Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors

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JUDGMENT HANDED DOWN
THE DEPUTY JUDGE: For the reasons given in the judgment, 4
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which I now hand down, copies of which have just been
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distributed to the parties, I will grant orders against
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the second defendant in the terms set out in that
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judgment and accept the undertakings given to the court
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on the previous occasion, 1 July. However, I do expect
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counsel to draw up for form of the order and the
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undertakings and if in the course of so doing there are
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minor alterations to be made in the forms of the
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undertakings and orders, as I have understood them and
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set them out in the judgment, I shall be perfectly happy
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to accept such any changes agreed between parties and
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set out in the draft order which I will expect to be
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supplied to me quite shortly and I will hear counsel on
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how quickly they can draft those terms of order and on
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any matters arising from the judgment which I have
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given.
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Mr Brisby.
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Submissions by MR BRISBY QC
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MR BRISBY: May it please your Ladyship. Can I just deal
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with representation. It's as last time save that today
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Mr Brown is here on his own in place of Mr Brindle and

Monday, 14 July 2014

(11.00 am)

today. Does the fact that Mr Brown is instructed by

Berwin Leighton Paisner mean that, to be absolutely
correct, the judgment which I have handed down should
refer to that or are you content that the fact that they
were instructed together by Mr McLaren at the hearing
should stay?
MR BROWN: My Lady, the factual position is that. We were
instructed at the hearing by Mr McLaren so we would be
content for the judgment to reflect that.
MR BRISBY: My Lady, the other matter that arises today is
a further injunctive -- application for injunctive
relief against Sherway and Mr Eliasch.
THE DEPUTY JUDGE: Well, actually, I was rather expecting
that you were going to tell me what was supposed to
happen about costs.
MR BRISBY: Well, I think the -THE DEPUTY JUDGE: Presumably that's part of the -MR BRISBY: -- one thing that is agreed between the parties
on the drafts is that -- if your Ladyship would just
give me a moment.
THE DEPUTY JUDGE: Costs should be in the application.
MR BRISBY: Costs of the hearing before your Ladyship, which
was an ex parte hearing, albeit notice should
effectively be costs in the cause.
THE DEPUTY JUDGE: Costs in the cause rather than costs in

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14 July 2014

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he is instructed now by Messrs Berwin Leighton Paisner.

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Firstly, the final form of the order that your Ladyship
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should make in the light of your Ladyship's judgment.
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In relation to that, there are two competing versions
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that my junior, Mr Cook, and Mr Maclean's junior,
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Mr Caplan, have been working out. I don't know whether
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your Ladyship will in due course be prepared to
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adjudicate between the two minutes or whether you would
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feel that further attempts should be made between the
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parties to try and agree the order.
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THE DEPUTY JUDGE: When was the first attempt made to try
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and agree the order?
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MR BRISBY: In the course of last week.
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THE DEPUTY JUDGE: And how many times has it gone backwards 15
and forwards? I hear Mr Cook saying it has just come
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back once and you should have another try. Of course I
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am prepared to adjudicate on the final form of the order
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but it doesn't seem to me that the best efforts of
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junior counsel will yet have been extinguished.
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MR BRISBY: Indeed, and neither Mr Maclean or myself have
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had any input into that process so maybe time could
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usefully be spent after this hearing concludes with
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Mr Maclean and I -24
THE DEPUTY JUDGE: Can I just ask about the representation
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My Ladyship, there are two matters before the court.

the application?
MR BRISBY: No, sorry. Costs in the cause meaning the
application.
THE DEPUTY JUDGE: Yes, okay. So that's all agreed anyway,
so I need not interfere with that.
MR BRISBY: And there is a slightly different agreement also
in relation to the service out application. The costs
of those are to be costs in the cause -THE DEPUTY JUDGE: As long as it hasn't been forgotten
about.
MR BRISBY: No, my Lady. That's surprisingly one thing on
which there is agreement on both drafts.
THE DEPUTY JUDGE: Now -MR BRISBY: My Lady, I was saying there is a further
application for injunctive relief against Sherway and
Mr Eliasch in a new action against them that was
commenced this morning and I don't know if Mr Maclean
and his team want to remain for that but -THE DEPUTY JUDGE: Well, it's a public hearing, they can
come or go as they please.
MR BRISBY: My Lady, that new action -THE DEPUTY JUDGE: If they want to go then I imagine there
might be quite a lot of noise and kerfuffle while they
all get up and go away so let me know if you want to go,
but you don't need my permission to go or stay.

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Merrill Corporation
(+44) 207 404 1400

www.merrillcorp.com/mls

8th Floor 165 Fleet Street

London EC4A 2DY

Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors
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MR MACLEAN: My Lady, I don't wish to go. I do wish to

address your Ladyship on a number of matters concerning
a draft order.
THE DEPUTY JUDGE: I don't think I have seen it. And I
shouldn't see it if it's still going backwards and
forwards between the two. I gather it has only come
back once and I gather that leading counsel have not yet
had any input?
MR MACLEAN: I haven't discussed with Mr Brisby but I can
tell your Ladyship on the basis of the repeated drafts
it's unlikely that we're going to reach agreement on the
terms of that.
THE DEPUTY JUDGE: It may be that ultimately I am required
to adjudicate upon it but since it has only gone back
once and since Mr Brisby tells me that neither of you
two gentlemen have had any input I think you should -MR MACLEAN: Well, I have certainly looked this morning and
over the weekend at what has been going back and forward
and I have submissions to make to your Ladyship on the
basis of that. Furthermore -THE DEPUTY JUDGE: I haven't seen the draft.
MR MACLEAN: We can hand up a draft to your Ladyship.
THE DEPUTY JUDGE: Well, I have asked. I have asked the
parties to make an effort to agree the draft and I am
told that it's only come back from your side once. Are

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Appeal and therefore the formulation of the order can't

wait.
MR MACLEAN: I haven't said that in terms but that is what I
hinting your Ladyship at.
MR BRISBY: What is quite odd is his form of minute doesn't
have leave to appeal again so that's the one thing that
I am taken by surprise on. Your Ladyship, I mean -THE DEPUTY JUDGE: Do. By all means, you will both need to
give me the draft order if I am to adjudicate upon it.
MR BRISBY: Indeed, my Lady.
THE DEPUTY JUDGE: Both versions.
MR BRISBY: I would suggest, if it's convenient to your
Ladyship, I should deal now with the application against
Mr Eliasch and Sherway. Your Ladyship should then rise
with the two minutes and your Ladyship's judgment and
look at them and I will then firstly find out what
further orders I know now about leave to appeal are
going to be sought and, secondly, we will see if we can
narrow agreement on some of the differences. My Lady,
having seen my learned friend's draft, I am certainly
prepared to move on a number of matters. It's just
unfortunate that there hasn't been time to do that so
far.
THE DEPUTY JUDGE: Well, that sounds encouraging.
MR MACLEAN: It sounds encouraging but, as your Ladyship

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you saying that you refuse to engage in a process -MR MACLEAN: I am not saying that I refuse to engage in the
process but if your Ladyship will give me a moment, I
might be able to explain why it is necessary for this to
be formulated and sorted out by your Ladyship as
a matter of urgency, because I am going to be making
a number of applications to your Ladyship consequent on
the judgment that your Ladyship has handed down and that
requires matters to be dealt with as a matter of urgency
and expediency and so, putting off the formulation of
your Ladyship's order in precise terms, with respect,
will simply not do in relation to the next steps which
we propose to take, with or without your Ladyship's
permission.
MR BRISBY: Can I suggest this as a way forward, having
heard my learned friend: I should make my application in
relation to the further injunctions. Your Ladyship
should adjourn for half an hour or three quarters of
an hour with the two minutes so you can see where the
battle lines are. My learned friend and I will attempt
to see if we can narrow the -THE DEPUTY JUDGE: Well, I think, reading between the lines,
Mr Maclean is saying he wants permission to appeal, but
if I don't give it to him he wants to run off to the
Court of Appeal to get that permission from the Court of

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

next. One of those matters is applying to your Ladyship

for permission to appeal. If your Ladyship is not

minded to grant that then we have other steps which are

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

have no idea how long my learned friend is proposing to

address the court in relation to this latest

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

respectfully suggest that we ought to sort the order out

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which is hanging over us from two weeks ago or

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thereabouts and then he can move his application in

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relation to the latest matter.

