KOMAL PATEL AND OTHERS v. CHRIS AU AND OTHERS

HCA 183/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 183 OF 2014

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BETWEEN

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Introduction

1.  On 25 March 2014, at an inter partes hearing, the plaintiffs made an urgent application for an injunctive order against the defendants.[1]  At the conclusion of the hearing, I stood over the application to the next day for my decision.[2]  In the meantime, on 26 March 2014, I received further written submissions and materials under cover of letters from the solicitors of the parties.[3]  At the convened hearing on 26 March 2014, I granted the application with a minor amendment to the terms of the injunctive order that was sought but otherwise I made the order in the terms applied for by the plaintiffs.  I said that I would hand down my reasons later which I now do.  At the time, Mr Charles Sussex, SC, for the defendants made application for leave to appeal and to stay my decision which I refused.

Procedural history

2.  On 29 January 2014, the plaintiffs made an ex parte application for a freezing injunction order against the defendants which I granted based on the material before me.  The underlying claim concerned a business interest that the parties had in a restaurant and bar known as Ku De Ta in Singapore.  The plaintiffs claimed that the defendants were accountable to them as constructive trustee for misappropriated or misapplied monies of the plaintiffs, secret profits received by the defendants, and other property of the plaintiffs which had been misappropriated by the 1^st defendant or persons acting under his control.  The 3^rd defendant was the operating company through which the parties held their interest in the business.  The 2^nd defendant was the nominee and trustee of the parties, who was the sole shareholder and director of the 3^rd defendant.  The 3^rd defendant had an office and bank accounts in Hong Kong.  Arrangements had been made to sell a majority interest in the business and a substantial payment was due to be received in the 3^rd defendant’s bank account in Hong Kong at the time the freezing order was sought.  The order was made against each of the defendants in relation to assets in the sum of SGD 16,075,880 or its equivalent.  It also prohibited, amongst other things, the 2^nd defendant from disposing of or dealing with or diminishing the value of the shares held in her name in the 3^rd defendant.

3.  On 18 March 2014, at an inter partes hearing, the plaintiffs made application for an additional injunctive order which was opposed by the defendants.[4]

4.  Insofar as is relevant the plaintiffs sought the following order:

“1. The 2^nd Defendant, whether acting by herself, her servants, agents, employees, or otherwise howsoever, be restrained from acting contrary to the instructions of and/or in a manner adverse to the interests of the 1^st to 3^rd Plaintiffs relating to their rightful shareholdings in the 3^rd Defendant as stated in the letter dated 29^th January 2014 signed by the 2^nd Defendant and addressed to L Capital KDT Ltd.

2. The Plaintiffs do have leave to enforce the Injunction Order made by the Honourable Mr Justice Zervos dated 29^th January 2014 outside Hong Kong and/or seek an Order of a similar nature including Orders conferring a charge or other security against the Defendants and/or the Defendants’ assets.

3. Further or alternatively, the Plaintiffs do have leave to seek to apply for a stop notice outside Hong Kong over their rightful shareholdings in the 3^rd Defendant.”

5.  In the meantime, the 2^nd defendant signed an undertaking to the court dated 18 March 2014 which was filed on 21 March 2014. It stated that the 2^nd defendant would not do the following until the determination of the plaintiffs’ application:

“1. Without the written consent of the Plaintiffs or order of this Honourable Court, cause anything to be done by the 3rd Defendant that would dispose of, dealt with, or diminish the value of the shares in Kudeta Limited (a company incorporated in the British Virgin Island with Company Registration Number 1540692) (“Kudeta BVI”) held in the name of the 3rd Defendant; nor

2. Without 7 days’ written notice to the Plaintiffs’ solicitors, cause the 3rd Defendant to issue any notices or exercise any rights under the Amended and Restated Shareholders’ Agreement dated 31 December 2014, between Kudeta BVI, the 3rd Defendant, and L Capital KDT Limited.”

6.  I decided not to grant the injunctive order sought by the plaintiffs given the matters before me, including the undertaking from the 2^nd defendant.  However, I gave the plaintiffs liberty to apply for any further injunctive relief if the circumstances warranted it. 

7.  In addition, the plaintiffs made application for an order for final judgment which was fixed for hearing on 26 March 2014.[5]  The defendants had also made application to discharge the freezing injunction order I made on 29 January 2014.  The applications were consolidated and fixed to be heard on 30 April 2014 with 2 May 2014 reserved.[6] I made consequential orders for the filing and serving of affidavits by the parties. 

