KSG Investments Pty Ltd v Openmarkets Online Trading Pty Ltd
[2020] VSC 186
•17 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2018 00098
| KSG INVESTMENTS PTY LTD (ACN 155 386 413) | Plaintiff |
| v | |
| OPENMARKETS ONLINE TRADING PTY LTD (ACN 159 661 453) | Defendant |
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JUDGE: | Nichols J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 April 2020 |
DATE OF RULING: | 17 April 2020 |
CASE MAY BE CITED AS: | KSG Investments Pty Ltd v Openmarkets Online Trading Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VSC 186 |
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PRACTICE AND PROCEDURE – Leave sought to amend defences – Thomas v Powercor Australia Limited [2011] VSC 391 – Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.01.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Clarke QC Ms K Wangmann | NOH Legal |
| For the Defendant | Mr J Evans QC | TPS & Co Law |
| Mr T Jeffries |
HER HONOUR:
By a summons issued on 14 April 2020 the defendant (Openmarkets) seeks leave to amend its defence by adding to it, three sets of positive allegations not previously made.[1] This proceeding is set down for trial commencing 21 April 2020.
[1]Leave is sought to add new sub-paragraphs A, B and C to sub-paragraphs 6(b)(v) of the defence dated 2 October 2018, and to add new sub-paragraphs (b), (c) and (d) to paragraph 7 of the defence. There are some additional, minor and technical amendments which are not opposed.
For the reasons that follow, leave to amend the defence:
(a) by adding proposed sub-paragraph 6(b)(v)(B), insofar as that paragraph refers to the issue of shares to Paritech Pty Ltd, is refused;
(b) by adding proposed sub-paragraph 7(c), is refused;
(c) to otherwise make the amendments set out in the draft defence annexed to the affidavit of Terrance Paul Sperber sworn 14 April 2020, is granted.
Background
The proposed amendments to the defence were first raised by Openmarkets on 7 April 2020 when it gave notice to the plaintiff that it intended to make this application. The application is opposed.
To explain the context of the amendments it is necessary to briefly set out the nature of the plaintiff’s claim.
The plaintiff (KSG) is a minority shareholder Openmarkets, which operates a digital trading platform for trading in Australian securities markets and provides brokerage and other services. The business of Openmarkets was established in 2012 and the company was incorporated in July 2012. In about mid-2012 Kosmas Galtos, KSG’s shareholder and director, was engaged to establish various aspects of Openmarkets’ business. He was appointed the company’s CEO in 2012 and between July 2012 and April 2013 was a director of Openmarkets.
KSG was initially the sole shareholder in Openmarkets. Emlyn Scott, who was also heavily involved in the establishment of the company, will give evidence at trial that Mr Galtos was engaged to assist Mr Scott and others to set up the company and the business. Mr Galtos was not initially paid a salary but following the creation of the company he was given a 9.5% share, through KSG.
In October 2012 Openmarkets and six initial shareholders including KSG, entered a Shareholders’ Agreement. The Agreement contained terms governing the issuing of new securities. Clauses 11.1 – 11.6 of the Agreement imposed requirements to the following effect (which are generally described here):
(a) a requirement that written notice be given to existing shareholders of proposed new allotments of shares;
(b) a requirement to first offer any new securities to existing shareholders in their respective shareholding proportions;
(c) entitlements for existing shareholders to subscribe to new securities not taken up by other existing shareholders, according to a process set out in the Agreement (‘mop up provisions’);
(d) exemptions from the processes by which new securities were to be issued in respect of certain classes of acquisitions or certain classes of new investor, subject to new investors entering into a deed of accession prior to the date of issue.
In relation to the latter provision, clause 11.7(5) relevantly provided that clause 11 did not apply to:
An issue of new securities to a major new investor in the company, strategic business partner of the company or in connection with the acquisition of a company, assets or technology, in each case as approved by a Major Shareholder Resolution and provided that the new shareholder or shareholders enter into a deed of accession prior to the issue that takes effect at the time of the issue.