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So I would suggest your Ladyship dealt with the

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

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the first defendant is concerned, knows where it stands

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in relation to the order.

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

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

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remarks to Mr Brisby about his new application yet.

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MR MACLEAN: No.

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

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

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

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

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

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Merrill Corporation
(+44) 207 404 1400

www.merrillcorp.com/mls

8th Floor 165 Fleet Street

London EC4A 2DY

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being made, effectively, without notice. I understand

that Mr Brown's team were notified of this application
last night.
MR BRISBY: Yes.
THE DEPUTY JUDGE: And I haven't really grasped why this
application is being made effectively without notice but
if one wants to forget about formal notice then I could
say on such short notice.
MR BRISBY: Indeed. I will -THE DEPUTY JUDGE: I think that's the first thing I need you
to deal with before you deal with the meat of it.
MR BRISBY: Well, I was proposing to do that in my
introductory remarks because in a nutshell, in one
sentence, Mr Eliasch is now colluding with Mr Doronin in
the core Board meetings of the company, not on the five
days' notice with full agenda that is required by the
joint venture company shareholders agreement but in one
case, one hour five minutes' notice was given on Friday
evening late. Frankly fortuitous that someone was
around to pick that email up and to act accordingly.
THE DEPUTY JUDGE: It seems to me that I'm not I understand
and that might be because of the lack of depth of my own
reading and that (Inaudible). What is the agreement
between your client and Mr Eliasch as to the terms upon
which he sits on the Board? Is he your nominee or is he

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there is something genuinely urgent that comes up.

Equally, he is not to consent to additional matters
being added at the last moment to the agenda of Board
meetings save, again, to preserve the position in case
there is something genuine without our written consent
or the leave of the court and, finally, we are seeking
an order that he passes on to us any information or
documentation that he receives as an A director of the
company. There's a complete asymmetry of information
here, for reasons that are explained in the evidence.
Mr Eliasch is party to the inner councils of the
company, receives documentation and information, plans
are hashed between Mr Doronin and him as to what the
Board should be doing and the first we ever hear about
anything is a Board meeting is convened and then, just
before that Board meeting, additional items are added to
the agenda, which are stated in very general terms. So,
we are not seeking to control his voting.
THE DEPUTY JUDGE: What is happening to Mr Tavakoli?
MR BRISBY: Mr Tavakoli is there as a nominee of
Carpentaria.
THE DEPUTY JUDGE: That's right. Is he being told about
what's going on at a Board level?
MR BRISBY: He is not, no.
THE DEPUTY JUDGE: He is not been told either.

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14 July 2014

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your appointee? To what extent is he entitled to make

up his own mind how he wishes to vote and how he wishes
to conduct himself on the Board and to what extent is he
obliged to follow the wishes of Peak, and is there
a written agreement governing his position on the Board
or is it oral; what is it? And, for example, you see,
what I'm driving at here is it seems to me that,
depending on what the arrangements actually are, if you
don't like what your nominee on the Board is doing, you
just get rid of him and you get another nominee who is
more to your taste and I don't really understand what
the relationship is.
MR BRISBY: Well -THE DEPUTY JUDGE: That's what I need to know a bit more
about.
MR BRISBY: Your Ladyship will get answers to all those
things. But, just dealing with the most important
thing, which is the legal question that was wrapped up
in your Ladyship's observations, we are not at this
stage seeking to control how Mr Eliasch substantively
casts his votes at Board meetings. I do emphasise at
this stage it may come to that. At the moment we are
seeking very limited relief. Basically we are saying he
is not to consent to short notice without our consent or
the leave of the court. That preserves the position if

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

loyal nominee -THE DEPUTY JUDGE: I understand. Well, I understand. You
split your representation between somebody who remains
loyal and somebody who you now say has turned out not to
be loyal.
MR BRISBY: Indeed.
THE DEPUTY JUDGE: Are you saying that Carpentaria are also
being excluded from Board discussions?
MR BRISBY: Yes, indeed. Your Ladyship should know that the
interlocutory relief is sought in the context of a new
action that was commenced this morning. That action
seeks inter alia declaratory relief that my clients,
PHRL, are entitled to rescind the various joint venture
and loan agreements they entered into with Sherway.
Pausing there, that's not the joint venture agreement we
have with Mr Doronin's company, TIL. Alternatively,
they seek declaratory relief that they are entitled to
accept what amount to repudiatory breaches of the
relevant agreements on the part of Sherway.
My Lady, the final nail in the coffin of the
relationship of my clients, on the one hand on the one
hand, and Sherway or Mr Eliasch on the other hand was
your Ladyship's draft judgment which was received in the
course of Wednesday --

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Merrill Corporation
(+44) 207 404 1400

www.merrillcorp.com/mls

8th Floor 165 Fleet Street

London EC4A 2DY

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THE DEPUTY JUDGE: So sorry.

MR BRISBY: Your Ladyship may recall a Board meeting had
been called for 3.00 pm on Friday, 11 July, as regards
the vexed question of whether Stewarts Law should be
instructed as solicitors on behalf of the company,
an issue on which your Ladyship was troubled after your
Ladyship rose the other day with further evidence on
both sides. Oddly that issue seems to be in the process
of going away because there has been a constructive
response late last night from Messrs Sidley Austin
suggesting some other firms of solicitors who might be
able to assist and we take that as a constructive sign
and there will be a response, no doubt, going in the
course of the day to that, but that is what that Board
meeting was about.
Some 24 hours before, in other words the day after
your Ladyship's judgment had come in, and the day before
the meeting was due to be held on the Stewarts Law
question, a very substantial number of additional items
were sought to be added to the agenda for the Board
meeting, the effect of which, if passed, would have been
to deprive Mr Zecha of any of the customary powers of
the CEO and hence to sidestep the order that your
Ladyship indicated you would be making in the draft
judgment.

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MR BRISBY: Don't?
THE DEPUTY JUDGE: I do. Yes, I do.
MR BRISBY: Saying:
"I attach notice of additional items to be added to
the agenda for tomorrow's Board meeting."
Then:
"I also attach the consent in writing signed by an A
director and a B director."
The A director is of course Mr Eliasch and the
evidence establishes he is chased to sign that without
any consultation at all with his appointor. His
signatures are on page 338, if your Ladyship just looks
forward to that. And that follows earlier
correspondence your Ladyship may have picked up
reference to it in the witness statement of Mr Dunn
where Mr Eliasch refused to even discuss the question of
Stewarts Law and whether they should be appointed with
PHRL and Mr Amanat and if we look at page 3 of 4, where
we see some of the additional matters on the agenda, one
sees item 6 is discussion regarding the immediate
adoption of appropriate corporate governance guidelines
and steps to assure adherence to those guidelines.
Does your Ladyship see that?
THE DEPUTY JUDGE: I do.
MR BRISBY: And those guidelines begin at page 339. Quite

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Now, just pausing there, if your Ladyship would take

up the new file 2.
THE DEPUTY JUDGE: Do I understand from that that it is the
position of those who are promoting such resolutions
that the company can survive for a short while without
any CEO; any active CEO?
MR BRISBY: Well, it must be because active is the right -they accept of course as they must that Mr -THE DEPUTY JUDGE: Doronin was not properly appointed.
MR BRISBY: They must accept that but they also accept,
subject of course to any appeal, they also accept that
Mr Zecha's back in (Inaudible) but why I use the word
side stepping your Ladyship orders, they propose to
adopt what they call corporate governance proposals
which are designed to ensure, quite literally, that
Mr Zecha cannot even order more drink or food to service
the company's restaurants and bars in the various hotels
it operates, because -- just by way of example, if your
Ladyship takes up the second volume.
THE DEPUTY JUDGE: The new file, is it?
MR BRISBY: Yes and goes to tab 3, which is the exhibit to
Mr Dunn's witness statement, at page 303, your Ladyship
sees an email sent from Mr Djanogly, who is a B
director. Does your Ladyship have it?
THE DEPUTY JUDGE: I do.