The application

8.  The plaintiffs’ summons for the hearing on 25 March 2014 sought an injunctive order in the following terms:

“1. The 1^st, 2^nd and 3^rd Defendants, whether acting by themselves, their servants, agents, employees, (including but not limited to Casey Au) or otherwise howsoever, be restrained from:

(a) Doing, or causing anything to be done by the Defendants or any of them that would dispose of, deal with, or diminish, the value of the shares in the 3^rd Defendant, or the shares in Kudeta Limited (a company incorporated in the British Virgin Islands with Company Registration Number 1540692) (“Kudeta BVI”), held in the names of the 2^nd and 3^rd Defendants respectively, without the written consent of the Plaintiffs or an Order of this Honourable Court;

(b) Without 7 days’ written notice to the Plaintiffs’ solicitors, causing the 3^rd Defendant to issue any notices or exercise any rights under the Amended and Restated Shareholders’ Agreement (the “Shareholders’ Agreement”) and/or the Amended and Restated Convertible Loan Agreement (the “ARCLA”) both dated 31 December 2013, between inter alia Kudeta BVI, the 3^rd Defendant and L Capital KDT Limited (“L Capital”) including calling for a board or shareholders’ meeting of Kudeta BVI, or the 3^rd Defendant, other than for the purposes of complying with paragraph 2 of the Plaintiffs’ Summons dated 25 March 2014;

(c) Acting in a manner which is unfair and not in accordance with the written intentions and instructions of all the beneficial shareholders of the 3^rd Defendant, including the 1^st to 3^rd Plaintiffs, such shareholders being identified in the representation letter signed by the 2^nd Defendant as the then sole director of Kudeta BVI to L Capital dated 29 January 29014 pursuant to the ARCLA (at Schedule 5), having regard to:

(i) The 2^nd Defendant’s responsibilities as bare trustee, nominee shareholder, and director of and for, all the beneficial shareholders in the 3^rd Defendant; and

(ii) The 1^st Defendant’s responsibilities as a current director of Kudeta BVI in his capacity as a representative of and for, all beneficial shareholders of the 3^rd Defendant and as shadow and/or de facto director of the 3^rd Defendant;

2. The 1^st, 2^nd and 3^rd defendants whether acting by themselves, their servants, agents, employees, or otherwise howsoever do forthwith:

(a) Procure the reinstatement of the 1^st and 3^rd Plaintiffs to the Board of Directors of Kudeta BVI;

(b) Procure the appointment of the 1^st and 3^rd Plaintiffs as the majority beneficial shareholders of the 3^rd Defendant to the Board of Directors of the 3^rd Defendant along with a representative of the 1^st Defendant who shall replace the 2^nd Defendant; and

(c) Withdraw any request by the 3^rd Defendant and its written resolution dated 14 February 2014 to Kudeta BVI, to appoint the 1^st Defendant and Balaji Singh Teeka as directors of Kudeta BVI in place of the 1^st and 3^rd Plaintiffs.

3. The 1^st, 2^nd and 3^rd Defendants, whether acting by themselves, their servants, agents, employees, (including but not limited to Casey Au) or otherwise howsoever, be restrained from doing any act which causes, procures or induces, or is intended to cause, procure or induce L Capital to act in breach of the Shareholders’ Agreement and/or the ARCLA, or to interfere with the performance by the Plaintiffs and L Capital of the Shareholders’ Agreement and/or ARCLA relating to the 1^st and 3^rd Plaintiffs’ contractual rights as majority beneficial shareholders of the 3^rd Defendant to be appointed and to act as directors of Kudeta BVI.”

9.  The plaintiffs proceeded on with paragraphs 1 and 3 and put over their application for paragraph 2 until the substantive argument.  It is important to note that the order in relation to paragraphs 1 and 3 was sought as an interim measure until the substantive argument of the plaintiffs’ summons or further order.  I should also emphasise that I made the order on this basis and on the material before me.[7]  The plaintiffs had also amended the writ of summons on 25 March 2014 by including the tort of interference with contract.[8] The amendment provided a claim for an injunction or damages for inducing a breach of contract or interfering with the performance of contract against the defendants. The application was supported by the 5^th affidavit of the 2^nd plaintiff.

