Kipoi Holdings Mauritius Limited v Robert Michael Kirman as joint and several administrators of Tiger Resources Limited (Subject to Deed of Company Arrangement) [No 5]
[2025] WASCA 60
•17 APRIL 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KIPOI HOLDINGS MAURITIUS LIMITED -v- ROBERT MICHAEL KIRMAN as joint and several administrators of TIGER RESOURCES LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) [No 5] [2025] WASCA 60
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 1 APRIL 2025
DELIVERED : 8 APRIL 2025
PUBLISHED : 17 APRIL 2025
FILE NO/S: CACV 106 of 2021
BETWEEN: KIPOI HOLDINGS MAURITIUS LIMITED
Appellant
AND
ROBERT MICHAEL KIRMAN as joint and several administrators of TIGER RESOURCES LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
ROBERT CONRY BAUER as joint and several administrators of TIGER RESOURCES LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
First Respondents
YINGKOU YANGZHOU TRADE CO LTD
Second Respondent
JINJI RESOURCES FINANCE PTY LTD
Third Respondent
RICHARD SCOTT TUCKER
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: ROBERT MICHAEL KIRMAN as joint and several administrators of TIGER RESOURCES LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) -v- YINGKOU YANGZHOU TRADE CO LTD [No 2] [2021] WASC 354
File Number : COR 69 of 2021
Catchwords:
Appeal - Practice and procedure - Application for injunction to preserve the subject matter of the litigation pending determination of the appeal - Application for a freezing order - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 444GA
Rules of the Supreme Court 1971 (WA), O 52A
Supreme Court Act 1935 (WA), s 59(4)
Result:
Application for an injunction pending determination of the appeal granted in part
Category: B
Representation:
Counsel:
| Appellant | : | J J Hutton SC, P A Walker & A Pieniazek |
| First Respondents | : | No appearance |
| Second Respondent | : | S J Maiden QC, J G Abberton, B J Willesee & N J Wallwork |
| Third Respondent | : | S J Maiden QC, J G Abberton, B J Willesee & N J Wallwork |
| Fourth Respondent | : | No appearance |
Solicitors:
| Appellant | : | HWL Ebsworth |
| First Respondents | : | Norton Rose Fulbright Australia |
| Second Respondent | : | Lavan |
| Third Respondent | : | Lavan |
| Fourth Respondent | : | Jones Day |
Case(s) referred to in decision(s):
Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35
Delta Petroleum (Caribbean) Ltd v British Virgin Islands Electricity Corp [2020] UKPC 23
Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [2018] WASCA 174; (2018) 53 WAR 201
Kipoi Holdings Mauritius Ltd v Kirman and Bauer as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [2021] WASCA 194
Kipoi Holdings Mauritius Ltd v Kirman and Bauer as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [No 4] [2024] WASCA 145
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
REASONS OF THE COURT:
On 8 March 2025, we made orders which allowed in part the appellant's application in an appeal filed on 25 February 2025 for injunctive relief. We said that we would publish written reasons for making those orders later. These are our reasons for making those orders.
Background
This appeal concerns a Deed of Company Arrangement dated 19 February 2021 (DOCA) entered into by Tiger Resources Ltd (Tiger), a company incorporated in Australia. The DOCA provided for the transfer of all shares in Tiger to the second respondent (YYT), the proponent of the DOCA, for nil consideration. The fourth respondent (Mr Tucker) held about 99% of Tiger's issued shares. The appellant (Kipoi) claimed to have a beneficial interest in about 24% of Tiger's issued shares which were held by Mr Tucker. Kipoi opposed the making and implementation of the DOCA.
A condition precedent to completion of the DOCA was the grant of approval by the Supreme Court for the first respondents (Deed Administrators) to transfer the Tiger shares for nil consideration pursuant to s 444GA(1)(b) of the Corporations Act 2001 (Cth). That section provides that the administrator of a deed of company arrangement may transfer shares in the company if the administrator has obtained the leave of the court. The DOCA enabled YYT to immediately terminate the DOCA if any condition precedent was not satisfied by 31 December 2021.