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a lot of it would, in ordinary circumstances, be

unexceptional but the sting in this particular document
is the last thing which has been added:
"Other matters requiring Board approval."
And there one sees the last bullet point is this:
"In addition to the Board reserve matters, the CEO
shall not undertake any decision in relation to the
following matters without prior approval of the Board,
and that is entering into any arrangement, contract or
transaction with any third parties, regardless of the
nature of the arrangement."
So, as I say, that would cover orders for food and
drink at the restaurants and bars of the 25 or so hotels
and resorts -THE DEPUTY JUDGE: Does the CEO do that; does he order the
food and drink? Do you not have a sort of catering
manager or someone who orders the food and drink?
MR BRISBY: He would no doubt give directions.
THE DEPUTY JUDGE: Would he? I am surprised by that,
actually.
MR BRISBY: I would have thought so, I must say.
THE DEPUTY JUDGE: I am very surprised. If I were the CEO
of a 26 resort super-luxury hotel group I would expect
to have senior staff who would do that sort of thing.
They wouldn't need to talk to me about it --

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(+44) 207 404 1400

www.merrillcorp.com/mls

8th Floor 165 Fleet Street

London EC4A 2DY

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

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they're answerable to isn't and if one looks down at
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D -4
THE DEPUTY JUDGE: When is this Board meeting now due to be 5
held?
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MR BRISBY: It's due to be held on Friday.
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MR BROWN: I think it's Monday, my Lady, 21 July. I just
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wondered, my Lady -9
THE DEPUTY JUDGE: Why is this application being made
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without notice today?
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MR BRISBY: Because of what happened on Friday night, when
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a Board meeting was called on an hour and five minutes'
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notice.
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THE DEPUTY JUDGE: I apologise. When was it agreed to defer 15
the meeting until Monday? That's a better question.
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MR BRISBY: It was agreed following that but can I just deal
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with where I think your Ladyship is coming from.
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THE DEPUTY JUDGE: Yes, it's the lack of notice. That's
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where it's coming from.
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MR BRISBY: When the first problem arose and the long list
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of additional matters were added to the existing agenda
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for the 3.00 pm Friday Board meeting, what then happened
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was there was agreement that that Board meeting be
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adjourned to Monday week. What then happened, at
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staff are entitled to do something but the person who

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

sort of material they wish to have, they say, discussed
at the next Board meeting. I do note that none of this
seems to be suggesting resolution except until one gets
to the other matters requiring a Board approval; the
rest of it seems to be discussion, discussion,
discussion, and obviously they have accepted now that
there should be notice given of those matters upon which
they do require resolution but, given that the
shareholders agreement puts in the hands of the A and B
directors the ability to agree matters to be placed
before the court -MR BRISBY: The problem is any one A director -THE DEPUTY JUDGE: Any one A director can do it.
MR BRISBY: Yes. That is the problem.
THE DEPUTY JUDGE: I understand. That is a problem and it's
a problem with the drafting of the agreement -MR BRISBY: Yes.
THE DEPUTY JUDGE: -- that your clients have entered into
and it's something that you didn't foresee would lead to
problems when you appointed Mr Eliasch.
MR BRISBY: Yes, indeed.
THE DEPUTY JUDGE: So that takes me back to one of my
original questions, which I would like to know the
answer to, and I'd like to know it sooner rather than

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

meeting, dealing with some of the items on that agenda,
including corporate governance on an hour and five
minutes' notice. Clearly the hope was we wouldn't even
know about it. Mr Eliasch would be ready to go and the
meeting would happen.
THE DEPUTY JUDGE: Yes.
MR BRISBY: Now that second attempt has failed because we
did find out about it.
THE DEPUTY JUDGE: Yes.
MR BRISBY: And it has been stood over to Monday, but there
is nothing to stop them and, going on past experience,
it seems a real risk to us that they will seek, if
they're not enjoined from doing so to call -THE DEPUTY JUDGE: More meetings or add more material
without the proper notice.
MR BRISBY: Yes and call a Board meeting -- for all we know
they're calling a Board meeting now. We're all in court
today.
THE DEPUTY JUDGE: (To Mr Brown) I will -- believe me, I
will hear from you.
I want to know, though -- you have given me
a flavour of what you call in your skeleton argument the
shenanigans.
MR BRISBY: Yes, indeed.

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

with everything else that you say. Why does Mr Eliasch

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have to do what you tell him to do?

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

THE DEPUTY JUDGE: Where do I see that?

MR BRISBY: Well, firstly --

THE DEPUTY JUDGE: Where do I see that?

MR BRISBY: You need to look --

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

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MR BRISBY: Can we start with the shareholders agreement

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between us and TIL?

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THE DEPUTY JUDGE: Yes.

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MR BRISBY: Because --

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

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

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THE DEPUTY JUDGE: Yes.

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

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that is an agreement between my clients, Tarek and the

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joint venture company itself and under that your

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Ladyship will recall we have the A shares.

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THE DEPUTY JUDGE: Yes.

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

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provisions contained at clause 8 of the agreement

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dealing with meetings of directors.

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Firstly, jogging back to 6, your Ladyship will see

from 6.1B the A directors have a right to nominate half
the Board.
THE DEPUTY JUDGE: Yes.
MR BRISBY: Two A directors and two B directors. They will
consider expanding to three each. Then they can appoint
observers. C deals with removal of nominated directors.
Then meetings of directors are dealt with in 6.2.
Little C requires at least five business days' notice,
accompanied by an agenda specifying in reasonable detail
the matters to be raised at the meeting and copies of
any papers to be discussed and/or voted at the meeting.
Then there is a dispensation from that in D:
"A shorter period of notice for meeting of the Board
may be given if both an A director and a B director
agree in writing but the notice provisions under 62C1
and 2 will still apply."
That means you have to circulate papers and give as
much detail as possible.
Then there is E: matters not on the agenda or
business conducted in relation to those matters may not
be raised at a meeting with directors unless an aid rep
from the B director agree in writing.
F deals with quorum. It has to be at least one A
and one B. Quorum has to be present throughout the

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

acknowledge their earlier sin or not.

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

3 o'clock in the morning.

THE DEPUTY JUDGE: Well, I understand that.

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

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point here, I am just going to take your Ladyship -THE DEPUTY JUDGE: If they haven't given notice and they
purport to do something at 3 o'clock in the morning I
expect you would then be able to come to court without
notice to complain about that.
MR BRISBY: But it may be too late by then, because if the
meeting has taken place -- that's my concern.
THE DEPUTY JUDGE: But it may not be a proper resolution of
the Board.

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

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because Mr Eliasch and a director would have consented

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to short notice. There would be a quorum provision.

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

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

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

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which requires the director --

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

agreement.
THE DEPUTY JUDGE: Yes.