The plaintiffs’ claim

10.  Kudeta Ltd (Kudeta BVI) is a company incorporated on 20 July 2009 in the British Virgin Islands. Kudeta BVI is an investment holding company and one of its subsidiaries is Ku De Ta SG Pte Ltd (Kudeta SG), a company incorporated in Singapore.  Kudeta SG operates a successful restaurant, bar and club business under the trade name “KU DE TA” at the Marina Bay Sands complex in Singapore.  Kudeta BVI also operates other similar businesses in other countries.  Prior to 30 January 2014, the registered shareholders of Kudeta BVI were Essence Investments Ltd (Essence) as to a 27.5% stake and Retribution Ltd (the 3^rd defendant) as to a 72.5% stake.  This changed on 30 January 2014, when L Capital KDT Ltd (L Capital) acquired a 51% stake in Kudeta BVI.  The remaining 49% stake was held by the 3^rd defendant.  

11.  The 3^rd defendant is a company incorporated in the British Virgin Islands and appears to operate out of Hong Kong.  The 2^nd defendant is the sole director and registered shareholder of the 3^rd defendant, and the sole signatory of its bank accounts.  It is claimed that she holds the 1000 issued shares in the 3^rd defendant on trust for various persons including the 1^st, 2^nd and 3^rd plaintiffs and the 1^st defendant.  It is alleged by the plaintiffs that she is accustomed to act on the directions and instructions of the 1^st defendant in relation to the affairs of the 3^rd defendant and Kudeta BVI.

12.  The plaintiffs claim that on 20 July 2009 a joint venture was concluded between Kudeta BVI, the 4^th plaintiff and the 3^rd defendant. It was agreed that Kudeta BVI would be the investment holding company of Kudeta SG which would operate and manage the Kudeta business in Singapore.  It was also agreed that the authorized share capital of 10,000 shares would be distribution to the 4^th plaintiff as to 25.5%, the 3^rd defendant as to 25.5%, and the remaining 49% would be allotted to third party investors. This was amended, and in July 2010, the shares were distributed to Essence Investments Ltd as to 27.5%, the 4^th plaintiff (the corporate vehicle of the 1^st and 2^nd plaintiffs) as to 36.25% and the 3^rd defendant (the corporate vehicle of the 1^st defendant) as to 36.25%.

13.  The plaintiffs claim that in September 2010, it was orally agreed that the profits and dividends payable on the issued shares in Kudeta BVI would be distributed on the following proportions: Essence as to 27.5%; the 4^th plaintiff as to 25%; and the 3^rd defendant as to 47.5%.  It is also claimed that the 1^st defendant breached the terms of the amended joint venture agreement in that he caused the 2^nd defendant not to allot 36.25% shareholding in Kudeta BVI to the 4^th plaintiff, which was allotted to the 3^rd defendant instead.  This resulted in Essence with 27.5% and the 3^rd defendant with 72.5%.

14.  It is claimed by the plaintiffs that when this was discovered in November or December 2010, the 1^st defendant assured the 1^st and 2^nd plaintiffs that he would account for the dividends payable as previously agreed.  However, the plaintiffs claimed, that the 1^st defendant through the 2^nd defendant did not pay the dividends to which the 1^st, 2^nd and 4^th plaintiffs were entitled and later stopped payment of dividends to the 4^th plaintiff in the third quarter of 2012.  The underpayment of dividends was discovered by the plaintiffs in the latter part of 2013.

15.  On 30 January 2013, a declaration of bare trust was executed by the 2^nd defendant as trustee for the 1^st plaintiff, the 3^rd plaintiff and the 1^st defendant in relation to the 3^rd defendant. Its current status is a matter of contention between the parties.  The plaintiffs claim that each of the 1^st plaintiff, the 3^rd plaintiff and the 1^st defendant held one third of the shares in the 3^rd defendant and in turn each held 24.17% interest in Kudeta BVI, being one third of the 3^rd defendant’s 72.5% in Kudeta BVI. 

16.  The trust deed states that the 2^nd defendant is the Nominee and the 1^st plaintiff, the 3^rd plaintiff and the 1^st defendant are the Beneficial Owners of the 3^rd defendant.  It records that the Nominee is the registered owner of 1000 shares in the 3^rd defendant.  It states that:

“The Nominee is entering into the deed at the request of the Beneficial Owners to confirm the terms on which the Nominee holds and has always since 30 January 2013 held the shares and on which she agreed to act as Nominee.”

