VITALY ORLOV v. MAGNUS LEONARD ROTH AND ANOTHER

HCMP 1331/2017 and

HCMP 2753/2017

(Heard Together)

[2019] HKCFI 875

HCMP 1331/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1331 OF 2017

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MISCELLANEOUS PROCEEDINGS NO 2753 OF 2017

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(Heard Together)

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REASONS FOR DECISION

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INTRODUCTION

1.  I have before me two summonses for specific discovery.  The summonses are issued within unfair prejudice petition proceedings in respect of Three Towns Capital Limited (“TTC” or the “Company”). HCMP 1331/2017 is an unfair prejudice petition taken out by Mr Vitaly Orlov (“Orlov”) (the “Petition”). HCMP 2753/2017 is the unfair prejudice petition taken out by Mr Magnus Roth (“Roth”) (the “Cross-Petition”). 

2.  The Petition and Cross-Petition have been ordered to be tried together.  A split trial on liability and valuation has been ordered.  The trial on liability has been fixed for 10 days commencing on 3 July 2019.

3.  The two summonses for specific discovery are as follows:

 (1) Orlov’s Summons dated 26 October 2018 seeking 8 categories of documents;

 (2) Roth’s Summons dated 23 November 2018 seeking 14 categories of documents.

4.  By the time of this hearing:

 (1) There are 3 outstanding category requests on Orlov’s Summons;

 (2) There are 6 outstanding category requests on Roth’s Summons.

LEGAL PRINCIPLES

5.  There is no issue as to the applicable legal principles.

6.  The general test is that an applicant seeking an order for specific discovery must make out a prima facie case that:

 (1) A specified document or class of documents exists and has not been disclosed;

 (2) The respondent has or had the documents in his possession, custody or power;

 (3) The documents sought are relevant to a matter in question in the action; and

 (4) The discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs.

See Li Tak Yee Samuel v Sociéte Générale Bank & Trust (unreported, HCA 2478/2009 and HCA 1198/2011, 16 April 2013) at §24 per Anthony Chan J. 

7.  Further:

 (1) The class of documents sought must be identified with precision and be adequately specific to allow the party giving discovery to be clear what it is that he is required to disclose.  The class must not be defined or described so widely so as to include documents which are not relevant to the issue.  Nor must it amount to a request for all documents bearing upon an issue.  A request which is too wide or imprecise is oppressive in nature, but where appropriate the Court can apply a “blue pencil test” to amend the scope of the request.

 (2) The broad Peruvian Guano test remains the test of relevance, and in considering relevance the Court should assess the pleadings holistically and broadly with reference to the substantive subject matter of the dispute.  However, “fishing” is not allowed, and discovery should not be oppressive.

 (3) The requirement of existence of documents may be satisfied by specific facts deposed to or by inference from surrounding circumstances, for example where it is common business practice for a certain type of document to exist.

 (4) Statements in a party’s affidavit of documents are conclusive.  The respondent may answer an application for specific discovery by an affidavit stating that he does not have the documents, and this will be conclusive at the interlocutory stage.

 (5) The court should take into account the objectives of the CJR, which are to promote proportionality, cost effectiveness and fairness between the parties, in considering any discovery application.

 (6) If a prima facie case for discovery is established, it is for the respondent to satisfy the court that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.  If the probative value of the documents sought is so small that it does not justify the inconvenience of giving discovery, or if the discovery sought is not necessary for determining the issue to which it was said to relate, the specific discovery application may be refused.

See Li Tak Yee Samuel v Sociéte Générale Bank & Trust at §§25 – 28, 36 – 39 per Anthony Chan J; K&L Gates v Navin Kumar Aggarwal (unreported, HCA 1061/2011 and HCA 349/2012, 27 November 2017) at §§15 – 19 per Lok J; Ngan In Leng v Chu Yuet Wah (No 1) [2013] 1 HKLRD 717 at 729, §42 per DHCJ Au-Yeung (as she then was); and Lee Sai Nam v Lee Shu Chung (unreported, HCA 1711/2009, 10 January 2014) at §§47 – 50 per DHCJ Marlene Ng (as she then was); Elliott International LP v Bank of East Asia Ltd (No 1) [2018] 4 HKLRD 396 at §16, per Harris J.