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meeting. There is an absolute right under G to adjourn

provided a written request is received from an A
director and it's provided that no business may be
conducted in the meeting after such a request has been
made and then I is also important.
THE DEPUTY JUDGE: G is presumably your main safeguard
against further shenanigans.
MR BRISBY: Yes, but that implies that we at least get
notice of the -- that's not to say worrying about what
happens on Friday night.
THE DEPUTY JUDGE: Yes, but they have obviously seen the
error of their ways on that and given way. I mean, one
of your strongest points on the last occasion was that
the provisions of the JVC had simply not been followed.
Today, you're here telling me that their attempts to
call meetings at very short notice, which led to
correspondence, have resulted to the adjournment of the
meeting without the need to have recourse to the court.
It seems to me from that that it has been accepted that
the meeting they were calling was not in accordance with
the JVC and they're standing it over to a day when
sufficient notice has been given.
MR BRISBY: We infer that's the position. They haven't
agreed -THE DEPUTY JUDGE: It doesn't matter. As long as it goes

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

agreement postulates we can create a deadlock if we
think appropriate because if you look -- at any rate at
Board level, at I there is an important provision.
THE DEPUTY JUDGE: Yes.
MR BRISBY: "At a meeting each director has one vote
provided that ...(Reading to the words)... Have two
votes."
So if someone has a car crash on the way to a Board
meeting and just fails to turn up, it doesn't mean that
either site gets a -- is in a position to outvote the
other side, even though there is a quorum because one A
director has turned up. Does your Ladyship see that?
THE DEPUTY JUDGE: Well, I do but, equally, based on your
concerns, if they don't give proper notice and
Mr Tavakoli doesn't turn up, or Carpentaria don't turn
up, acting by Mr Tavakoli, then Mr Eliasch could say he
has two votes.
MR BRISBY: Ah, But there is a quorum and he won't be there
to cast it. I mean, Mr Eliasch would have two votes.
THE DEPUTY JUDGE: Yes. Is that right? What's the quorum
provision again?
MR BRISBY: One A director and one B director. So indeed,
if Mr -THE DEPUTY JUDGE: Yes, I can see that you have worries

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about further shenanigans but that doesn't help me with

the question.
MR BRISBY: No. This is the background to your Ladyship's
question. We then need to look at the Sherway
documentation.
THE DEPUTY JUDGE: Yes.
MR BRISBY: And in particular at the PRHL Holdings
shareholders agreement, which your Ladyship will find
beginning at page 179.
THE DEPUTY JUDGE: 179 is a letter from (Inaudible).
MR BRISBY: This is still in file 4 of the old -THE DEPUTY JUDGE: I am sorry. Now, nobody referred,
really, to this agreement on the last occasion.
MR BRISBY: No. That may -- your Ladyship's recollection
may be correct.
THE DEPUTY JUDGE: Okay. I have it.
MR BRISBY: And clause 3 of this deals with completion.
It's a common ground that completion hasn't taken place
and then at "Completion as otherwise provided, Peak and
the joint venture companies..."
Now here, confusingly, the joint venture company
doesn't mean our joint venture company, the one
between -THE DEPUTY JUDGE: I know.
MR BRISBY: -- my clients and Mr Maclean's clients. Rather

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THE DEPUTY JUDGE: Yes.

MR BRISBY: "Including without limitation the PHRG Board."
And then the others are also mentioned.
"And that Johan Eliasch receives compensation and
indemnification arrangements and an equivalent level to
those which were granted to the other Board members of
PHRG."
Then there is a proviso, which says:
"If for reasons beyond our control we can't put
Mr Eliasch on to the Board at completion and completion
hasn't happened yet ...(Reading to the words)... one of
the directors again to the Board."
Little 1, obviously this doesn't apply because he
is -THE DEPUTY JUDGE: Yes.
MR BRISBY: -- on the Board in a sense in advance of his
obligation to do so but -THE DEPUTY JUDGE: What we need to look at is what is the
basis upon which your clients -- you appointed him to
the Board prior to completion.
MR BRISBY: Yes.
THE DEPUTY JUDGE: You're going to take me there next.
MR BRISBY: Yes. Can I just finish with the agreement?
THE DEPUTY JUDGE: Okay.
MR BRISBY: I was just saying in relation to B1, what is

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it means the new company, PRHL Holdings.

THE DEPUTY JUDGE: Yes, that's going to be inserted.
MR BRISBY: Exactly.
THE DEPUTY JUDGE: I know.
MR BRISBY: "It's going to procure the Sherway Board
resolutions of the JVC ...(Reading to the words)... as
Amanat as Chairman of the Board."
That's all in relation to the JVC.
THE DEPUTY JUDGE: Yes.
MR BRISBY: Then B is important:
"Procure that such steps are taken ...(Reading to
the words)... JVC PRHRG."
That is what we have hither to called the joint
venture company. That's the company in which PHRL and
Tarek are partners and then, going down the chain:
"ARGL Silverlink and ARDL, once ARDL has been
incorporated, as may be necessary with effect from the
date hereof or as soon as reasonably practical
thereafter to appoint Johan Eliasch as a director
nominated by the JVC [that means by the new holding
company] pursuant to all of the Boards in respect of
which the joint venture company has the right to appoint
two directors pursuant to..."
That's the other shareholders agreement. That's the
one we looked at a moment ago.

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interesting here is catering obviously for the situation

where Mr Eliasch isn't on the Board.
THE DEPUTY JUDGE: Yes.
MR BRISBY: It spells out what would be implied if it wasn't
spelt out, that because this is a joint venture
agreement they have to act in concert and that my client
can't vote without Mr Eliasch's consent any more, we
would say, than he can vote without our consent.
THE DEPUTY JUDGE: Well, I'm not sure. I hear what you say
but I'm not sure that it does follow.
MR BRISBY: I am asked to read 3.9:
"For the avoidance of doubt, it is said 3.3 and
clause 6 shall apply from the date ...(Reading to the
words)... Sherway will not become a shareholder of the
JVC and completion."
I don't, for my own part, really understand what
that adds to what has gone before because if you look at
3B, the proviso only applies if it's not possible to
appoint Mr Eliasch to Board positions at completion.
But, leaving that oddity to one side, we need to look at
4.2A:
"Each shareholder shall use reasonable endeavours
...(Reading to the words)... PHRG business.
So we say that means that one thing Mr Eliasch is
not entitled to do is to help Mr Doronin procure

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breaches of the PHRG shareholders agreement. So that's

a very important point and your Ladyship has that,
because 4.2A has to be read with 4.1A.
Then 4.2B is also relevant:
"Each shareholder agrees to exercise its respective
rights on disagreement so as to ensure that the business
of the JVC consists exclusively of the business and the
business should be conducted on commercial principles
with a view to optimising overall returns in accordance
with the terms of this agreement."
So, just pausing there, one wonders how Mr Eliasch
could ever properly have exercised his vote in favour of
the 150 million capital call that we talked about last
time at a figure of 1 cent per share which would have
led if not taken up to enormous dilution.
Finally, C:
"Each shareholder shall procure that the directors
appointed by it shall act in good faith in discharging
their duties as directors of the JVC as well as PHRG and
the other companies."
So, again, we say that is the basis of our legal
right to say that Mr Eliasch insofar as he is procuring
breaches of the other shareholders agreement with Tarek
and/or exercising his votes as a director of the PHRG
joint venture company otherwise that in good faith and
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in the interests of that company but rather pursuant to

and at the direction of Mr Doronin we say he's acting in
breach of what is contemplated under this duty, under
this agreement.
That's the agreement but, in addition, we plead in
our claim what we call an agreement -- the agreement.
And the agreement is an overarching agreement we plead
to which Mr Eliasch himself is a party as opposed to
merely Sherway.
THE DEPUTY JUDGE: This is paragraph 36, is it, of your new
particulars of claim?
MR BRISBY: Sorry?
THE DEPUTY JUDGE: Is this paragraph 36 of your new
particulars of claim?
MR BRISBY: I think it is. If your Ladyship will give me
a moment. Yes.
THE DEPUTY JUDGE: Presumably 36.21 isn't in contention but
the rest is?
MR BRISBY: Yes, but that's all based on what we say are the
representations, so you have to read them too because
specific representations were made about supporting
PHL's rights under -- in connection with the joint
venture with Tarek and if your Ladyship can cast an eye
over paragraphs 22 to 32, the representations are set
out.