For the purposes of the present application it is sufficient to note that KSG’s case is that Openmarkets breached the Shareholders’ Agreement by making numerous share allotments between July 2013 and March 2016 without complying with the procedures stipulated by the Shareholders’ Agreement. KSG’s claim is that neither it nor Mr Galtos received notice of the proposed new allotments. KSG alleges other breaches of the Agreement that are not material for present purposes.
KSG says that by reason of the company’s breach of the Agreement, it has suffered loss and damage, essentially because it has lost the opportunity to participate in the share issues in which it was entitled to participate. It says that it that it would have subscribed for each and every share issue offered to it, including any “shortfall” shares not taken up by other members.
The Shareholders’ Agreement was terminated in March 2016. KSG says that on termination of the Agreement it would have sold all of its shares in Openmarkets. Its loss is measured in part by reference to the share price said by KSG to have been obtainable at that time.
There are 19 share allotments the subject of KSG’s claim. Among them are allotments to Mr Thoo Chow Fah (of 37,000 shares, in July 2013) and to Paritech Pty Ltd (of 10,500 shares, also in July 2013).
Proposed Amendments
On the question of the alleged breaches of the Agreement, the defence, hitherto, has been essentially limited to non-admissions and denials. By the proposed amendments to paragraph 6 of the defence, Openmarkets wishes to contend that clause 11 did not apply to the allotments to Too Chow Fah and to Paritech Pty Ltd. Specifically, each of those allotments fell within clause 11.7, because:
(a)in relation to Thoo Chow Fah, Mr Thoo was a “major new investor” in Openmarkets, in that in after the issue of shares to him, he held 17.2% of all ordinary shares in the company, and, as required by the Agreement, he entered into a deed of accession. The share issue was approved by a Major Shareholder Resolution;
(b)in relation to Paritech Pty Ltd, the issue of shares to it was in connection with the acquisition of source code and intellectual property from Paritech, an existing shareholder. Accordingly, the issue of shares was in connection with “assets or technology”. The share issue was approved by a Major Shareholder Resolution.
On the question of the loss suffered by the plaintiff, and the cause of that loss, the existing defence alleges that any breaches by the defendant (which are denied) are not causally connected to any loss suffered by the plaintiff (also denied) is too remote or was caused by the plaintiff itself, which was not ready willing or able to take up the alleged lost opportunity to purchase shares in Openmarkets.
By the proposed amendment to paragraph 7 of its defence Openmarkets wishes to contend, in response to the plaintiff’s contention that it would have sold all of the shares owned by it shortly after 11 March 2016, that (in summary), Openmarket’s Constitution provided that its directors may in their discretion, without giving reasons, refuse to register a transfer of shares; that the directors would have sought to elicit new equity in place of accepting share transfers, and that accordingly, it is more likely than not that KSG would not have been able to sell any or all of its shares at any time after August 2016.
Procedural History
The procedural history of this litigation is relevant to the disposition of the application. Shortly stated, it is as follows.
The proceeding was issued in May 2018. KSG filed its statement of claim in May 2018 and Openmarkets filed its defence in October 2018. The defence has remained in that form until this time.
In June 2019 Sifris J fixed this proceeding for trial commencing on 23 March 2020. At that time orders were made, by consent, requiring KSG to file its lay witness statements by August 2019 and any expert report by September 2019; and for Openmarkets to file its lay evidence by September 2019 and any expert report by October 2019. KSG’s witness statements were not filed in compliance with the June 2019 orders. On 15 November 2019, consequent upon an application by Openmarkets, the Court ordered, among other things, that the time by which KSG must file and serve all its lay and expert witness statements was extended to 13 December 2019. Openmarkets was to file its lay and expert evidence by 14 February 2019.