ORLOV’S SUMMONS

8.  Orlov’s Summons seeks an order that Roth make and serve an affidavit stating whether Roth has, or has at any time had, in his possession custody or power the documents specified in the Schedule (inter alia).  The outstanding document requests are those listed at items 2, 6 and 7 of the Schedule to Orlov’s Summons.  I will address each in turn.

Item 2: “ Documents evidencing the sale of Katla by Samherji to MTF”

9.  The pleaded issues:

 (1) Roth alleges that “In June 2013, MTF, under Mr Orlov’s direction and control, purchased the entire issued share capital of Katla”: Amended Cross-Petition §19; Orlov denies that the purchase by MTF was made under Orlov’s direction and control:Amended Points of Defence in Cross-Petition §15.

 (2) Roth further alleges that he had been initially opposed to such sale of Katla to MTF but had withdrawn his opposition on the basis of various oral representations made to him by Orlov:Amended Cross-Petition §24.  Orlov denies that, and asserts that he and Roth discussed and agreed that Katla would be a costs centre, and the management fees paid to Katla would only be sufficient to generate a small profit: Amended Points of Defence in Cross-Petition §17.

 (3) There are separate allegations made by Roth as to the later purchase of Katla by the Company: Amended Cross-Petition §25 et seq;

 (4) Roth also alleges that, two years earlier, at the end of 2011, Norebo under Orlov’s direction and control, purchased MTF: Amended Cross-Petition §17.l Orlov denies that such sale of MTF to Norebo was under his control and direction, and alleges that the sale was carried out with Roth’s full knowledge and consent, and that Roth became a director of MTF after its acquisition of Katla in June 2013: Amended Points of Defence in Cross-Petition §12.

10.  Mr Chain, very fairly, pointed to the fact that §15 Amended Points of Defence in Cross-Petition repeated §14 which in turn pleaded at sub-para (b) that Roth was involved in the operational control of Norebo and its subsidiaries and major decisions were discussed with him including the purchase of MTF.  However, if Roth’s knowledge of the sale of Katla to MTF were in issue, I would expect it to be directly pleaded.

11.  Orlov, according to Ms Day’s evidence, seeks this category of documents on the basis that if Roth does have in his possession, custody or power any documents evidencing the sale of Katla to MTF, it would strengthen Orlov’s case that the transaction was carried out with Roth’s full knowledge and consent.

12.  Firstly, I am not satisfied that Roth’s knowledge about the sale of Katla to MTF in 2013, as opposed to the sale of MTF to Norebo in 2011, is a pleaded issue and therefore relevant.  I do not consider discovery to be appropriate as I am not satisfied of its relevance.

13.  Secondly, as Mr Chain points out, the request is drafted in terms suggesting that the issue is whether the sale of Katla to MTF occurred at all,not Roth’s knowledge thereof.  The request as drafted has not been justified.  This is not a matter for a blue pencil exercise but (if it were appropriate) a complete re-draft.

Item 6: “ Advice from and instructions to Stephenson Harwood in relation to Mr Mansfeld’s status as an alternate director, including but not limited to:

a.     the advice on which Mr Roth relied in making the statement referred to in §96 of his Points of Defence [in the Petition] (to the extent not included in the Memorandum);

b.     the advice on which Mr Roth relies in paragraph 98 of his Points of Defence [in the Petition] as explaining his change of position;

c. all other advice on the same issue; and

d.     all instructions in relation to the advice.”

14.  Pleaded issues:

 (1) One of Orlov’s complaints of unfairly prejudicial conduct is that Roth took steps to deny his right to appoint an alternate director (namely Mr Mansfeld) in circumstances where there were simply no legally justifiable reasons to do so: Amended Petition §§29 – 42.  In particular he asserts that Roth relied on a Stephenson Harwood memorandum of advice which, Orlov alleges, was incorrect in law, and which could be inferred to have been prepared on the instructions of Roth or the third director; that such memorandum did not set out independent advice; and that it was not prepared in the best interests of the Company.