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

me tell you where my mind is going on this. You said
this entire application would take between an hour and
an hour and a half. I haven't yet heard from Mr Brown
and we need to save some time to hear from Mr Brown.
I am still of the view that I don't see why this
application is being made today without notice though I
understand why you wanted it. Until you knew that this
Board meeting was being stood over until the 21st, I can
see why you felt the need to make an application without
notice. I see your continuing concern about future
shenanigans and, therefore, looking at your application
notice I can see your continuing concern to have either
an undertake over the hearing of your injunction
application or an order protecting you from the matters
set out at paragraph 5.1.
MR BRISBY: Yes.
THE DEPUTY JUDGE: And, indeed, 5.2, if there is any threat
of that. But, as for the rest, I am not at all
convinced that the matters based upon which you tell me
that Mr Eliasch has to act either with the benefit of
your instructions, so your agreement, however high you
put it, is so clear that I should make any order at all
without notice in circumstances where I'm not at all
satisfied that notice shouldn't have to have been given.

Page 31
MR BRISBY: No, my Lady, I am not seeking anything more
than -THE DEPUTY JUDGE: You are, 5.3, the communication of
documents and information received in his capacity as
a director for consultation. 5.3 is all to do with the
extent to which he is his own man on the Board or
your -MR BRISBY: My Lady, I do understand that.
THE DEPUTY JUDGE: Normally directors don't have to show
shareholders Board papers. Normally they don't have to
consult with shareholders before making decisions so, as
far as -- before I hear Mr Brown I shall just say now
that I don't think 5.3 is at all appropriate for
a without notice application on the material that you
have shown me, in saying the relationship between -MR BRISBY: My Lady, having heard your Ladyship I am not
going to press that.
THE DEPUTY JUDGE: Thank you.
MR BRISBY: If I can put a brief shot across -THE DEPUTY JUDGE: Can you not take up more time putting
shots across. If you want to put a shot across their
bounds you can write them a letter because I really do
need I think to spend some time hearing from Mr Brown
now.
MR BRISBY: So be it, my Lady, I'm not going to press that.

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

information it is inevitable we will seek to adjourn
Board meetings further, but that's not a matter -THE DEPUTY JUDGE: That's not a matter. That's a matter of
cooperation. It's not a matter which -- I cannot see,
based on the materials you have shown me that Mr Eliasch
is bound, contractually bound, to give you Board
materials at the moment.
MR BRISBY: My Lady, as I said -THE DEPUTY JUDGE: Now, what is extraordinary, but it
doesn't seem to be part of your relief, is if there are
Board materials which are not being shown to Carpentaria
you might have had better luck, I think, even on
an ex parte basis, in saying that all Board materials
should be shown to all four directors, not just three of
them. But that doesn't seem to be the nature of your
application today.
MR BRISBY: It's true, I should have said Carpentaria rather
than -- the complaint -THE DEPUTY JUDGE: I will fire a shot across anybody's
bounds on that. If there are materials going to the
Board they must be shown to all directors. That seems
to me to be blindingly obvious.
Anyway, Mr Brown, I am going to hear from you.

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in relation to these Boards meetings that were cancelled

on last Friday and those have been the subject of
correspondence between Sidley Austin, who are my learned
friend's instructing solicitors, and Candey, who are
Mr Brisby's solicitors. I don't think it's correct to
say that these Board meetings were called as an ambush
and they had no knowledge of the emergency meeting that
was proposed for Friday evening. There was a meeting
called at short notice and Mr Brisby has taken you to
the provisions of the JVC shareholders agreement which
permits that to happen.
After your Ladyship handed down -- sorry, handed us
her draft judgment and it was thought that there were
a number of matters that need to be considered as
a result of that judgment, that were of an urgent
nature. Items were added to the agenda but, as it
happens, Mr Brisby's clients adjourned that meeting.
The defendants, through Sidley, then asked for
an emergency meeting at 8.00 pm that evening and that
was also declined and a meeting has been arranged for
the 21st, which is next week, so for Mr Brisby to say
there's a risk that we might suddenly call another
meeting without telling them and pass resolutions I
think, is not -- it's not risk that's based on what
happened last Friday although I understand why he might

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Page 35

Submissions by MR BROWN
MR BROWN: My Lady, thank you.
THE DEPUTY JUDGE: Now, Mr Brown, I am not convinced that
this application should be heard without notice. You
got notice last night -- that's effectively today -there is a Board meeting on Monday. It may be that it
is necessary to abridge notice slightly but we can talk
about timetabling later because I would suggest that
this application should be heard no later than Thursday,
for example. But I will hear from you on that.
Secondly, I have already said to Mr Brisby, and I
will say again to you, I do not consider that any of
Mr Brisby's relief under 5.3 of his application notice
is suitable to be granted today in advance of that full
inter partes hearing, but I would like to hear from you
on the extent to which you're willing to accommodate
Mr Brisby's fears, which are not baseless fears, that
there might be further attempts to call further Board
meetings or add further material which isn't truly
urgent to the present agenda for next Monday without
proper communication with all members of the Board and
the protection of 5.1 or 5.2. That's what I would like
you to focus on.
MR BROWN: Thank you, my Lady. The first point to address I
think is the factual chronology Mr Brisby has provided

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apprehend something of that nature.

In relation to that, when we received the pleadings
this morning, because they were sent at midnight, around
midnight last night to the email inbox of someone who
wasn't picking up their emails, we spoke to Mr Brisby
this morning and offered limited undertakings in return
for a number of things and the undertaking was to say
that Mr Eliasch would undertake not to authorise a short
notice Board meeting, not to seek to add additional
items to the agenda for next Monday's meeting, in return
for three things.
One, that today's hearing wouldn't be effective and
then we could go off and have proper time to prepare for
this, and I heard your Ladyship's suggestion of Thursday
which I think is in accordance with what we would think
is a reasonable time in order to prepare to come back
before you or some other judge.
Second, we said that we would agree to those
undertakings on -- similar undertakings from the
claimant that they would not adjourn next Monday's
meeting and that they would not object to the items that
are presently on the agenda in respect of which they
have had notice, and the response from the claimant was
that, as I understand it -- Mr Brisby will correct me if
I am wrong -- they would not agree to that because there
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were certain papers with details in relation to some of

the items on the agenda that they had not seen and that,
until they saw those, if they saw them, they weren't
clear as to whether the meeting could go ahead next
Monday and, as I understood it, Mr Brisby gave this as
an example, so I don't know whether this was his
principal concern, they were concerned that on the
agenda for next Monday is a discussion of the new CEO
after Mr Zecha stands down and he was concerned that he
didn't know who it was proposed might be considered as
the new CEO at next Monday's meeting.
We have taken instructions and should be in
a position to provide that information to Mr Brisby I
think, I understand, by Wednesday, which ought to be
adequate time for his clients to consider the proposals.
Those proposals were rejected, so we are in a position,
my Lady, where Mr Brisby is now seeking to -THE DEPUTY JUDGE: Were those proposals made in open
exchanges of correspondence?
MR BROWN: Not in correspondence.
MR BRISBY: They weren't open at all. Certainly I was not
told that I would be told who the Chief Executive was
going to be. One of the points which is apparent from
the correspondence here is there are three people who
have apparently been considered but no one will tell us

Thursday in front of the court at the adjourned hearing.

MR BROWN: Yes.

THE DEPUTY JUDGE: Are you saying that you would undertake

now that Mr Eliasch would undertake not to authorise

a short notice Board meeting or new items for the agenda

without going through the proper procedures set by the

joint venture agreement in relation to the Board meeting

due to be held on Monday the 21st?

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

10

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

THE DEPUTY JUDGE: That is, to my mind, an acceptable and
sensible way forward.

15
16

Timetabling
Can we now talk about timetabling? You have only

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

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put together the evidence and skeleton that you would

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wish to submit and give Mr Brisby an opportunity to

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

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MR BROWN: Could we ask for Wednesday morning?

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THE DEPUTY JUDGE: Wednesday morning.