In compliance with the November 2019 orders, KSG filed its lay witness statements on 13 December 2019 (statements of Kosmas Galtos and his father, Con Galtos). On 23 December 2019 KSG filed an expert report from Mr Michael Smith of the CFAS advisory. Mr Smith’s evidence goes to the quantification of the plaintiff’s damages.
KSG’s case that it would have sold all of its shares in Openmarkets upon termination of the Shareholders’ Agreement all in (or shortly after) March 2016 was set out, for the first time, in Kosmas Galtos’ witness statement and in the expert witness statement of Mr Smith (in that case, that proposition was identified as an assumption on which Mr Smith should make his calculation of the quantification of KSG’s loss). That case had not been pleaded in KSG’s statement of claim.
Openmarkets did not file its evidence by 14 February 2020. On 26 February Openmarkets filed a summons seeking orders vacating the trial date and striking out the plaintiff’s statement of claim or alternatively, that the plaintiff provide complete particulars of the allegations in its claim as to the breaches of Shareholders’ Agreement and the loss and damage said to have been suffered by the plaintiff as a result of each of those breaches. The summons was heard on 3 March 2020. On that occasion, the plaintiff’s counsel accepted that there were inconsistencies between the pleaded claim and the claim described in the evidence, and the plaintiff committed to the limitation of its case as described in its evidence. Consequent upon orders made on that day, KSG filed further and better particulars of its claim setting out the share allotments relied upon and the calculation of its loss.
On this application Openmarkets submitted, and I accept, that it was not until the filing of KSG’s evidence, which was complete by 23 December 2019, that Openmarkets was put on notice of KSG’s claim that it would have sold its shares in or after March 2016 and accordingly it was not until that time that Openmarkets was in a position to address that claim (either in its evidence or by amending its pleading). Although the plaintiff did not amend its claim (by providing further particulars) until March 2020, the defendant accepted on the hearing of the application on 3 March 2020 that the way in which KSG now put its loss was sufficiently clear by 23 December 2019, by virtue of the witness statement of Mr Galtos and the expert report of Mr Smith.
On 30 March and 3 April 2020 Openmarkets filed its evidence – witness statements of Emlyn Scott (who, as mentioned earlier, has been involved with the company since its inception and who controls one of Openmarket’s shareholders) and Andrea Marani (Openmarkets’ former chief operating officer) and an expert report of Ms Dawna Wright, on the question of the plaintiff’s loss.
It is not in dispute that Openmarkets has not any time before now, sought to amend its defence.
Governing principles
Pursuant to order 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 the Court may grant leave to amend a pleading at any time in a proceeding for the purposes of determining the real questions in controversy between the parties. The relevant principles are well understood. The decision whether or not to grant leave is discretionary, and the appropriate disposition will naturally depend on the facts of the instant case. Factors that should inform the exercise of the discretion include the following:
(a)A starting point for determining an application to amend is that all amendments should be made and allowed as are necessary to ensure that the real questions in controversy between the parties are decided. So much follows from the language of Order 36 rule 1. Other consideration also apply, however.
(b)Leave will not be granted where the amendment will cause an irreparable element of unfair prejudice to the opposite party.[2]
(c)Parties are to be afforded a sufficient opportunity to identify the issues they seek to agitate. However, parties are not entitled to an unlimited opportunity to amend their case, subject to the price of paying the costs thrown away by reason of the amendment in order to “cure” any prejudice. That is particularly, so where litigation is advanced.[3] Delay and adjournments may raise questions not only of private prejudice (impacting the rights of parties) but of the public interests in the administration of justice. Undue delay, wasted costs and adjournments may (depending upon the circumstances of the case) undermine confidence in the rule of law.[4]
(d)A party seeking leave is expected to provide a satisfactory explanation of the reasons for the amendment.[5]
(e)A late application for leave to amend, such as shortly before trial, must overcome the fact of substantial delay, wasted costs and court time.[6]
[2]Thomas v Powercor Australia Limited [2011] VSC 391 (Thomas), [12] (J Forrest J).