 (2) Roth admits the reliance on the Stephenson Harwood memorandum to refute the appointment of Orlov’s alternate director, but asserts his belief that the advice was correct, and that he relied on the advice in good faith and in the best interests of the Company until advised that the Company’s articles empowered the appointment of an alternate director without limitations, and asserts he will rely on the full content of the memorandum at trial: Amended Points of Defence §§93 – 106.

 (3) Whether or not Orlov was acting in good faith in relying on the Stephenson Harwood memorandum to refuse to recognize Roth’s alternate director until July 2017 is certainly in issue in the proceedings. Further, Orlov makes clear his intention to rely on the memorandum in full.

15.  In these circumstances:

 (1) It seems to me that the instructions to Stephenson Harwood are relevant and necessary in order to fully understand the Stephenson Harwood memorandum.

 (2) I had understood §98 of his Points of Defence to indicate that after having received the later contrary advice, implicitly from Stephenson Harwood, Roth instructed his own lawyers HWB to take certain action.  Mr Chain stated in his oral submissions at the hearing that the contrary advice of July 2017 was actually given by HWB.  Clearly, Orlov and his legal team had not appreciated that, hence their request for all advice from Stephenson Harwood.  Mr Chain valiantly tried to submit that the pleading could be read to indicate that HWB gave the relevant new legal advice but I do not accept that.  Nor has it been stated in Roth’s evidence on this Summons.  This lack of clarity by Roth in the context of Orlov’s request for the July advice is unhelpful and counter-productive.

 (3) I am persuaded by Mr Lam that it would be appropriate to order discovery of any advice to the Company relevant to Roth’s position on Orlov’s alternate director from December 2016 to July 2017 in order to explore Roth’s assertion of acting on legal advice rather than in bad faith between December 2016 and July 2017.

 (4) Insofar as the request only seeks Stephenson Harwood advice, I can only make an order to that extent.  In light of Roth’s very belated disclosure of the fact that HWB gave the July 2017 advice, I can only express hope that a constructive attitude will be taken in respect of any other disclosure requests.

16.  Roth argues that Roth and Orlov accept that there was a quasi-partnership, that there has been a breakdown of trust and confidence, and that there should be a buy-out order.  Accordingly, Roth argues, the trial on liability is only concerned with allegations relevant to whether there should be an adjustment to the buy-out price rather than examining all allegations of unfairly prejudicial conduct; and the alleged refusal of Roth to recognise Orlov’s alternate director between December 2016 and July 2017 would not have a bearing on the buy-out price.  I found that submission in Mr Chain’s skeleton argument surprising. Orally, Mr Chain developed the argument to say that the primary allegations in the Petitions related to the acquisition of Katla, and that, whether Orlov or Roth’s version of events was accepted, unfairly prejudicial conduct would be found one way or the other. On that basis, Mr Chain argued, unrelated unfair prejudice allegations would not need to be addressed, and this would be apparent to the trial judge so there was no necessity to order discovery to fully try those other issues[1]. This approach to the case has not been previously articulated, according to Mr Lam.  He urged me not to pre-empt any potential limitation of the scope of the trial by the trial judge.  I agree I can only approach an interlocutory application on the basis of the shape of the trial as indicated by the pleaded issues and existing court directions.  In the absence of any limitation on the scope of the trial on liability, I proceed on the basis that the parties will seek to establish all their pleaded allegations of unfairly prejudicial conduct in order to be able to make submissions as to who should have to buy out the other, and at what price.

17.  Roth initially argued that the documents sought under this category are privileged, but Mr Chain did not pursue this at the hearing.  In any event, the Stephenson Harwood advice was advice to the Company.  Having regard to Re NDT (BVI) Trading Ltd[2009] 2 HKLRD 409 at para 14:  

 (1) Any privilege would be that of the Company, not Roth, a shareholder.