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

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Page 39

who they are and we are obviously concerned that one of

them may be Mr Doronin.
THE DEPUTY JUDGE: Mr Brown, please don't refer to without
prejudice matters without your opponent's consent.
MR BROWN: I am sorry, my Lady.
THE DEPUTY JUDGE: But it is open to you, of course, to make
exactly the same proposal now, if you wish to do so.
MR BROWN: Well, in which case, my Lady, I am. I am sorry,
I hadn't appreciated -- I was having a without prejudice
discussion with Mr Brisby and in fact neither of us
mentioned that, so those were proposals that I would
make now to your Ladyship and, obviously, I would submit
that those provide for a very fair timeframe and set of
circumstances in which we can then come back to you and
discuss the issues that really we haven't had any
opportunity to consider.
THE DEPUTY JUDGE: Well, it seems to me that you have
accepted that there are some items of information which
Mr Brisby's clients properly have asked for which they
have not yet got.
MR BROWN: Yes.
THE DEPUTY JUDGE: Therefore the question of whether or not
Mr Brisby's clients would seek to adjourn next Monday's
meeting because of lack of information your clients have
and haven't yet given them could be discussed on

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end of that day to -MR BRISBY: To reply.

THE DEPUTY JUDGE: -- to reply. This is looking as though
Thursday is unrealistic and that it ought to be Friday.
MR BROWN: Friday would be -THE DEPUTY JUDGE: So end of the day to reply, 5 o'clock,
say. Skeletons to be exchanged 12.00 noon, say, because
you need to look at the reply Thursday. And Mr Brisby's
application to come back on Friday. What do you think
the time estimate will be for Friday?
MR BRISBY: Bit difficult to say. My Lady doesn't know -THE DEPUTY JUDGE: It's probably going to be most of the
day, isn't it?
MR BRISBY: Is your Ladyship able to hear it?
THE DEPUTY JUDGE: I will be in Jersey.
MR BRISBY: Your Ladyship is not directing that this comes
back in the general list?
THE DEPUTY JUDGE: No. I think -- I will do my best -- I
will tell the clerk of the list that you need this heard
on Friday.
MR BRISBY: Yes. I am grateful to your Ladyship. Can I
just make two observations in relation to the suggested
timing: I think under your Ladyship's suggested
directions we were due to file our evidence and reply by
close of business on Wednesday. Because of time

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differences and Mr Eliasch being in New York, I think

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10 o'clock on Thursday?
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THE DEPUTY JUDGE: Who do you mean?
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MR BRISBY: I mean Mr Amanat, sorry.
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THE DEPUTY JUDGE: Mr Amanat.
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MR BRISBY: Could we have until 10.00 am?
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THE DEPUTY JUDGE: No, because that's too difficult for the
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skeletons then.
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MR BRISBY: I was going to say skeletons at 2.00.
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THE DEPUTY JUDGE: Why don't you do the -- you could serve
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your reply by 10.00 pm.
12
MR BRISBY: 10.00 pm, so be it.
13
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because whoever is going to do it needs to have the
15
opportunity to read the skeletons before the hearing.
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MR BRISBY: Indeed.
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THE DEPUTY JUDGE: And, Mr Brown, will you draw up the form 18
of the undertaking that has just been offered on
19
Mr Eliasch's behalf.
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MR BROWN: Yes, my Lady.
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THE DEPUTY JUDGE: And provide to Mr Brisby.
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Very well. Now -23
MR BRISBY: That leaves the form of the order.
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THE DEPUTY JUDGE: The form of the order.
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going to be in New York then, could we have until

read it.
MR BRISBY: Okay, fine.
(Pause).
THE DEPUTY JUDGE: Can I just say, Mr Maclean, that looking
at this very quickly -MR MACLEAN: Yes.
THE DEPUTY JUDGE: -- I do not see the justification for the
insertion of the words "effective before midnight on
31 July 2014 in relation to the appointment of
Mr Doronin." That's 5.1.2. Because unless and until he
is validly appointed as CEO, he isn't CEO, whether
before midnight or after midnight on 31 July 2014.
MR MACLEAN: Yes.
THE DEPUTY JUDGE: But apart from that I can see the
attempts to clarify the scope of some of the matters in
my order. For example, that what you're trying to do is
make sure that it's clear on the face of the order that
nothing precludes the Board of directors from having a
perfectly proper meeting, properly conducted and
properly voted at to do effectively and properly what
you didn't manage to do before. And I follow all of
that. But I do think that I have a sufficient basis
upon which to hear your consequential application.
MR MACLEAN: Right. Shall I make that now?
THE DEPUTY JUDGE: Please.

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14 July 2014

Page 43

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

say -- not concessions. That's not the right phrase to
adopt -- you think perhaps your junior has been
needlessly aggressive.
MR BRISBY: No, I do not. I can't see the difference in the
two wordings.
THE DEPUTY JUDGE: Excellent. So much the better.
MR BRISBY: I want to understand if there is a difference of
substance that if there is I will then -THE DEPUTY JUDGE: Just show me the two versions now.
MR BRISBY: Can I hand your Ladyship (Handed).
MR MACLEAN: My Lady, that version is a marked up version
which shows the deferences between Mr -THE DEPUTY JUDGE: That's very helpful, thank you.
MR MACLEAN: -- Brisby's version or at least Mr Brisby's
junior's version and my junior's version.
MR BRISBY: Can I hand up a clean version, then, of our
order.
THE DEPUTY JUDGE: I don't need it because I have one that
shows both, haven't I? Actually, perhaps I should see
yours, sorry, because you're saying that -- perhaps I
should see it. (Handed). Thank you.
MR BRISBY: So, perhaps your Ladyship would rise for
a moment?
THE DEPUTY JUDGE: No, I am not going to. I'm just going to

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Submissions by MR MACLEAN QC
MR MACLEAN: We seek permission to appeal against your
Ladyship's order in relation to the order for
reinstatement of Mr Zecha. We submit to your Ladyship
that the order which your Ladyship has made is both
unprecedented and no precedence supporting such an order
was cited by Mr Brisby on the previous occasion and we
submit that it's wrong as a matter of principle. We
submit that the basis that your Ladyship adopted for
distinguishing the cases which we cited to your Ladyship
is wrong both as a matter of fact and as a matter of
law. We submit there is therefore a reasonable prospect
of success in this appeal.
By the time that this order is to be made, Mr Zecha
will not have been acting as CEO for over two months
and, pursuant to the order, his reinstatement would be
for 17 days. On the previous occasion, no explanation
was given by Mr Brisby why this particular order was
sought on an ex parte basis and your Ladyship's judgment
doesn't, in our respectful submission, identify any
reason why it was justified in relation to this
particular order.
Similarly, no explanation was given by Mr Brisby as
to why approximately two months had elapsed before the
application was made. It should never have been made on

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a without notice basis albeit on notice and, in our

submission, in the circumstances of this case,
(Inaudible) ought to have been a barrier to relief.
Your Ladyship's judgment, I respectfully submit,
identifies no evidence of the absence of Mr Zecha during
the period from when he, we say, resigned, or from when
Mr Brisby's clients say Mr Zecha was excluded have had
any deleterious effect whatsoever on the operations of
the company, or that his reinstatement as CEO for a
period of 17 days is likely to save the joint venture
company from any irreparable harm.
The only material that I could identify in your
Ladyship's judgment in relation to that was journalistic
material in which it is said that certain journalists
have blogged that they were fearful as to what the
effect of Mr Zecha no longer being around might have on
the companies.
In my respectful submission, that is no sufficient
basis for the court to make an order of this nature.
Furthermore, that the blogger was obviously uninformed
as to the terms of the shareholders agreement, which
inevitably envisage Mr Zecha stepping down from his
position as Chief Executive Officer of the company in
the event by 31 July and we therefore submit that your
Ladyship's judgment was wrong and that there is
Page 45
a reasonable prospect of success on appeal and I