On 23 April 2021, the Deed Administrators applied to the General Division of this court for leave to transfer all the issued shares in Tiger to YYT for nil consideration. That application was heard by the master from 17 ‑ 19 and 23 August 2021. On 28 October 2021, the master granted the Deed Administrators' application. The primary reasons indicated that leave was granted on the basis that the Tiger shares had nil value.
On 3 November 2021, Kipoi instituted the current appeal against the order granting leave to transfer the Tiger shares to YYT for nil consideration under s 444GA(1)(b) of the Corporations Act. Kipoi also applied for a stay of the master's orders pending determination of the appeal. On 10 November 2021, this court granted the stay subject to Kipoi paying $AUD 8,983,000 into court by way of security for Kipoi's undertaking as to damages.[1] However, that stay ceased to operate on 17 November 2021 when Kipoi failed to pay the security amount into court. The Tiger shares were transferred to YYT on 22 November 2021.
[1] Kipoi Holdings Mauritius Ltd v Kirman and Bauer as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [2021] WASCA 194 (Kipoi No 1).
The appeal was heard in August 2023. Kipoi sought orders setting aside the master's orders and substituting an order dismissing the Deed Administrators' application under s 444GA(1)(b) of the Corporations Act. Kipoi also sought an order for the transfer of the Tiger shares from YYT to the former shareholders.
This court delivered reasons in the appeal on 22 November 2024.[2] In Kipoi No 4 this court was unanimously of the view that the master erred by failing to provide legally adequate reasons in respect of the central issues in dispute at trial. This court was also unanimously of the view that the master erred in treating one of the expert witnesses as giving an opinion as to the value of the Tiger shares, and finding that opinion should be accepted, when it was not open on the evidence to do so. In these two respects Kipoi's grounds of appeal were established.
[2] Kipoi Holdings Mauritius Ltd v Kirman and Bauer as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [No 4] [2024] WASCA 145 (Kipoi No 4).
However, this court was unanimously of the view that it was not able to decide, on the trial record and the additional evidence admitted in the appeal, whether the master should have made an order granting leave under s 444GA(1)(b) of the Corporations Act. That question was contested as turning on the valuation of the Tiger shares as at the date of the master's decision. That valuation exercise predominantly involved the valuation of copper mining assets held by Tiger subsidiaries in the Democratic Republic of the Congo, including a copper mine which had been placed into care and maintenance in April 2020 (Kipoi copper mine). This court concluded that the trial record and additional evidence did not provide a sufficient basis for the court to properly and justly determine the distressed sale discount which was to be applied to the mining assets in a liquidation scenario, or the appropriate copper price input, which were critical issues in dispute in relation to the valuation evidence.[3]
[3] See in particular Kipoi No 4 [742] (per Vaughan JA, Buss P & Mitchell JA agreeing).
This court therefore did not determine at that stage whether the order granting leave to transfer the Tiger shares to YYT under s 444GA(1)(b) of the Corporations Act should be set aside. Rather, on 22 November 2024, the court directed that the following question be tried and determined by a judge of the General Division pursuant to s 59(4) of the Supreme Court Act 1935 (WA):
What was the residual value of the ordinary issued shares in [Tiger], if any, as at 28 October 2021 (or such earlier date as close as possible thereto) based on a valuation of the assets and liabilities of the company by reference to a liquidation scenario rather than as a going concern?
In Kipoi No 4 the court also determined the disputed question of the availability of restitutionary relief requiring the transfer of the Tiger shares back to the former shareholders if the master's order granting leave under s 444GA(1)(b) of the Corporations Act is set aside. The majority held that the court could require the transfer of the Tiger shares from YYT to the former shareholders in those circumstances if the other requirements for reversal of judgment restitution were satisfied.[4] That majority view will prevail for the purpose of the future conduct of the appeal in this court.
[4] Kipoi No 4 per Buss P at [145] - [172] and Mitchell JA at [233]; Vaughan JA dissenting at [834] - [839].