 (2) One shareholder cannot claim that legal advice to the Company is privileged from disclosure to another shareholder.

 (3) In any event, Roth has voluntarily disclosed the Stephenson Harwood advice, and cannot give selective disclosure but must disclose the full picture on the same issue so far as relevant.

18.  I therefore grant Orlov the order sought in respect of Item 6.

Item 7: “ Documents in relation to the signing of the Declaration by Mr Klock and the matters set forth in the Declaration”

19.  Pleaded issues: 

 (1) Orlov alleges:

 (a) Lispa Holding SLU (“Lispa”) is and was at all material times a company incorporated in Spain and wholly-‌owned by TTC (ie the Company); in turn, Lispa is the sole owner of Baltlanta, a Lithuanian company, which is the only fishing company left in the TTC group and is vital to the ongoing financial health of the TTC group: Amended Petition §61A.

 (b) Without Orlov’s prior knowledge or approval, Mr Klock signed a declaration before a notarios publicos in Las Palmas, Spain on 22 September 2017 (“the Declaration”).  It stated that (i) TTC, as the sole shareholder of Lispa, had passed a resolution on 22 September 2017 to amend the by-laws of Lispa, such that Lispa was no longer required to have two directors and (ii) Mr Klock was appointed as the sole director of Lispa for an indefinite term: Amended Petition §61H.

 (c) The Declaration is false and was to procure the registration of Mr Klock as the sole director of Lispa.  No such resolution was ever passed by TTC: Amended Petition §§61I – 61J.

 (d) By such conduct, Roth excluded Orlov from the management and affairs of Lispa: Amended Petition §61O–P.

 (2) In response, Roth pleads that:

 (a) It was necessary to terminate Ms De Mata’s appointment as a director of Lispa;

 (b) This was duly done under Spanish law by the passing of resolutions of Lispa on 22 September 2017 by Roth on behalf of TTC as Lispa’s sole shareholder: Amended Points of Defence in the Petition §125D(3).

 (c) Mr Klock, as the duly appointed sole director of Lispa, issued a certificate on 22 September 2017 certifying that the resolutions had been adopted by Lispa: Amended Points of Defence in the Petition §125D(4).

20.  The circumstances in which Mr Klock made the Declaration are clearly an issue in dispute, and documents relating thereto would be relevant.  Roth resists discovery on the ground that the Court will inevitably make a buy-out order and the only relevant issues are those going to whether there should be an adjustment to the buy-out price, and issues surrounding the Declaration are not relevant; and discovery is not necessary.  As addressed above, I do not accept this argument.

21.  Roth’s written submissions in response to Orlov’s Summons assert that, in any event, Roth provided this category of documents to Orlov by letter of 24 March 2019.  I am informed by Orlov’s counsel that this piecemeal discovery is unsatisfactory in the absence of any confirmation from Orlov as to the completeness of the discovery provided on the issue.

ROTH’S SUMMONS

22.  Roth’s Summons seeks (inter alia) an order that Orlov make and serve an affidavit stating whether Orlov has, or has at any time had, in his possession custody or power certain classes of documents.  The outstanding document requests are those listed at items 4 to 9 of the Schedule to Roth’s Summons.

23.  The evidence in support of Roth’s application in this regard is to be found in Ms Day’s affirmation dated 23 November 2018 at §§38 – 51. Essentially it is said that Orlov has not disputed the relevance or existence of this category of documents; indeed, he has provided many documents under these categories.  However, Orlov claims there is reason to believe the documents provided are incomplete.

24.  Orlov’s evidence in opposition is at Ms Cabrelli’s 2^nd affirmation dated 13 February 2019 at §§23 – 32. Essentially it is said that:

 (1) Ms Day’s grounds for believing there are further undisclosed documents for category items 4 to 6 and 8 are incorrect.