[3]Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (Aon) at 217, [111]–[113].
[4]Aon at 189 [24] (French CJ).
[5]Thomas, [12].
[6]Aon.
The primary question remains, what is it that the interests of justice dictate?[7]
[7]Thomas, [12].
Analysis
I note at the outset that no party sought an adjournment of the trial. The defendant maintained that the amendments to its defence ought be allowed including because they did not give rise to any prejudice to the plaintiff, who ought be able to engage with the matters raised, by and large, without the need for further evidence or discovery, and in any case without the need for an adjournment.
The plaintiff’s position was that it was entitled to proceed with the trial on 21 April 2020 and that the amendments would cause it irremediable prejudice in the preparation and presentation of its case, in particular in the case of two of the three proposed amendments, to which it could not adequately respond without an adjournment.
By way of explanation for the application having been brought very shortly before trial (the defendant having put the plaintiff on notice of the proposed application 13 days before the expected commencement date[8]), the defendant’s solicitor said in his affidavit that:
The matters the subject of the proposed amendments became apparent to the defendant’s legal team as part of the preparation of the defendants witness statements. Considering the proposed amended defence arises out of documents that have already been discovered, I do not envisage there to be any prejudice suffered by the plaintiff by virtue of the amendments.
[8]On 15 April 2020 I deferred the commencement of the trial by one day because of the late filing, by both parties, of the court book, opening submissions, chronology and objections to evidence (none of which had been provided to the Court by that time).
It should be observed that the defendants’ lay witness statements were filed on 30 March 2020. In the context of an imminent trial date, notice of the proposed amendments was not given to the plaintiff until a week later.
Nothing further was said by way of explanation. Although it was not mentioned in the affidavit, it was the fact that the defendant retained new Senior Counsel in February 2020. It is not uncommon for counsel, newly retained, to take a fresh look at a case and identify matters that could be raised but have not been pleaded. It is also not uncommon for a review of that kind to occur when existing counsel are in the throes of preparation very close to trial. In some circumstances a change of counsel, and a frank acknowledgement of a failure to identify an available point earlier in time (inadvertence) may constitute an adequate explanation for a late application to amend.
Counsel for the plaintiff acknowledged that generally speaking, some allowance might be made for those factors but said in this case it was relevant that the defendant had been represented throughout by the same firm of solicitors but more importantly, in the context of the amendments invoking clause 11.7(5) of the Shareholders’ Agreement, the defendant itself had considered the issue long before the application was made, and that fact had not been addressed in the defendant’s explanation for this application. I will return to that point momentarily.
Proposed Amendments to Paragraph 6
Each of proposed amendments to paragraph 6 of the defence turn on the application of clause 11.7(5) of the Shareholders’ Agreement.
The plaintiff put in evidence on this application correspondence between Mr Galtos and Mr Marani (the then chief operating officer of Openmarkets) from 2017. That material established that the application of clause 11.7(5) of the Shareholders’ Agreement as an answer to the plaintiff’s claims (or some of them) was specifically in the contemplation of the defendant in 2017 when it was engaging with Mr Galtos, who was at that time raising allegations that Openmarkets had, in issuing shares, breached the Shareholders’ Agreement.
In communications by emails of 27 February 2017 and 10 March 2017 Mr Galtos told Mr Marani, in substance, that he (for KSG) was contending that breaches in respect of new capital raisings had harmed his investment in the company and that if it were not possible to resolve the issue he would have to refer it to his solicitor. In response, by an email of 15 March 2017, Mr Marani said, relevantly:
Prior to the termination of the Shareholders’ Agreement, the Company carried out a number of capital raisings by way of the issue of new securities to new major investor (sic) in accordance with the terms of clause 11.7 (5) of the Shareholders’ Agreement.