The present injunction application
By an application in an appeal filed on 25 February 2025, Kipoi applies for an injunction restraining YYT from disposing of or otherwise dealing with its ordinary shares in Tiger without providing three weeks' written notice to Kipoi's solicitors. The injunction application is supported by Kipoi's signed undertaking as to damages if the injunction sought is granted. Kipoi also undertakes to pay $AUD 1 million into court, or to provide Kipoi with an irrevocable bank guarantee in that amount, as security for its undertaking as to damages.
The evidence in support of the injunction application is mainly contained in the affidavits of two of Kipoi's solicitors:
1.Alison Jane Robertson, sworn on 25 February 2025; and
2.Melissa Marydale Ferreira, sworn 14 March 2025.
The uncontradicted evidence in those affidavits establishes the following relevant facts.
YYT is a company limited by shares which was incorporated in the Republic of Mauritius on 23 January 2019. Its registered office address is in Mauritius. It has one corporate director (Pines Ltd, of which DTOS Ltd is the sole shareholder) and one individual director (Sun Shaoyuan) whose service addresses are given as YYT's registered office address in Mauritius. DTOS is recorded as YYT's registered agent with the same service address. Publicly available records from Mauritius do not disclose the ownership of shares in YYT or DTOS.
The corporate structure of which YYT forms part has been described in various affidavits sworn by Aiping Wei. In an affidavit sworn in the primary proceedings on 5 July 2021, Ms Wei described herself as a 'company manager, director and English‑Chinese translator' who was resident in the Republic of South Africa. Ms Wei deposed that she was a director of the third respondent (Jinji) and an employee of YYT and CGM Lishi Mining SARL (CGM) which were 'related entities of Jinji'.[5] In an affidavit sworn in the appeal on 5 November 2021 Ms Wei deposed that 'YYT and CGM are related entities with common ownership and form part of the wider CGM group of companies'.[6]
[5] Affidavit of Aiping Wei sworn 5 July 2021, par 3.1.
[6] Affidavit of Aiping Wei sworn 5 November 2021, par 1.
As at 5 March 2025, YYT still holds all of the ordinary shares in Tiger.
In her affidavit sworn on 5 November 2021, Ms Wei deposed to payments being made by CGM to Tiger subsidiaries Society d'Exploitation de Kipoi (SEK) and SASE Mining SARL (SASE) or their creditors. Ms Wei deposed to those payments having been made 'for the purpose of satisfying liabilities of SEK and ensuring that the [Kipoi copper mine] remains viable while on care and maintenance'.[7] In her affidavit sworn in the appeal on 5 November 2021, Dandan Dou (a manager of SEK, which operated the Kipoi copper mine with assistance from its related entity SASE) confirmed that the payments were 'used by SEK and SASE to fund the ongoing care and maintenance costs of the [Kipoi copper mine]'.[8]
[7] Affidavit of Aiping Wei sworn 5 November 2021, par 11.
[8] Affidavit of Dandan Dou sworn 5 November 2021, par 9.
Searches undertaken by Kipoi's solicitors have not revealed that YYT holds any real or personal property in Australia other than the Tiger shares. An affidavit of Ms Wei sworn in the appeal on 29 March 2022, but not read in the appeal, indicated that YYT may have entered into a loan and security relationship with CGM under which Tiger shares secured a loan by CGM to YYT of money used to fund mining operations in the Democratic Republic of the Congo. Otherwise, searches by Kipoi's solicitors have not revealed any disposal of or dealing with the Tiger shares since their transfer to YYT.
There is no publicly available information as to YYT's financial position or accounts, or whether it holds assets or operates any business outside Australia. YYT has not filed any evidence as to its current financial position, or any other evidence in opposition to the present application.
Basis for the injunction application
Kipoi puts its case for an injunction on two bases.