 (2) In respect of category items 4 to 8, for the avoidance of doubt “I am informed by Mr Orlov and verily believe that he does not have, and as far as he is aware has not at any time had in his possession, custody or power any documents within [these categories] apart from those already disclosed.”

 (3) In respect of category item 9, that Ms Day has not particularised the alleged missing documents or explained why they would be relevant.

25.  Generally, I take the following approach:

 (1) If Roth does not establish grounds for believing there are further documents in the class which have not been disclosed, then he has not discharged his burden to show an existence of further relevant documents and the court has no jurisdiction to make a discovery order.

 (2) If there is reason to believe there are further undisclosed relevant documents that are or have been in Orlov’s possession custody or power, and they are necessary for a fair trial (or saving of costs) then an affidavit from Orlov himself rather than hearsay evidence from his solicitor should be provided to address whether the documents are or have ever been in Orlov’s possession, custody or power, and if so, what became of them.  I note both parties’ counsel accepted that a solicitor’s affidavit was not, in contrast to a party’s own affidavit, conclusive evidence for the purposes of resisting a discovery order.

 (3) I will address each category in turn.

Item 4:    Documents and correspondence in relation to the acquisition by MTF of Katla Seafood in 2013

26.  Alleged incompleteness of discovery: 

 (1) Document MACS-000471 has been disclosed by Orlov.  Roth states that on its face it refers to having an attachment but none has been disclosed.  Orlov responds that the email does not refer to having an attachment.  I can see below the subject line,there is an attachments line “rtf-body.rtf”.  Mr Lam orally sought to explain that this phrase simply shows the forwarding of an email—this, he said, was something known to him and seemed obvious.  Mr Chain stated he was not aware of such a technical meaning.  I, no doubt less technically literate than Mr Lam, am not aware of such technical meaning and cannot take judicial notice of such a matter.  This has not been explained in evidence.  More telling perhaps, Ms Cabrelli’s 2^nd affirmation §23(a) states that the email had no attachment and does not refer to having an attachment, the latter part of which is plainly wrong.

 (2) Document MACS-000001 has been disclosed by Orlov.  It refers to receipt of information.  Roth states such information has not been disclosed.  Orlov responds that the email does not say whether the information was contained within a document, nor does Roth explain why such information would be relevant. I can see that the email is from Orlov to Helgason dated 22 January 2013 with subject “katla” and states: “While we are studying your information (received with thanks!) and anticipating the remaining info, I would like to ask whether you had a chance to speak with your bank to check their interest to finance part of the acquisition?”  It seems to me thatinformation being studied is likely to be in written or electronic form, and that the information is likely to be relevant to the acquisition of Katla.  Roth has established it is prima facie relevant and in existence.  Clearly Orlov had the information at the time of writing the email.  I agree that such information ought to be disclosed if Orlov has possession custody or power,and that Orlov should himself address the matter on affidavit.

 (3) Document MACS-001717 is a document referring to board minutes, which Roth complained were undisclosed.  It has now been clarified that such minutes were disclosed.

27.  Roth has successfully given two examples of apparently undisclosed relevant documents in the possession of Orlov at some time.  Orlov should make an affidavit as sought in Roth’s Summons addressing item 4.

Item 5:  Documents and correspondence relating to the reduction of agency  fees paid by MTF to Katla pursuant to the Agency Agreement  and the decision to enter into and execution of the First Agency  Agreement Amendment, Second Agency Agreement Amendment and Third Agency Agreement Amendment

28.  Alleged incompleteness of discovery: 

 (1) Document MACS-001833: 

 (i) This is an undated document prepared by KPMG in 2014 in respect of a controlled transaction described as acquisition of agency services for fishing vessels management.  Roth complains there are no surrounding documents showing the sending and receipt of the document, instructions to KPMG to prepare the document and/or follow-up correspondence. Orlov responded that the same document was disclosed elsewhere with an email from Ms Oleynik to Soling Yip dated 29 December 2014.  Roth responded that the disclosed accompanying email was actually from Ms Yip to Ms Savina with a 12 January 2015 date — I did not understand this submission on the evidence and it was not clarified at the hearing.  At the hearing, Orlov stated that the accompanying email had been disclosed;and Roth made no further submissions.