17.  The operative provisions 1 and 2 read:

“1. The Nominee hereby declares that:

1.1 the Nominee holds the Shares and all dividends and interest accrued or to accrue on the Shares or any of them on trust in equal shares for the Beneficial Owners;

1.2 the Nominee agrees to transfer, pay and deal with the Shares and the dividends and interest payable in respect of the Shares in whatever manner the Beneficial Owners may from time to time direct; and

1.3 the Nominee has no beneficial interest in, or any claim, right or lien in respect of, the Shares other than as arising pursuant to this Deed.

2. The Nominee:

2.1 will vote at all meetings of shareholders or otherwise which as registered owner of the Shares the Nominee may attend in whatever manner the Beneficial Owners shall have previously requested in writing and in default of and subject to that direction (if any) at the discretion of the Nominee; and

2.2 will, if so required by the Beneficial Owners, execute all proxies or other documents that shall be necessary or proper to enable the Beneficial Owners to vote at any of those meetings in place of the Nominee.”

18.  I am told that there is no formal written revocation of the trust deed and while there may be an issue as to shareholding of the Beneficial Owners held by the Nominee, one thing that is for certain is that the Nominee, the 2^nd defendant, is to act on the instructions and in the interest of all the beneficial owners.

19.  The plaintiffs claim that in April and August 2013, the 1^st defendant sold portions of his interest in Kudeta BVI to Balaji Singh Teeka, whose interest is held by Yew Kuan Cheong.

20.  As already mentioned, L Capital acquired a 51% stake in Kudeta BVI which included purchasing all of Essence’s shares (27.5% of the shares in Kudeta BVI) and 12.6% of the 3^rd defendant’s shares in Kudeta BVI.  To this end, various agreements were entered into for the acquisition by L Capital of an interest in the business.  There is an agreement entitled Amended and Restated Convertible Loan Agreement.[9]  It is dated 31 December 2013 and includes the 1^st and 3^rd plaintiffs, the 1^st and 3^rd defendants, Kudeta BVI and L Capital.  It is signed by the various parties including, the 1^st defendant.  Schedule 5 to the agreement sets out the form for the Confirmation of Interest in Kudeta BVI.  In the Schedule 5 document, the following is recorded:

“[Note: the stated percentage in the Confirmation of Interest for Justin Todd and Chris must be in the range of 10% to 12.5%; the stated percentage in the Confirmation of Interest for Harry, Karl and Yew Kuan Cheong must be equal to or greater than 25%, it being understood by the Parties as of the date of this Agreement that the indicative percentages contemplated are as follows: Arthur Chondros – 2.5%; Justin Todd and Chris Au – no more than 12.5%; Jason Cohen – 5 to 6 %; and Harry/Karl/Yew Kuan Cheong – 29%]”

21.  The Confirmation of Interest to L Capital from Kudeta BVI, signed by the 2^nd defendant as a director and dated 29 January 2014, set out the interests to be held by the named individuals in Kudeta BVI through the 49% holding of the 3^rd defendant. It stated that:

“We hereby represent and warrant to you that the following individuals will hold interests in the KDTL Shares through Retribution immediately upon Conversion and the performance by all Parties of their obligations in Clause 5 of the Agreement.”

22.  And it concluded:

“We acknowledge that you are proceeding with Conversion on the basis of the above representation and warranty being true and accurate as of the Conversion Date.”

23.  It set out the interests to be held by the individuals as follows: Arthur Chondros as to 2%, Justin Todd and Chris (the 1^st defendant) as to 10.1%, Jason Cohen (the 2^nd plaintiff) as to 5.7%, and Harry (the 3^rd plaintiff), Karl (the 1^st plaintiff) and Yew Kuan Cheong as to 31.2%.[10]  As the 3^rd defendant held a 49% stake in Kudeta BVI this corresponded to the individuals holding an interest in the 3^rd defendant as follows:   Arthur Chondros as to 4.09%, Justin Todd and Chris (the 1^st defendant) as to 20.68%, Jason Cohen (the 2^nd plaintiff) as to 11.63%, and Harry (the 3^rd plaintiff), Karl (the 1^st plaintiff) and Yew Kuan Cheong as to 63.6%.