First, Kipoi relies on the inherent power of this court to make appropriate orders to prevent the abuse or frustration of its process in relation to matters within its jurisdiction. This is on the basis that the appeal could be rendered nugatory if the Tiger shares were disposed of or otherwise dealt with, as either the court might not be able to make an order for transfer of the Tiger shares back to the former shareholders or practical difficulties could arise in respect of the relief which could be granted on appeal. Kipoi says that its claim for restitutionary relief in relation to the Tiger shares can be seen to have a reasonable prospect of succeeding given this court's reasons in Kipoi No 4. It contends that the balance of convenience favours requiring YYT to give notice of any proposed dealing with the Tiger shares. Kipoi concedes that the interlocutory relief which could properly be granted on this aspect of its claim would be confined to the 24% of the Tiger shares in which Kipoi claimed an interest.[9]
[9] Appeal ts 01/04/2025, 745.
Secondly, Kipoi seeks what is in effect a variant of a freezing order under O 52A of the Rules of the Supreme Court 1971 (WA) for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a prospective judgment of the court will be wholly or partly unsatisfied. In this respect, Kipoi principally relies on a possible monetary judgment if restitutionary relief is not granted. It contends that there is a danger that such a monetary judgment would be unsatisfied if YYT disposed of the Tiger shares which are its only asset in Australia and the only substantial asset which Kipoi has been able to discover. Kipoi points to the likelihood that any consideration for the Tiger shares would be paid to YYT outside Australia. Kipoi says that the limited information which Kipoi has been able to ascertain about YYT supports the existence of that danger. Kipoi says that the freezing order it seeks should apply to all of the Tiger shares held by YYT on the basis that the current value of those shares (which might be affected by an encumbrance including security given to CGM) is unknown.
Injunction to protect the effective exercise of the court's jurisdiction
It is convenient to consider the first basis on which Kipoi seeks an injunction, which is to protect the effective exercise of the court's jurisdiction, before turning to the second basis for Kipoi's application.
As this court noted in Billabong Gold Pty Ltd v Vango Mining Ltd:[10]
It is … well established that this court has an implicit power to make orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of its jurisdiction. So it has been held that, where proceedings are pending in this court between the parties to an appeal, the Court of Appeal division of the court may exercise the court's power to make such procedural directions in those proceedings as are necessary for the purpose of preserving the integrity of the exercise of the court's appellate jurisdiction. This court has exercised statutory powers to extend time in order to preserve the subject matter of the appeal where doing so was within the scope of the statutory power. The court has also exercised a statutory power to vary a deed of company arrangement in order to preserve the effective exercise of its appellate jurisdiction. (citations omitted)
[10] Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35 [48].
In exercising that power in the present case, the relevant considerations are similar to those that arise on an application for a stay of primary orders pending the determination of an appeal (which is an aspect of the implicit power referred to in Billabong Gold). As this court noted in Kipoi No 1, those considerations include:[11]
3.The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
4.If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
5.Finally, a stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
[11] Kipoi No 1 [36].
In the present case, there is a real prospect that this court will make an order requiring the return of the Tiger shares to the former shareholders, or at least the percentage of the Tiger shares in which Kipoi claims a beneficial interest, if the order granting leave under s 444GA(1)(b) of the Corporations Act is set aside. The master has been held to have erred in his consideration of the valuation of the Tiger shares on which that order was based. The court has found that it is not in a position to determine the value of those shares for itself and has referred the valuation question to a judge of the General Division. If the answer to the question for determination in the s 59(4) referral is that the Tiger shares had value as at 28 October 2021, then there is a real likelihood that the order granting leave to transfer the Tiger shares to YYT will be set aside and substituted with either:
1.an order refusing leave to transfer the Tiger shares; or
2.if the court finds there is power to grant a conditional approval, an order granting leave to transfer the Tiger shares subject to a condition requiring payment of the value of the Tiger shares to the former shareholders.
This court has determined that it has power to order reversal of judgment restitution if leave to transfer the Tiger shares is refused or granted subject to a condition which is not satisfied. However, any disposal of or dealing with the Tiger shares by YYT before the final determination of this appeal could render the exercise of the court's appellate jurisdiction nugatory by preventing the transfer of the Tiger shares or otherwise creating practical difficulties which impact the capacity of the court to order the transfer of the Tiger shares.