 (ii) Whilst the reduction of agency fee issues, and the identity of persons involved in the negotiations, are clearly relevant to the unfair prejudice allegations in the proceedings, Roth has not prima facie established the existence of further documents relating to this KPMG report.

 (2) Document MACS-001730: 

 (i) This is an undated financial statement for Katla and related party transactions for the year ended 2013.  Rothcomplains there are no surrounding documents showing who prepared the document, when and to whom and by whom it was sent.  There is an issue on the pleadings as to where documents relating to Katla’s financial status came from, at whose request and to whom they were sent.

 (ii) Orlov in response disputed the relevance of the surrounding circumstances, but to put the matter to rest provided copies of an email chain.

 (iii) Mr Chain submits that whether or not this is the correct covering email, the belated disclosure shows the original disclosure by Orlov was not complete or reliable.

 (iv) Roth has established prima facie inadequate disclosure in this category.

29.  On the basis of Roth having established apparently undisclosed relevant documents in the possession of Orlov at some time, Orlov should make an affidavit as sought in the Orlov Summons addressing item 5.

Item 6:  Documentation and correspondence relating to the appointment of KPL including correspondence with Ms Olga Savina, Ms Soling Yip, and Mr Klock

30.  There is a disputed issue as to the level of involvement of Orlov in dealing with KPL as to the valuation of Katla for MTF.

 (1) Roth points out that Orlov has not disclosed any documents in this category.  I agree it seems highly likely that there would be some documents relating to the appointment of KPL to value Katla for MTF.

 (2) Orlov asserts that he was not involved and, to the best of his knowledge, Ms Klock, Ms Yip and Ms Savina were involved in that exercise.  Orlov says (by the indirect evidence of his solicitor) that he has no such documents in his possession custody or power, and that he has already done a comprehensive search and it would be unnecessary and disproportionate to order discovery.  Roth challenges the lack of possession custody or power on the basis that MTF is 82% owned by Norebo which is 100% owned by Orlov.  I agree that does tend to suggest power at least.

 (3) I am also not impressed by Orlov’s argument on necessity and disproportionality as if Orlov has indeed done a reliable and comprehensive search, he should be able to make an affidavit without much further effort.

 (4) Additionally, I am concerned that Orlov may not have done a comprehensive search.  It is not clear to me that documents relating to the appointment of KPL would necessarily contain 1 of the 3 search terms of MTF, Katla, or Murmansk Trawl* Fleet.  At first blush, Kozyr or KPL would be more appropriate as search terms.  I do not attempt to identify the appropriate discovery exercise myself, but I am not satisfied that Orlov’s discovery as described is reliable.

31.  On the basis of Roth having established the likelihood of undisclosed relevant documents in the power of Orlov, Orlov should make an affidavit as sought in the Orlov Summons addressing item 6.

Item 7:     Documents and evidence of the agreement that the management  fees paid by MTF to Katla would only be sufficient to generate a small profit

32.  Orlov has pleaded that he and Roth discussed and agreed that (inter alia) the management fees paid to Katla would only be sufficient to generate a small profit: Orlov’s Reply to Petition §15(c).  I agree that in usual business practice, one might expect there would be some documentary record of such agreement (however informal), that any such document would be relevant and could be expected to be in Orlov’s possession.

33.  Ms Day’s evidence on behalf of Roth points to the disclosure of one document by Orlov in this category and asserts that its relevance to the request is unclear.  Ms Cabrelli’s evidence responds that following an electronic search by Orlov using certain key terms, this document was identified, and therefore disclosed (but does not dispute the irrelevance of the document).  That does rather suggest an unsatisfactory discovery process.  One might think that where search terms throw up an apparently irrelevant document, one would question the search terms used; or at least conclude the document was not relevant and therefore not disclose it.  I am not sure that the search terms used would necessarily identify all documents in this category.  Further, there is no reference to any common-sense searching of relevant folders/‌dates rather than a mere blanket electronic search.