24.  There is also an agreement entitled Amended and Restated Shareholders’ Agreement dated 31 December 2013 entered into by L Capital, the 3^rd defendant, Kudeta BVI and persons listed in Schedule 1.  It provides that:

“The Parties have entered into an amended and restated convertible loan agreement (the “CLA”) dated 31 December 2013 in relation to a loan for the sum of $10 million advanced from LCap by way of interest-bearing convertible loans (the “Loans”) to Ku De Ta SG Pte. Ltd. Under the terms and conditions of the CLA, LCap has the right to convent the Primary Tranche (as defined below) into Shares. Pursuant to the terms and conditions of the CLA, LCap will become a Shareholder upon the conversion of the Loans.”

25.  It is claimed by the plaintiffs that as at 30 January 2014 and in accordance with the agreements with L Capital, the 2^nd defendant held the shares in the 3^rd defendant on trust for the 1^st plaintiff, 2^nd plaintiff, 3^rd plaintiff, the 1^st defendant and others in the proportions as stated and that the 2^nd defendant has, in breach of the trust, not acted in the best interests of the beneficiaries, including the 1^st, 2^nd and 3^rd plaintiffs.  A list of breaches by the 2^nd defendant is set out in the statement of claim.

The defendants’ case

26.  As yet a defence and counterclaim have not been filed with the court.  The 1^st defendant has filed three affirmations, with the last one filed on 25 March 2014.  The latest affirmation complained of the conduct of the 3^rd plaintiff in relation to the Kudeta business which I will discuss later in more detail.  I have received submissions from the defendants in which they have delineated a response to the plaintiffs’ claim and an outline of their case which I have taken into account.  I am told that it will be pleaded by the defendants that the plaintiffs are not the majority beneficial owners of the 3^rd defendant. It is claimed that the Bare Trust Deed was created as part of a prospective transaction with L Capital which was intended to be completed in January 2013 but did not take place. Whilst this transaction was being negotiated, terms were being agreed whereby the 1^st defendant would “cash out” his interest in the business in consideration of payment of monies to be received from L Capital.  The Bare Trust Deed was created, it is claimed by the defendants, to demonstrate to L Capital the identity of the shareholders after completion of the intended transaction with L Capital by which time the 1^st defendant would have “cashed out”. It is claimed it did not show the position before the intended completion of the L Capital transaction which did not eventually take place. I note that under the Bare Trust Deed, the 1^st defendant was the beneficial owner of a third of the shares and this was after he had “cashed out”.

27.  It is further claimed by the defendants, that subsequently in December 2013 new terms were negotiated with L Capital and the existing interests in Kudeta BVI agreed terms on which the 1^st defendant could “cash out”. It is claimed that the Confirmation of Interest was created to demonstrate to L Capital the identity of the beneficial interests after completion of the L Capital transaction.

28.  It was submitted by Mr Sussex for the defendants in written submissions:

“The Defence and Counterclaim will plead that by an agreement concluded on or about 26^th December 2014, made partly orally and partly in writing, or alternatively made orally and partly evidenced in writing, it was agreed among the then beneficial interests in Kudeta BVI:

(a) That upon the sale to L Capital of a 40.1% beneficial interest in Kudeta BVI (which was what was being negotiated with L Capital) there would be an adjustment of D1’s interest in D3 to enable D1 to realise cash for shares in D3 representing a 35.5% beneficial interest in Kudeta BVI.

(b) That upon payment by L Capital for the 40.1% beneficial interest in Kudeta BVI, D1 would receive payment of SGD 33,732,539.50 for the shares in D3 representing a 35.5% beneficial interest in Kudeta BVI.

(c) That payment to D1 would be effected in this way. D1 would be paid the full amount of SGD 11,984,933.50 paid to D3 by L Capital for the purchase of 643 shares in Kudeta BVI. D1 would also be paid SGD 21,747,606 out of the SGD26,115,755 paid by L Capital for the purchase of shares in the name of Essence.

(d) That once D1 received payment for the shares in D3 representing a 35.5% beneficial interest in Kudeta BVI he would hand over, or alternatively procure the handover of, control of D3, and the other beneficial interests would become the majority owners of D3.”

29.  Mr Sussex makes the point that from the evidence nothing is relied upon by the plaintiffs that happened after the hearing of 18 March 2014 when the parties were last before me in relation to a similar application.  He submits that the plaintiffs do not rely on any new matter which would represent a breach of the undertaking before the court or the injunction of 29 January 2014.  The plaintiffs submit that the matters now raised have recently come to light and together with previous matters justify the urgency of the application.  In any event, I need to consider the merits of the application and the material that support it.  The significance of matters may become more pronounced or clearer when new matters come to light or when further considered alongside other matters.  There has been a considerable amount of activity by the parties in this dispute to position themselves favourably against the other, and it is clear to me it is causing or likely to cause harm to the interests of the Kudeta business. 