The balance of convenience strongly favours the grant of the injunctive relief which Kipoi seeks. At this stage, Kipoi is seeking only that a period of notice be given prior to the disposal of or dealing in 24% of the Tiger shares (being the proportion of shares formerly held by Mr Tucker in which it claimed an interest). There is no evidence of any particular loss to YYT or any other person which is likely to be occasioned by that notice requirement. To the extent that the injunction exposes YYT or another person to a risk of loss, that risk can be addressed by an undertaking as to damages backed by security with a value of $AUD 1 million. On the other hand, if the injunction is refused and the Tiger shares are disposed of or otherwise dealt with, Kipoi may be unable to secure the retransfer of the Tiger shares from YYT to Mr Tucker to which this court may determine it is entitled.
YYT says that the fact that Kipoi failed to take advantage of the stay granted in 2021, by failing to provide the required security for its undertaking, is a factor which counts against the grant of interlocutory relief at this stage. While we agree that it is a relevant consideration, counting against the grant of relief, we are not persuaded that it outweighs the other considerations to which we have referred. The determination in Kipoi No 4 that the master erred in granting leave to transfer the Tiger shares, and the reference of the critical question of the value of Tiger shares to a judge of the General Division under s 59(4) of the Supreme Court Act, represent a material change in the circumstances which prevailed at the time the stay was granted in 2021.
YYT also refers to a submission advanced by senior counsel for Kipoi at the hearing on 15 August 2023 that any referral under s 59(4) of the Supreme Court Act should be made on the condition that YYT give an undertaking not to deal with the Tiger shares.[12] However, no application for an injunction was on foot at that time, and the issue was not the subject of any ground of appeal or notice of contention. In Kipoi No 4, Buss P and Mitchell JA did not deal with the submission. Vaughan JA noted the submission but did not need to deal with it given the view Vaughan JA adopted as to the unavailability of reversal of judgment restitutionary relief.[13] Contrary to YYT's submission, in these circumstances Kipoi is not to be regarded as being in the position it would have been in if it had previously made an injunction application which had been considered and refused.
[12] Appeal ts 15/08/2023, 282.
[13] Kipoi No 4[862] - [863].
There was a delay between the delivery of this court's reasons in Kipoi No 4 on 22 November 2024 and Kipoi's application for an injunction on 25 February 2025. However, that delay has not been shown to prejudice YYT and in all the circumstances of this litigation does not provide a proper basis for refusing injunctive relief at this time.
In the circumstances, on 8 April 2025 we determined that we would grant the injunction sought by Kipoi in relation to 24% of the Tiger shares held by YYT subject to Kipoi providing an undertaking secured by the payment of $AUD 1 million into court.
Freezing order
We turn to consider the second basis on which Kipoi puts its application, which is in effect to seek a variant of a freezing order under O 52A of the Rules of the Supreme Court.
A freezing order is defined in O 52A r 2(1) of the Rules of the Supreme Court to be an order made:
for the purpose of preventing the frustration or inhibition of the Court's process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.
Order 52A r 5 relevantly applies where an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in this court.[14] Order 52A r 5(4) relevantly provides for the court to make a freezing order against a prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a prospective judgment will be wholly or partly unsatisfied because the assets of the prospective judgment debtor might be disposed of or otherwise dealt with.
[14] Rules of the Supreme Court O 52A r (1)(b)(i).
The relevant principles as to the existence and exercise of the discretion to grant a freezing order were summarised by this court in Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq).[15] It is unnecessary to repeat that summary. The following points may be emphasised. First, the risk or danger to which O 52A r 5 refers is to one which is real or substantial, as opposed to a remote, speculative or theoretical possibility. Ultimately it is a question for the evaluation of the issuing court as to whether the degree of the danger or risk is sufficient to justify an order in the terms which the court is asked to make. Secondly, it is not necessary for an applicant for a freezing order to prove that the contemplated transaction is irregular or intended to prevent a prospective judgment from being satisfied. The purpose or regularity of the contemplated transaction goes to the exercise rather than the existence of the discretion to grant a freezing order. Thirdly, a freezing order is not made only for the purpose of providing security for judgment or preventing insolvency.