34.  On the basis of Roth having established the likelihood of undisclosed relevant documents in the possession of Orlov at some time, Orlov should make an affidavit as sought in the Orlov Summons addressing item 7.

Item 8:    Documents and correspondence relating to the valuation of Katlafor the purposes of the “New Valuation” and/or the “Purchase Price” under the SPA and the decision to enter into and execution of the First SPA Amendment and Second SPA Amendment

35.  Roth’s Cross-Petition §52 complains that the following are unfairly prejudicial conduct:

 (1) Procuring the New Valuation without providing identified documents and information and/or providing inaccurate information to KPL, without the knowledge of the Company’s board or Roth personally; and 

 (2) Permitting the increase of the purchase price of Katla from US$9.9 million to US$10.5 million without the agreement of the Company’s board or Roth personally.

36.  One would expect documents to exist to show who sent what information to KPL, and who was involved in that correspondence; and alsofor documents to exist addressing the decision to increase the purchase price. As the sale of Katla was from MTF to the Company, one would expect the documents to be in the possession custody or power of Orlov.

37.  Orlov has disclosed 10 documents under this category.  Ms Day’s evidence (on behalf of Roth) says only one is an email, and that cross-refers to another email which has not been disclosed.  However, the email disclosed is in Russian and has not been translated.  I am quite unable to see if it refers to another email and Roth’s counsel was unable to shed light on that.  In my view, Roth has not established that Orlov’s discovery in this regard is incomplete.  I am not persuaded that other relevant documents in this category exist.

Item 9:    Documents and correspondence relating to the decision to transfer ownership of Katla from MTF to TTC in December 2013 and subsequent execution of the SPA

38.  Roth complains in his Cross-Petition at §53(1) that Katla was sold by MTF to the Company at an overvalue.  I accept that the terms and basis for the sale, and who was involved in deciding to make the transfer, are relevant issues in the proceedings.  I would also expect such documents to exist and to be in the possession custody or power of Orlov.

39.  However, Orlov has disclosed 41 documents under this category.  Roth has barely asserted through Ms Day’s affirmation §50 that it is clear from some embedded emails that there are draft agreements and transfer pricing reports as attachments that have not been disclosed.  Roth’s evidence does not identify any such emails.  Ms Cabrelli’s 2^nd affirmation states she does not know which emails give rise to concerns of incompleteness, and refers to one email chain which does attach a draft transfer pricing report.  Ms Day’s evidence in reply takes the matter no further forward.

40.  I am not satisfied on the evidence before me that the discovery under this category is incomplete and that other relevant documents exist.

CONCLUSION

41.  On Orlov’s Summons, I grant the relief requested in respect of items 6 and 7 (but not item 2).

42.  On Roth’s Summons, I grant the relief requested in respect of items 4 to 7 (but not items 8 and 9).

43.  Roth agreed to give an undertaking to reflect his agreement to the relief sought in items 1, 3, 4, 5 and 8 of Orlov’s Summons.

44.  In turn, Orlov agreed to give an undertaking to reflect his agreement to the relief sought in items 1, 10 and 14 of Roth’s Summons.

45.  Mr Chain clarified that on Roth’s Summons, items 1, 10 and 14 were addressed by the Orlov undertakings; items 4 to 9 were addressed by this Decision; items 2 and 3 had not been pursued; and he sought no order on items 11 to 13.

46.  In a nutshell:

 (1) Orlov was successful on 7 out of 8 of his requests;

 (2) Roth was successful on 4 out of 11 requests (Orlov agreed to 3 requests after Roth reformulated the requests, so I do not count these as successful requests on the Summons).

47.  Taking a broad brush approach to reflect the general rule that costs follow the event:

 (1) On the Orlov Summons:  Costs be to Orlov, to be taxed if not agreed.

 (2) On the Roth Summons:  No order as to costs.