30.  Mr Sussex submits that the parties are embroiled in a huge dispute and it will be clear that the version of events for which the plaintiffs contend is very far from the truth.  He submitted that the defence, when it is filed will show that immediately prior to the L Capital transaction, the 1^st defendant, to the knowledge of the plaintiffs, held 45.5% of Kudeta BVI and that the plaintiffs held various other percentages.  He elaborated that the 1^st defendant had 35.5% because 10% had been given to someone else earlier.  He explained that 35.5% was to be sold to the plaintiffs and that the Confirmation of Interest reflected the status of the parties after this sale was effected.  At this stage, on the material before me, the Conversion of Interest signed by the 2^nd defendant represented and warranted that the “individuals will hold interests in the KDTL Shares through Retribution immediately upon Conversion and the performance by all Parties of their obligations in Clause 5 of the Agreement.”  It set out that the 1^st defendant together with Justin Todd would hold 10.1%, the 2^nd plaintiff would hold 5.7% and the 1^st and 2^nd plaintiffs together with Yew Kuan Cheong 31.2% of the 49% that the 3^rd defendant held in Kudeta BVI.

31.  The Conversion of Interest concluded that L Capital was proceeding with the conversion on the basis of the above representation and warranty being true and accurate as of the Conversion Date.[11]  Mr Sussex submits that this speaks of a future time.  This was the conversion of loans into shares as at the date specified in the agreement.  The agreement stated that the conversion date means the date on which the Borrower issues the Conversion Shares pursuant to a Conversion Notice.  This was done on 31 January 2014.  In other words, it has all taken place.  The 1^st defendant, as required under the agreement, has also resigned as the Chief Executive Officer (CEO) on 30 January 2014, by giving 3 months notice.  The 1^st defendant has filed 3 affirmations.[12] The last affirmation was dated 25 March 2014 in which he confirmed that he resigned as CEO of Kudeta SG by way of letter dated 30 January 2014 with 3 months notice as required under the L Capital transaction documents and his employment contract.

32.  Mr Sussex submits that the defendants’ case is that there was an agreement between the parties on 26 December 2013 to purchase the 1^st defendant’s shareholding of 35.5%.  When I asked Mr Sussex if he could produce an agreement between the parties to this effect, he took me to a letter of the solicitors of the 1^st defendant dated 25 February 2014. [13] It stated that their clients’ position was that the Confirmation of Interest dated 29 January 2014 represented the parties’ agreement as to their respective holdings in Kudeta BVI after completion of the L Capital transaction (including dilution) on 30 January 2014, as well as after completion of the agreement between the parties that their clients be paid out for a 35.5% share in Kudeta BVI from the L Capital completion monies.  It was noted that such agreement was recorded in the email from the 3^rd plaintiff dated 26 December 2013.  It further stated that their clients had made formal demand for payment for the 35.5% share as agreed, and the plaintiffs were currently in breach of such agreement by (a) refusing to transfer SGD 21,745,755 of the SGD 26,115,755 paid to Essence Investments Limited, and (b) freezing the SGD 11,984,933.5 paid to the 3^rd Defendant and claiming, incorrectly, to be entitled to a 66.66% share of it.  

33.  The email dated 26 December 2013 is from the 3^rd plaintiff to the 1^st defendant and was copied to the 1^st plaintiff, the 2^nd plaintiff, Yew Kuan Cheong and Justin Todd and had as its subject Confirmation of Agreement.[14]  It reads:

“Further to our recent telephone conversation, I wish to confirm that the shareholders of Rocky Cape and Essence agree to your request to be able to cash out 35.5% of your shareholding of KUDETA from the “Secondary” monies received from the L Capital transaction.

As agreed and discussed, the only request is that you assist in the efficient handover of the day-to-day operations, transfer the shares and directorial control of Retribution, and provide the shareholder’s accounts for KDT Limited (BVI) for 2012 and 2013.”

34.  It is submitted by the plaintiffs that this refers to prospective confirmation that the shareholders of the 4^th plaintiff and Essence agree to the 1^st defendant’s request to cash out “35.5% of your shareholding from the L Capital transaction” and this was that he had a 35.5% stake in the entirety of the issued shares of Kudeta BVI.[15]

35.  On 30 January 2014, the 1^st defendant sent an email to the 1^st plaintiff which read:[16]

“If there is still any doubt to what was agreed kindly view below.