[15] Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [2018] WASCA 174; (2018) 53 WAR 201 [27] - [62].
In the present case, so far as the prospective judgment sought by Kipoi is an order for the return to Mr Tucker of the Tiger shares in which Kipoi claims an interest, the injunction in relation to 24% of the Tiger shares will adequately protect Kipoi's position. That alone is a significant and perhaps dispositive discretionary reason for refusing to make the freezing order sought under O 52A. However, Kipoi's primary position on its application was that there should be injunctive relief that applied to the whole of the Tiger shares. As Kipoi accepted that such relief was not available on the first asserted basis for injunctive relief, Kipoi maintained that it was entitled to a freezing order under O 52A which would apply to all of the Tiger shares.
Kipoi's claim for a freezing order under O 52A over all Tiger shares is focused on the prospect of a monetary judgment being obtained if restitution (which is Kipoi's primary claim for relief) is not ordered or is not available.
In part, Kipoi relies on the prospect that this court might substitute an order granting leave to transfer the Tiger shares to YYT under s 444GA(1)(b) of the Corporations Act, subject to a condition that YYT pay the former shareholders an amount reflecting the value of the Tiger shares at the transfer date. The prospect that such an order might be substituted is discussed by members of this court in Kipoi No 4, but those reasons did not determine whether the court had power to grant leave subject to such a condition. It is unnecessary to address the question of the court's power in these reasons. That question must await further argument after the outcome of the s 59(4) referral. The present difficulty for Kipoi is in explaining how the imposition of such a condition could create an enforceable obligation by YYT to pay the amount identified in such a condition to Kipoi or Mr Tucker.
If, assuming there was power to do so, the court granted conditional leave to transfer the Tiger shares but the condition was not satisfied, then the leave to transfer the Tiger shares might not take effect or might lapse. However, Kipoi does not explain how s 444GA(1)(b) could create a legal liability for YYT to pay a former shareholder a specific amount.
In oral submissions before us, senior counsel for Kipoi submitted, by reference to submissions advanced in an earlier appeal hearing, that if the court substituted an order refusing leave to transfer the Tiger shares or granted leave subject to a condition that was not satisfied, the court might order the payment of compensation in circumstances where proprietary restitution was not possible.[16] We will assume, without deciding, that such an order would be a prospective cause of action that is justiciable in the court for the purposes of O 52A r 5 of the Rules of the Supreme Court. However, the orders sought by Kipoi in the appeal do not include an order that YYT pay compensation if restitution is not available.[17] The submissions advanced in support of the contention prior to publication of the reasons in Kipoi No 4 were limited. In its written reply to YYT and Jinji's notice of contention, Kipoi submitted:[18]
Finally, even if the Court takes the view that the arguments made by YYT and Jinji have some force, they could not preclude all restitutionary relief. At most, they could preclude a retransfer of the shares in specie. Where retransfer in specie is impossible or impracticable the appropriate course is to require the respondent to pay to the successful appellant a sum of money that reflects the monetary value of the property it has received. [Delta Petroleum (Caribbean) Ltd v British Virgin Islands Electricity Corp [2020] UKPC 23; [2021] 1 WLR 5741 [54]]. The evidence before this Court is not capable of establishing the value of the shares on receipt (nor when the security was granted). Amongst other things, it seems that by the time of receipt, or shortly thereafter, the copper mine was fully operational. Accordingly, if the Court considers that there is merit in any of the matters raised by YYT, it should allow the appeal and remit the proceedings so that a determination can be made of the current value of the shares for the purposes of making a personal restitutionary award.
[16] Appeal ts 01/04/2025, 757.
[17] See the amended appellants case at White AB 43.
[18] Appellant's amended reply to part 4 of the second and third respondent's answer, par 42 (White AB 144).