Subsequently, Mr Galtos’ solicitors referred to that email in their letter of 26 May 2017 to Mr Marani. They said, relevantly:
Our client’s director has been in contact with you for some months now querying the new security issues and requested access to documents to verify these new security issues. Your approach has been to delay the provision of documents until on 15 March 2017 you have put our client on notice that insofar as the new security issues in question were concerned, these amounted to a (sic) issue of new securities to a new major investor within the meaning of clause 11.7(5).
The above-mentioned correspondence was also annexed to Mr Galtos’ affidavit sworn 2 May 2018 in support of the plaintiff’s originating process in this proceeding.
The implications of these communications are first, that the defendant had, as early as March 2017, specifically turned its mind to the question of the application of clause 11.7(5) in response to Mr Galtos’ claim that the company had breached the Shareholders Agreement by issuing new securities. Mr Marani had stated his opinion that the capital raisings carried out before the termination of the Agreement were in accordance with that clause. The correspondence did not mention any share allocation in particular. It was asserted that the capital raisings that occurred before the termination of the Shareholders Agreement generally, fell within that clause.
Second, the 2017 correspondence does not establish that any legal advisor to the defendant had concluded that clause 11.7(5) was an answer to some or all of Mr Galtos’ (and KSG’s) claims. But it does establish that at least by the time this proceeding was issued (in May 2018) the defendant itself had had the opportunity to consider the application of clause 11.7(5). Furthermore, it may be inferred from the correspondence, and I do infer, that this issue ought to have been brought to the attention of the lawyers engaged for the defendant in this proceeding, the relevant correspondence having been annexed to the affidavit in support of the plaintiff’s originating motion.
Third, Mr Galtos was aware that, in 2017, the defendant took the position that the share allocations made by it prior to the termination of the Shareholders’ Agreement were made in compliance with that Agreement, by virtue of clause 11.7(5).
KSG says that, notwithstanding the earlier correspondence, it was entitled to proceed on the basis that in this proceeding, the defendant was not raising against it, clause 11.7(5) of the Agreement. In my view, that was in all the circumstances a reasonable view for it to form. It was reasonable because the positive defence required pleading (as the present application attests), and despite ample opportunity since 2018, it was not raised.
The fact that this aspect of the defence had been the subject of specific consideration by the defendant was not addressed by the defendant in the explanation proffered by it for each making this application at this time. There was no attempt made to explain or justify the apparent change of position. A reasonable interpretation of the explanation provided by the defendant’s solicitor is that the clause 11.7(5) issue had been overlooked by the defendant’s legal team until now, despite the matter having been raised directly by the defendant itself, in material that was subsequently produced by the plaintiff in support of its originating process. The defendant’s Senior Counsel frankly and properly accepted that the amendments to paragraph 6 could have been made earlier, but were not made.
The fact that the defendant had previously considered the point but had not taken it earlier, is not of itself determinative of this application. It is one factor relevant to the exercise of the discretion.
Shares issued to Thoo Chow Fah
The parts of the defence advanced in the proposed new paragraph 6 concerning the allocation of shares to Thoo Chow Fah entail these propositions: that Mr Thoo was a ‘major new investor’; that he entered into a deed of accession after the share acquisition; and that the share issue was approved by a resolution passed by existing shareholders of the company who owned 75% of the ordinary shares.
The plaintiff submitted that it would be prejudiced in two respects, should that part of the proposed defence be allowed. First, the term “major new investor” is not defined in the Shareholders’ Agreement. The plaintiff says it would require discovery in order to investigate and establish the meaning of the term. The plaintiff did not elaborate on what any discovered documents might be expected to reveal. The defendant said in response, that the case is a simple one and turns solely on the fact that following the issue of the shares Mr Thoo held 17.2% of all ordinary shares in the company. That fact, the defendant said, can be readily established by share transfer records which are in the possession of both parties. The proposition was not seriously contested by the plaintiff. I accept the defendant’s submission that it is difficult to see what documents the plaintiff might realistically wish to obtain that might advance its response to the contention that on the basis of the percentage of shares held by Mr Thoo, he was a “new major investor in the company”.