Once funds are release then same day all shares and directorial control will be transfer to your stakes. Shareholder accounts was provided. I have no issue doing proper handover to you.

I propose have essence funds release to roydk trust account then can be distributed from there.”

Letter from majority shareholder

36.  As a result of this dispute, L Capital directed through its solicitors in a letter dated 10 February 2014 that neither the 1^st defendant nor the 2^nd plaintiff was appropriate to act as an interim CEO of Kudeta SG, and that the 1^st plaintiff, the 3^rd plaintiff or the 1^st defendant should not have an executive role in any subsidiary companies.  On 14 February 2014, the 1^st and 3^rd plaintiffs signed a resolution where they resigned as directors.  The relevant parts of the letter stated as follows:

“2. It has come to our client’s attention that the beneficial owners/shareholders of Retribution Ltd, comprising all of you and others, are in a dispute with each other and have been making certain allegations against each other.

3. The dispute does not concern our client, and our client does not wish to be involved or embroiled in the dispute any way. Any purported attempt to put our client or its representatives on notice of matters arising out of related to the dispute is of no effect.

4. TAKE NOTICE, however, that our client shall not hesitate to take the appropriate action if, amongst other things:

(a) any action taken by Retribution Ltd’s beneficial owners/shareholders would injure or harm our client’s interests or the interests of the Kudeta group; or

(b) information confidential or proprietary to the Kudeta group is being or would be compromised; or

(c) Retribution Ltd or any of the other signatories fail to comply strictly with its responsibilities and obligations in the Shareholders’ Agreement entered into by itself, our client, L Capital KDT Ltd and various individuals. You should take note that there are confidentiality provisions and other provision in the Shareholders’ Agreement prohibiting no less than full compliance on this aspect.

5. In the case of Mr Chris Au, as you have resigned as the Chief Executive Officer of Ku De Ta SG Pte Ltd with effect from 30 January 2014 and in the light of the dispute between Mr Chris Au and Mr Harry Apostolides, our client consider that neither of the aforesaid persons would be appropriate to act as the Interim Chief Executive Officer (or equivalent) of Ku De Ta SG Pte Ltd. Our client has decided to direct the current Head of Operations for the Kudeta group in Singapore and Thailand to report directly to the board of directors of Kudeta Limited as an interim measure until a new Chief Executive Officer is appointed. Acting in the best interests of the Kudeta group, our client has also decided that none of Mr Chris Au, Mr Harry Apostolides and Mr Karl Patel shall have any executive role in Kudeta Limited’s subsidiaries.

6. Our client also reminds Mr Harry Apostolides and Mr Karl Patel that in their capacity as directors of Kudeta Limited, they owe directors’ duties and fiduciary duties to our client, which duties they should strictly observe at all times.

7. Finally, our client requires Mr Chris Au to sign the “change of instructing person” letter which we have emailed to him on 7 February 2014 without delay and to send a scanned version of the executed letter to us by close of business hours today.

8. Our client’s rights are expressly reserved. ”

The 1^st defendant’s interests

37.  My attention has been directed to evidence given by the 1^st defendant in the Singapore High Court.  It was referred to by the 2^nd plaintiff in his 5^th affidavit dated 25 March 2014.  It had also been referred to quite extensively by the 1^st plaintiff in his 1^st affidavit dated 29 January 2014 and the transcript had been produced by Mr Barry Paul Hoy in his 2^nd affidavit dated 29 January 2014. The following are some extracts from the relevant passage of transcript.