In oral submissions at the main hearing of the appeal, Mr Hutley SC for Kipoi maintained this paragraph of the written submissions but said that the issue of compensation rather than restitution could not arise in the circumstances of this case because there was no longer a change of position defence.[19] Later, Mr Hutton SC for Kipoi also submitted that monetary restitution instead of property restitution was not open as a matter of law.[20]
[19] Appeal ts 15/08/2023, 285.
[20] Appeal ts 17/08/2023, 493 - 494.
In Kipoi No 4,[21] Vaughan JA observed that when a judgment is set aside on appeal, there is no right to compensation as against the respondent but only to restitution.[22] Vaughan JA also referred to a submission on behalf of YYT which contemplated a requirement for payment of a 'just amount' as a condition of the grant of leave under s 444GA(1)(b) of the Corporations Act, rather than a monetary judgment.[23] Assuming, without deciding, that such relief is available, again Kipoi does not explain how the imposition of a condition for payment of a 'just amount' would create a legal liability for YYT to pay a former shareholder a specific amount.
[21] Kipoi No 4 [768].
[22] Citing Meerkin & Apel v Rossett Pty Ltd (No 2) [1999] VSCA 10; [1999] 2 VR 31[7], [9], [15]. See also National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386, 597, a passage approved by the Privy Council in Delta Petroleum [53].
[23] Kipoi No 4 [673], [677] - [679], [864] - [865], [868] - [869], [871].
In assessing the exercise of the court's discretion under O 52A r 5, it is relevant to consider the prospect that the judgment will be given and the prospect that it may be unsatisfied. The problem for Kipoi in the present case is that its claim for a freezing order over all of the Tiger shares depends on the prospect of Kipoi obtaining a judgment creating an enforceable obligation on the part of YYT to make a payment. While Kipoi has made submissions that such an order is theoretically available, it has not formulated and advanced a claim for such an order in the present appeal. Nor has Kipoi attempted, even in general terms, to quantify the value of such a claim or the current value of the 24% of the Tiger shares to which the injunction referred to at [31] above will apply, and the sufficiency of those shares to satisfy any monetary judgment which is likely to be made.
We accept that the disposal of or other dealing with the Tiger shares by YYT would create a risk that any prospective monetary judgment might not be satisfied. The evidence discoverable by Kipoi suggests that the Tiger shares are YYT's only significant asset, at least in Australia. There is no reason to think that any consideration for the disposal of or other dealing with the Tiger shares would be paid to YYT in Australia. YYT is a foreign company whose ownership, control and financial affairs are opaque. YYT has not put forward any evidence as to its business or assets which could assuage the concerns raised by the evidence produced by Kipoi.
In assessing the degree of danger and risk, it is relevant to note that YYT could have disposed of the Tiger shares at any time since they were transferred to it in November 2021. YYT has not done so. There is no suggestion in the evidence before the court that YYT has otherwise dealt with the Tiger shares without notice to Kipoi. While Kipoi refers to an indication in the filed but unread affidavit sworn by Ms Wei on 29 March 2022 of security being granted over the Tiger shares to CGM in March 2022, that affidavit also annexes correspondence giving Kipoi notice of that proposed transaction in November 2021.[24] These are matters that weigh against the relief sought by Kipoi.
[24] Affidavit of Aiping Wei sworn 29 March 2022, pars 23 - 25.
Kipoi also points to evidence which it discovered after the publication of the reasons in Kipoi No 4 to the effect that SEK was conducting ore crushing activity at the Kipoi copper mine from June to November 2021. Kipoi says this evidence is inconsistent with the mine being kept in care and maintenance at that time. Kipoi invites the inference, from evidence of CGM's funding of SEK on behalf of YYT and the relationship between CGM and YYT, that YYT must have been aware of this ore crushing activity.
It is unnecessary for the purpose of resolving the current application for a freezing order to determine whether that inference should be drawn. If the inference was drawn, that might indicate that YYT misled the master and this court where questions of valuation have proceeded on the basis that the Kipoi copper mine was in care and maintenance at the relevant time. However, that would say little of the prospect that YYT might dispose of or otherwise deal with the Tiger shares so that a prospective judgment would be unsatisfied.