The plaintiff also submitted that it would wish to test and potentially contest the claim that the issue of shares was approved by resolution passed by existing shareholders who owned 75% of the company’s ordinary shares. The defendant’s proposed particulars state that the resolution is to be established by documents executed by named shareholders, and inferred by the identity of the shareholders who participated in the vote. There was no contest that the relevant documents were and have been available to the plaintiff.
When pressed as to the implications for the plaintiff, of the amendments to the defence being allowed, Senior Counsel for the plaintiff said that the amendment in respect of the allocation of shares to Mr Thoo could be accommodated without the need for an adjournment, but the other amendments could not. I infer that there is no demonstrable need for further evidence or discovery on this point (that is, in order to test this part of the defendant’s proposed defence).
Finally, it was accepted by the defendant that if any amendment to paragraph 6 was allowed, it would be necessary for the plaintiff to revise the assessment of its loss. That would entail providing instructions to Mr Smith and asking him to recalculate the plaintiff’s loss. I accept the defendant’s submission that the recalculation of the loss necessitated by an adjustment to the number of shares potentially in issue, would be essentially a mathematical exercise, achieved by adjusting the inputs to a calculation made in a spreadsheet, without the need to revisit any substantive assumptions of the plaintiff’s expert to undertake any subjective analysis. I accept that that exercise could be readily achieved. I accept the plaintiff’s submission that the complexity of the exercise would increase with the number of share allocations in dispute, however I do not accept that in any case the exercise would be prohibitively complex.
Shares issued to Paritech
The proposed amendments to paragraph 6 relating to the issue of shares to Paritech raise the same issues as those concerning the issue of shares to Mr Thoo. However, they raise a significant additional matter. This aspect of the proposed new defence entails the proposition that the issue of shares was in connection with the acquisition of source code and intellectual property from Paritech (and accordingly, the issue was in connection with the acquisition of ‘assets or technology’ within the meaning of clause 11.7(5)).
The plaintiff said that it would need to investigate whether in fact the share transfer was in connection with the acquisition of source code and intellectual property, including by investigating the relationship between the consideration paid for the shares and the value of the technology. Senior Counsel for the defendant properly conceded that the plaintiff would be entitled to investigate that matter. I was informed that a subpoena had been issued to Paritech for that purpose.
I accept that the plaintiff would not be in a position to fairly respond to this aspect of the proposed amended defence without further investigation and that it could not feasibly or realistically do so by 21 April 2020 or even very shortly thereafter.
Disposition – paragraph 6
The application to amend paragraph 6 insofar as the amendments concern the allocation of shares to Paritech, is refused. The interests of justice do not lie in permitting an amendment that would require investigation by the plaintiff that it is not reasonably able to undertake before the commencement of the trial, particularly in circumstances where the defendant has had ample prior opportunity to amend its claim to advance this issue at an earlier stage but has not done so. The interests of justice certainly do not lie in the granting of an adjournment in circumstances where the proceeding has been on foot since May 2018 and where such an adjournment would not on any view be caused either by the conduct of the plaintiff or by any event outside the control of the defendant.
The application to amend paragraph 6 insofar as the amendments concern the allocation of shares to Thoo Chow Fah, is allowed. Although the defendant may be justifiably criticised for failing to raise this issue much earlier, and for the sparseness of its explanation for having made the application at this very late stage, on balance, because I consider that the cause of the lateness of the application to be inadvertence rather than a tactical ploy, and because the issue can be accommodated without any real prejudice to the plaintiff, in particular without any need for an adjournment, the interests of justice favour permitting this amendment in these circumstances.
The plaintiff will, accordingly, be given leave to file an amended expert report addressing an alternative calculation allowing for the prospect that the plaintiff might not establish that the shares allocated to Thoo Chow Fah were allocated in breach of the Shareholders’ Agreement.