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1
respectfully ask your Ladyship for permission to take
2
this matter to the Court of Appeal as a matter of
3
urgency.
4
THE DEPUTY JUDGE: I am not going to give you permission to
5
appeal, Mr Maclean. You will have to ask the Court of
6
Appeal for that.
7
MR MACLEAN: My Lady, may I then make a further application, 8
and that is an application for a stay of the order
9
pending an appeal. The reason for doing that is to keep
10
the disruption caused by what your Ladyship described on
11
a previous occasion as a swing door effect.
12
Now, it is plain, as I have submitted, that rightly
13
or wrongly -- and your Ladyship can't decide that at the
14
moment -- Mr Zecha has not been in charge of this
15
enterprise as a CEO for two months and it would be quite
16
wrong, in our respectful submission, to require the
17
temporary reinstatement which your Ladyship's order
18
envisages, and what is likely to prevent harm to the
19
joint venture from occurring is a stay of your
20
Ladyship's order pending a determination by the Court of
21
Appeal as to whether your Ladyship's order is right or
22
wrong because if it's not stayed then it may be that
23
more harm is caused to the joint venture company than
24
would otherwise be the case from the status quo. It
25

14 July 2014

would continue as it currently is, so we respectfully

ask your Ladyship to grant a stay pending an urgent
application to the Court of Appeal by my clients to
reverse your Ladyship's order.
There isn't any evidence that irreparable harm would
be suffered by the company as a result of your Ladyship
granting a stay and we respectfully ask for a stay
pending -THE DEPUTY JUDGE: I am not going to grant that and let me
explain why so that you can have the chance to address
me on that if you wish to take it into account.
MR MACLEAN: Yes.
THE DEPUTY JUDGE: The judgment which I have given gives
your clients and Mr Brisby's client but in particular
the JVC company two weeks to work out in the manner
which was contemplated by the JVC agreement who should
be the CEO after 31 July and what Mr Zecha -- we spoke
of a sort of figure head role for him. We all spoke of
that at the last hearing -- what Mr Zecha's figure head
role should be after 31 July and it gives you all two
weeks to sort that out properly in accordance with the
JVC agreement.
Even if I were minded to stay any part of the order,
which I am not, I would not be minded to stay that part
which found that Mr Doronin had not been validly

Page 47
appointed at the previous meeting and I don't know if
you wish to address me any further having heard why I am
not minded to grant you the stay you seek.
MR MACLEAN: All I would simply say is this, my Lady: that
if your Ladyship is not minded to grant a stay generally
I would ask your Ladyship to impose a stay until
midnight tonight which would give us the opportunity,
insofar as there is an opportunity, to trouble the Court
of Appeal this afternoon. I have simply no idea whether
the Court of Appeal would be prepared to hear this
matter on such a short, urgent basis and it depends on
what the Court of Appeal is doing.
THE DEPUTY JUDGE: Why is it urgent? What is the evidence
that supports the urgency of this? What is Mr Zecha
actually doing that requires this to be dealt with such
urgency? What is he doing that he shouldn't be doing?
MR MACLEAN: Mr Zecha resigned. On my client's case
Mr Zecha resigned.
THE DEPUTY JUDGE: I understand.
MR MACLEAN: If Mr Zecha resigned he shouldn't be taking
over the helm of a company of this size, particularly
when it's clear on the evidence that one of the joint
venture partners doesn't want him back and, in those
circumstances, Mr Zecha should not be exercising or
disposing of any functions as CEO until this matter can

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properly be resolved.
THE DEPUTY JUDGE: I am not prepared to grant a stay. If
you had told me that Mr Zecha was doing something that
would radically run against, run counter to the way in
which the joint venture had been run before I would have
had greater sympathy, but you have very properly not
suggested anything like that given it obviously doesn't
seem to be the case, so, no, I am not going to grant you
the stay that you have requested. I am afraid I now
have to fill out a form.
MR MACLEAN: Yes, your Ladyship does, I am afraid.
As far as the terms of the order are concerned, your
Ladyship has given us an indication as to what your
Ladyship's position is on the terms that we have sought
to insert into Mr Brisby's draft and I have heard what
your Ladyship has to say about one particular aspect of
that. Perhaps it would be appropriate for your Ladyship
to rise for a short time to see whether we can sort that
out and then we can finally get the terms of the order
finalised so at least we can have a sealed order from
the court in terms which we all understand represent
your Ladyship's order.
THE DEPUTY JUDGE: Well, I would rather you went away and
discussed it and email me something by 2 o'clock, 2.30,
if you prefer.

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

you have to make a choice about which one first.
MR BRISBY: Yes.
THE DEPUTY JUDGE: So -MR BRISBY: We will deal with Mr Maclean first.
THE DEPUTY JUDGE: Deal with Mr Maclean first.
MR BRISBY: Obviously, everything as soon as we can.
MR BROWN: My Lady, can I just raise a couple of points,
please. First, I didn't mention but should have done
that obviously in appearing today we weren't submitting
to the jurisdiction on behalf of Mr Zecha. I mean, it
is said that -THE DEPUTY JUDGE: Mr Eliasch.
MR BROWN: Mr Eliasch, I am sorry.
THE DEPUTY JUDGE: It's said that he is resident -MR BROWN: It's said that he is resident in London. He is
actually resident in Monte Carlo.
And the second point is I would like to ask for our
costs of having to appear today. This could have been
all dealt with all properly on notice. The application
was actually issued after the claimant knew that the
Board meeting had been arranged for 21 July. We were
very ready to give the undertakings that we did give and
really this shouldn't have been dealt with by dragging
me and my instructing solicitors down to court this
Page 51

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morning.
THE DEPUTY JUDGE: Well, as I understand it, there is some,
perhaps, misunderstanding between yourself and Mr Brisby
as to the nature of the conversation that you had,
whether it was open or without prejudice. You are not
able, as I understand it, to show me a letter or email
offering these undertakings openly. You have given
undertakings to the court so I am not going to give you
your costs today. But I will allow, even though you
have come along without proper notice, your costs, as
well as Mr Brisby's costs, will be costs in this
application when it comes on for hearing next week -no, later this week.
MR BROWN: Later this week. Thank you, my Lady.
(12.27 pm)
(The hearing adjourned)

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

THE DEPUTY JUDGE: Thank you. But if you could just wait
while I fill out this wretched form.
MR MACLEAN: My Lady, yes.
THE DEPUTY JUDGE: And I will tell you what I'm writing so
that you know.
(Pause).
My ruling requires the parties to abide by clear
terms -- I should put "the clear terms" -- of the
written agreement, the shareholders agreement, until
a full hearing of the inter partes injunction
application. It does not permit either party greater
latitude than that. I therefore believe there is no
reasonable prospect of success.
That's what I am writing down.
Is that it for now?
MR MACLEAN: That is it.
MR BRISBY: My Lady, we will endeavour to get either
an agreed version back to your Ladyship or else two
competing versions with presumably some explanation of
what the difference is and, equally, if I may suggest
your Ladyship, having suggested Mr Brown should produce
the minute in relation to the other order, that should
be done within the same timeframe.
THE DEPUTY JUDGE: Well, I would like you to focus on this