In considering whether to make a freezing order, it is also necessary to bear in mind that a freezing order is not made only for the purpose of providing security for judgment. The injunction referred to at [31] above will provide Kipoi with a substantial measure of protection, although that protection will not be complete. It is also relevant to bear in mind that Kipoi had the opportunity to wholly protect its position when the court granted the stay of the order granting leave under s 444GA(1)(b) of the Corporations Act prior to the Tiger shares being transferred to YYT. Kipoi failed to take advantage of that opportunity when it failed to provide security for its undertaking as to damages which was a condition of the stay. To the extent the orders now made by the court give Kipoi less than complete protection, its own previous forensic decisions have produced that result.
On balance, weighing all of the matters to which we have previously referred, on 8 April 2025, we were not satisfied that this was an appropriate case to exercise the discretion conferred by O 52A r 5 of the Rules of the Supreme Court to make a freezing order over all the Tiger shares held by YYT. We gave particular significance to the inchoate nature of any claim by Kipoi which might produce a prospective monetary judgment that might be partly unsatisfied because of the disposal of or other dealings with more than 24% of the Tiger shares. Further, in all the circumstances, we were not satisfied that that the danger or risk, considered in light of the strength of the prospective cause of action, was sufficient to justify an order which restrained dealings in all Tiger shares, even though the order sought by Kipoi only required prior notice of proposed transactions.
Orders
For the above reasons, on 8 April 2025 we considered it to be in the interests of justice to limit the relief granted on Kipoi's application to an injunction restraining YYT from disposing of or otherwise dealing with more than 76% of the Tiger shares without notice to Kipoi. We limited the extent of that notice to 7 days which, given the considerable legal resources which Kipoi has at its disposal, should be sufficient time to enable a further protective application to be made.
We also considered it appropriate that a secured undertaking as to damages be provided. As Kipoi's undertaking filed with its application in an appeal was only given in the event that the orders sought in Kipoi's application were granted, and that application was only partly successful, a new written undertaking was required. We considered that the undertaking should be in the usual form provided for in PD 4.3.4 of the Consolidated Practice Directions. Senior counsel for Kipoi indicated that there was no reason that the required security could not be by payment of money into court.[25]
[25] Appeal ts 01/04/2025, 750.
Therefore, on 8 April 2025, we made the following orders:
1.Until the final determination of this appeal or further order, the second respondent is restrained from:
(a)disposing of its ordinary shares in Tiger Resources Ltd (ACN 077 110 304) (Tiger) so as to reduce its shareholding in Tiger to 24% or less of the issued shares in Tiger; and
(b)otherwise dealing with its ordinary shares in Tiger in a way that affects more than 76% of its shareholding,
unless it provides at least 7 days' prior written notice of the proposed disposal or other dealing to the appellant's solicitors.
2.By 4pm on 11 April 2025 the appellant must:
(a)file and serve a written undertaking with its common seal affixed in the presence of an authorised officer in the following terms:
Kipoi Holdings Mauritius Ltd undertakes to the court that it will pay to any party restrained or affected by the restraints imposed by order 1 of the orders made by the Court of Appeal on [date], or any interim continuation thereof, such compensation as the court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the court or in accordance with such directions as the court may make and to be paid in such manner as the court may direct.
, and
(b)pay the sum of AUD$1,000,000 into court as security for the undertaking referred to in paragraph (a) of this order.
3.If the appellant does not comply with order 2 of these orders, the injunction granted by order 1 is discharged with effect from 4pm on 11 April 2025.
4.The parties have liberty to apply to vary or discharge orders 1 to 3 of these orders on 72 hours' notice to the other parties.
5.The appellant's application in an appeal filed on 25 February 2025 is otherwise dismissed.
6The costs of the application in an appeal filed on 25 February 2025 be in the cause of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
17 APRIL 2025
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