Proposed amendments to paragraph 7
The proposed amendments to paragraph 7 of the defence entail these propositions:
(a)that pursuant to Openmarket’s Constitution its directors may have refused to register any proposed transfer of KSG’s shares (without any requirement to give reasons);
(b)that had the directors been asked to register a transfer of shares they would have refused to do so without being positively satisfied as to the identity of the proposed transferee and the proposed amount of consideration and without in effect, seeking to persuade the proposed new investor to acquire new shares in the company for cash consideration rather than taking a transfer of shares from KSG;
(c)by reason of (a) and (b), it is more likely than not that KSG would not have been able to sell any or all shares at any time after 11 August 2016.
These proposed amendments respond to the plaintiff’s claim that it would have sold all of its shares shortly after 11 March 2016. As I have observed earlier, the defendant was on notice of this aspect of the plaintiff’s claim from 23 December 2020. I accept that this was not a matter that was considered by the defendant prior to this time. Although the defendant can be justifiably criticised for not seeking to amend its pleading earlier (after December 2019), I accept that in fact, this issue crystallised for the defendant while it was in the course of preparing its witness statements.
The plaintiff bears the onus of establishing that it would have sold its shares after the termination of the Shareholders’ Agreement, and, necessarily, that it would have satisfied any impediment to the sale of its shares. Viewed in that way, reference in proposed new sub-paragraph 7(b), to the provision in Openmarket’s Constitution of a discretion in its directors to refuse to register a transfer, is unobjectionable. It would be open to either party at trial to rely upon the Constitution, the existence of which is a fact or circumstance against which the plaintiff must establish its case. Although it appears to be the defendant’s intention that the proposed new sub-paragraphs of paragraph 7 be read together, sub-paragraph 7(b) might also be read by itself, and if the defendant is so advised, will be permitted to amend its defence by adding that sub-paragraph.
However, by the proposed amendments to sub-paragraph 7(c) the defendant now wishes to advance a positive case about how the directors of Openmarkets would have behaved in the face of an application by KSG to transfer its shares, in the exercise of their discretion. When pressed as to where in the defendant’s proposed evidence that that case was addressed, Senior Counsel for the defendant said in substance that the case was consistent with the evidence that was to be given by Emlyn Scott, to the effect that the company was in need of new equity, and that in the specific case of the acquisition of shares by one investor (BMYG) from an existing shareholder, Mr Scott had sought to persuade that investor to acquire new shares rather than take a transfer. Senior Counsel also said, however, that if the amendment were permitted, the defendant would seek leave to adduce further evidence from Mr Scott, essentially to the effect of the proposed amendment to sub-paragraph 7(c).
I accept the submissions of the plaintiff that by the amendment the defendant seeks to raise a new positive case about the behaviour of the company in relation to proposed transfers of shares and that the plaintiff, in fairness, ought be permitted to test that case, including by investigating any proposed share transfers during the relevant period, and more generally. Although Mr Scott’s evidence (but not the existing pleading) does raise the issue of the company’s preference for new equity, and does raise an instance of the company seeking to persuade an investor to buy new shares rather than accept a transfer, the proposed amendment at subparagraph 7(c) goes further in advancing a case about the company’s pattern of behaviour more generally.
In my view, the interests of justice do not favour a grant of leave permitting the defendant to raise the positive case advanced in subparagraph 7(c) of its proposed amended defence. The plaintiff would not have a fair opportunity to respond to that case without an adjournment and, as observed earlier, the interests of justice do not favour an adjournment of the trial.
Sub-paragraph 7(d) expresses a conclusion, namely that by reason of the matters in subparagraphs (b) and (c), the plaintiff would likely not have been able to sell its shares. Leaving to one side the references to subparagraphs (b) and (c) within sub-paragraph (d), the contention in sub-paragraph (d) is in substance no more than a positive statement of the defendant’s existing denial of the plaintiff’s causation case.
The proposed amendment to sub-paragraph (d) will be permitted, with the necessary adjustments to the cross-references it contains.
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