14 July 2014

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A
abide 50:8
ability 19:11
able 6:4 13:12
23:10 40:14
52:6
abridge 34:7
absence 45:5
absolute 22:1
absolutely 3:2
accept 1:8,15
12:19 14:8,10
14:10,11
acceptable 39:13
accepted 19:7
22:19 38:18
accommodate
34:16
accompanied
21:10
account 47:11
acknowledge
23:2
act 9:20 28:6
29:18 31:21
acting 24:17
30:2 44:15
action 4:16,21
12:12,12
active 14:6,7
add 18:15 34:19
36:9
added 11:3,16
13:20 15:4
16:3 17:22
35:16
addition 16:6
30:5
additional 11:2
11:16 13:19
15:4,19 17:22
36:9
address 5:2 8:7
34:24 47:10
48:2
adds 28:17
adequate 37:15
adherence 15:22
adjourn 6:18
22:1 33:2
36:20 38:23
adjourned 17:25
35:17 39:1
52:16
adjournment
22:17
adjudicate 2:9
2:18 5:14 7:9
adopt 14:14 42:3
adopted 44:9
adoption 15:21
advance 27:16
34:14
afraid 49:9,11
afternoon 48:9

agenda 9:16 11:3

11:17 13:20
15:5,19 17:22
18:2 21:10,20
34:20 35:16
36:10,22 37:2
37:8 39:5,11
39:12
aggressive 42:4
ago 8:10 26:25
agree 2:11,13
5:24 19:11
21:16,23 36:18
36:25
agreed 1:15 3:18
4:4 17:15,17
22:24 50:19
agreement 4:6
4:12 5:11 7:19
9:17,23 10:5
12:16 17:24
19:10,17 20:10
20:11,18,19,24
23:16,24 24:2
25:8,13 26:24
27:23 28:6
29:1,10,23
30:4,5,6,6,7,7
31:22 35:10
39:7 45:21
47:16,22 50:10
50:10
agreements
12:15,20
agrees 29:5
Ah 24:19
ahead 37:4
aid 21:22
albeit 3:23 45:1
alia 12:13
allow 52:9
alterations 1:12
Alternatively
12:17
Amanat 15:18
26:7 41:5,6
ambush 35:6
amount 12:19
and/or 21:12
29:24
answer 19:25
answerable 17:3
answers 10:16
anybody's 33:20
anyway 4:4
23:20 33:24
apart 43:14
apologise 17:15
apparent 37:23
apparently
37:25
appeal 6:23,25
7:1,6,17 8:3
14:11 44:2,13
46:1,3,6,7,10
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appearing 51:10
application 3:11
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8:11,19,25 9:2
9:6 17:10 31:3
31:7,10,12,15
32:14 33:17
34:4,9,13 40:9
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46:8,9 47:3
50:12 51:20
52:12
applications 6:7
applies 28:18
apply 21:17
27:13 28:13
applying 8:2
appoint 21:6
26:19,22 28:19
appointed 14:9
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27:19 29:18
43:11 48:1
appointee 10:1
appointment
43:9
appointor 15:11
appreciated 38:9
appreciates 8:1
apprehend 36:1
appropriate
15:21 24:3
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approval 16:4,8
19:5
approximately
44:24
ARDL 26:16,16
ARGL 26:16
argument 18:23
arises 3:10
arising 1:19
arose 17:21
arranged 35:20
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arrangement
16:9,11
arrangements
10:8 27:5
asked 5:23,23
28:11 35:18
38:19
aspect 49:16
assist 13:12
assure 15:22
asymmetry 11:9
attach 15:4,7
attempt 2:12
6:20 18:8
attempts 2:10
22:15 34:18
43:15
Austin 13:10

35:3
authorise 36:8
39:4
avoidance 28:12
B
B 14:23 15:8
19:10 20:23
21:5,15,23,25
24:23 26:10
back 2:17 5:7,14
5:18,25 14:12
19:23 21:1
36:16 38:14
40:9,17 48:23
50:19
background
25:3
backwards 2:15
5:5
barrier 45:3
bars 14:17 16:13
based 24:14
30:19 31:20
33:6 35:24
baseless 34:17
Basically 10:23
basis 5:10,20
27:19 29:21
33:14 43:22
44:9,19 45:1
45:19 48:11
battle 6:20
beginning 25:9
behalf 13:5
41:20 51:11
believe 18:20
50:13
benefit 31:21
Berwin 2:1 3:2
best 2:19 40:18
better 17:16
33:13 42:7
beyond 27:9
bide 8:21,22
bit 10:14 40:11
bite 8:22
blindingly 33:23
blogged 45:15
blogger 45:20
Board 9:15,25
10:3,5,9,21
11:3,14,15,16
11:23 12:9
13:2,14,20
15:5 16:4,6,8
17:5,13,23,24
18:1,17,18
19:3,5 21:3,14
23:15 24:4,9
26:5,7 27:2,6
27:10,12,16,20
28:2,19 31:9
32:6,10 33:3,7
33:12,14,22
34:6,18,21

35:6 36:9 39:5

39:7 43:18
51:22
Boards 26:21
35:1
bound 33:7,7
bounds 32:22
33:21
breach 30:3
breaches 12:19
29:1,23
brief 32:19
Brindle 1:25
Brisby 1:21,22
1:23 2:14,21
3:10,16,18,22
4:2,6,11,14,21
5:9,15 6:15 7:5
7:10,12 8:19
8:23 9:4,9,12
10:13,16 11:20
11:24 12:1,7
12:10 13:2
14:7,10,21
15:1,3,25
16:18,21 17:1
17:7,12,17,21
18:8,11,17,25
19:13,15,18,22
20:4,7,9,11,14
20:16,18,23
21:5 22:8,23
23:3,6,12,16
23:23 24:1,6
24:19,23 25:3
25:7,11,14,17
25:25 26:3,5
26:10 27:2,16
27:21,23,25
28:4,11 30:12
30:15,19 31:17
32:1,8,16,19
32:25 33:9,18
34:11,25 35:9
35:21 36:5,24
37:5,13,17,21
38:10 39:19,25
40:2,11,14,16
40:21 41:5,7
41:10,13,17,22
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34:1,2,3,24

www.merrillcorp.com/mls

37:20 38:3,5,8
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compensation
27:4

8th Floor 165 Fleet Street

London EC4A 2DY

Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors

14 July 2014
Page 54

competing 2:5
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decision 16:7

Merrill Corporation
(+44) 207 404 1400

decisions 32:11
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7:5 41:18,24
41:25 49:10
50:3

8th Floor 165 Fleet Street

London EC4A 2DY

Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors

14 July 2014
Page 55

formal 9:7
forms 1:12
formulated 6:5
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6:10 7:1
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Merrill Corporation
(+44) 207 404 1400

34:4,9 36:14
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8th Floor 165 Fleet Street

London EC4A 2DY

Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors

14 July 2014
Page 56

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(+44) 207 404 1400

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London EC4A 2DY

Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors

14 July 2014
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(+44) 207 404 1400

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London EC4A 2DY

Peak Hotels & Resorts Ltd v Tarek Investments Ltd & Ors

14 July 2014
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wrong 36:25
44:8,11 45:25
46:17,23
wrongly 46:14

48:18,20,24
49:3 51:11
Zecha's 14:12
47:19
1
1 1:9 27:13 29:14
10 41:3
10.00 39:23,24
39:24 41:7,12
41:13
11 13:3
11.00 1:2
12 31:1
12.00 40:7 41:14
12.27 52:15
14 1:1
150 29:13
17 44:17 45:10
179 25:9,10

6
6 15:20 21:1
28:13
6.1B 21:2
6.2 21:8
62C1 21:16
7
7 18:1
8
8 20:16,24
8.00 35:19

2
2 14:2 21:17
49:24
2.00 41:10
2.30 49:24
2014 1:1 20:18
43:9,12
21 17:8 51:22
21st 31:9 35:21
39:8
22 30:24
24 13:16
25 16:13
26 16:23
3
3 14:21 15:18
23:4,9 25:17
3B 28:18
3.00 13:3 17:23
3.3 28:12
3.9 28:11
303 14:22
31 20:18 43:9,12
45:24 47:17,20
32 30:24
338 15:12
339 15:25
36 30:10,13
36.21 30:17

Y
York 41:1,2

4
4 15:18 20:16
25:11
4.1A 29:3
4.2A 28:21 29:3
4.2B 29:4

Z
Zecha 13:22
14:16 37:9
44:4,14 45:5,7
45:16,22 46:15
47:17 48:14,17

5
5 39:20 40:6
5.1 31:16 34:22
5.1.2 43:10
5.2 31:18 34:22
5.3 32:3,5,13

Merrill Corporation
(+44) 207 404 1400

34:13

www.merrillcorp.com/mls

8th Floor 165 Fleet Street

London EC4A 2DY