of interlocutory relief, has consequences which cannot be reversed. The consequences or refusing that relief, on the other hand, can be reversed. In these circumstances, albeit the matter is difficult, and it may be that different judges would have formed different views because of the difficulty of the balancing exercise that is required, I am not satisfied that the injunctive relief that was sought by Vulpes should be granted.

Orders

35. Subject to hearing from the parties as to the form of orders, I am inclined to think that I should note the undertaking of Bright Agile to the Court and, on the basis of that undertaking, decline to make the order which is sought in paragraph 1 of Vulpes’ short minutes of order, and make the orders which are sought in paragraphs 2-4 of Vulpes’ proposed short minutes of order where they are not contested and are orders that can properly be made by the Court.

36. I am inclined to think, although I will again hear the parties if they wish to be heard, that this is a situation where should it be either no order as to costs or costs should be reserved to the conclusion of the proceedings. This has been, as I have noted, a very complex application where Vulpes has amended the form of relief that it seeks, twice, in the course of the application; Mr Leung and Bright Agile have offered an undertaking in the course of the application, which had not been given prior to its commencement, which has had a significant impact on the outcome of the application; and Bright Agile had previously had made a compromise proposal, which was not accepted by Vulpes and was then withdrawn by Bright Agile on the morning of the application. The ground beneath all parties and the Court has continuously shifted and it is difficult to say that the result is other than a mixed one in a situation where circumstances have continuously changed.

37. Having briefly heard Counsel further as to the form of relief, I note the following matters and make the following orders:

1. THE COURT NOTES the undertaking of the Fifth Defendant to the Court given through its counsel, that in the event that the Court refuses the relief sought in the Plaintiff’s Interlocutory Process dated 13 October 2023 and the Fifth Defendant is found not to have been entitled to convert debt to equity pursuant to the conversion notice dated 27 September 2023 (Notice) and/or rights of conversion as contained in the ”Unsecured Loan Agreement” between the First Defendant and the Fifth Defendant dated 7 July 2023 (“Agreement”), and the Court would, but for the Fifth Defendant's change of position, grant equitable relief, the Fifth Defendant will not oppose any conversion of debt to equity pursuant to the Notice or the Agreement being reversed

The Court orders:

1. Upon the Plaintiff, and Mr von Bernstorff, through their counsel, providing the usual undertaking as to damages, order that, until further order, the First to Fourth Defendants, or any of them, be restrained from calling or holding any meeting of the directors of the First Defendant without first providing to Philipp Dominic Ludwig Michael Graf von Bernstorff, three clear business days in advance of the holding of such meeting:

(a)    notice, in writing, of the meeting;

(b)    an agenda, in writing, of items to be considered at the meeting; and

(c)    any documents to be tabled or considered at the meeting or, if such documents cannot be provided, an explanation in writing as to why not.

1. Order the First Defendant provide to Mr von Bernstorff and the Plaintiff minutes and recordings of any directors’ meeting since 3 July 2023 (save for those already exhibited to affidavits) at which Mr von Bernstorff has not been in attendance, along with copies of the documents tabled at that meeting (save for any documents, minutes or recordings that record the giving or obtaining of legal advice by the First Defendant in respect of these proceedings).

2. Order the First Defendant provide to Mr von Bernstorff and the Plaintiff copies of any loan agreements, convertible notes or share allocations entered into or granted by the First Defendant on or after 7 July 2023.

3. Costs be reserved.

4. Stand the matter over to 12:30pm on Monday 6 November 2023 with a view to making all orders to bring the matter to hearing and allocating a hearing date.

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Decision last updated: 09 November 2023