“12:28	Q.	So Retribution is your company; correct?
	A.	No. Not anymore.
	Q.	You don’t hold any stake in Retribution anymore?
	A.	No, I don’t.”
…
“15:12	Q.	So are you telling the court that you don’t have any interest in Retribution now?
	A.	I don’t have any interest in Retribution. It was a company I set up to hold and when – –
15:12	Q.	When did you cease having any interest in Retribution?
	A.	I think around January of 2010. I basically gave the company to Karl to use.
15:13	Q.	So Mr Patel owned Rocky Cape, or so you believe so, and now he also owned Retribution Limited; is that right?
	A.	I don’t know– – well, Elsa Ho owns Retribution.
	Q.	Else Ho is just a nominee; correct?
	A.	Yes, but I don’t know– –
15:13	Q.	And Elsa Ho is holding on trust for someone?
	A.	Yes, and I don’t know who that person is. Because Karl handled the fund-raising. So he brought in the new investors and – –
	Q.	Mr Au, you were the 100 per cent beneficial owner of Retribution. Elsa Ho is just a nominee. Who did you transfer your 100 per cent beneficial ownership of Retribution ownership to?
15:14	A.	I allow Karl Patel to use the Retribution corporate vehicle. So I didn’t transfer any specific person. I basically just say, “Elsa, Karl will take over this company”, and then that was that.
	Q.	So Karl Patel became the 100 per cent beneficial owner of Retribution?
15:14	A.	I don’t know. But – –
	COURT:	Wait a minute. As the 100 per cent owner of Retribution, what did you have? Did you have a registered share or did you have a bearer share, what did you have?
15:14	A.	I believe it was registered share and it was registered to Elsa Ho when she incorporated it for me.
	COURT:	So she was a shareholder of Retribution?
	A.	That’s correct.
15:14	COURT:	And she was holding it for you?
	A.	At that point in time, until January of 2010.
	COURT:	So you told her, what, don’t hold it for me, hold it for Karl?
	A.	I basically said, “I don’t have any more use for
15:14		this vehicle. Karl may have use for it. He can use it.”
	COURT:	So, “take instructions from Karl”, basically?
	A.	Yes. I walked away from that vehicle.
15:15	COURT:	Did you tell her to deal with Karl in relation to that vehicle?
	A.	Yes, I did.
	MR ANG:	And all this was happening in writing; correct?
	A.	No. I called her.
15:15	Q.	Ms Ho was holding Retribution on trust for you and there was nothing in writing to show that now she’s holding it on trust for Karl Patel?
	A.	You know, in these days – –
	Q.	Can you answer the question?
15:15	A.	What’s the question?
	Q.	There’s nothing in writing to show that Ms Ho is now holding Retribution on trust for Karl Patel?
	A.	Right now I don’t know who she’s holding for.
15:15	Q.	At the time you relinquished your interest in Retribution to Karl Patel, my question is: there must have been some documentation between you and Elsa Ho and/or you and Karl Patel to show that you were relinquishing your interest in Retribution to Karl Patel; correct?
15:16	A.	I think I did it through an SMS text saying, “take instructions from Karl for Retribution.”
	Q.	So why is Rocky Cape no longer a shareholder of Ku De Ta Limited?
15:16	A.	Well, simply because that was a vehicle Karl Patel was supposed to use. For some reason he didn’t use that and he used Retribution.
	Q.	So what has happened to Rocky Cape?
	A.	I have no idea.
	Q.	So presently the owner of Retribution, is that Karl Patel?
	A.	I don’t know the answer to that.
	Q.	You don’t know who the real owners of Retribution are?
15:16	A.	No, I don’t. I actually asked but they didn’t tell me. I asked Karl. He didn’t tell me. I asked Elsa. She didn’t tell me.”
…
	“COURT:	Mr Au, so you are now only an employee of Ku De Ta Singapore?
	A.	That’s correct.
15:51	COURT:	You’ve got no ownership interest whatsoever?
	A.	No.
	COURT:	And you don’t know who the owners are?
	A.	I do not, your Honour.
	COURT:	How do you deal with them?
15:51	A.	Well, I deal with Elsa.
	COURT:	You deal with Elsa?
	A.	Actually, I don’t really deal with them. I’m pretty self-sufficient. We just go about our way running the business.
15:51	COURT:	Nobody tells you what to do?
	A.	No, nobody tells me what to do.
	COURT:	If there is money to be distributed, you send it to Elsa?
	A.	I send it to Ku De Ta Limited.”[17]

38.  I understand that the 1^st defendant gave evidence before the Singapore High Court on 14 and 15 August 2012, some five months prior to the execution of the declaration of the trust deed dated 30 January 2013.  I will await the response from the 1^st defendant about his evidence before the Singapore High Court.

Legal principles

39.  It is common ground that the fundamental purpose of an injunction in the context of the underlying cause of action is to prevent injustice.  This has been given legislative recognition by section 21L of the High Court Ordinance, Cap 4 where the court may grant a final or interlocutory injunction when it appears “to be just or convenient to do so”.  The risk of injustice is an important measure as to whether or not an injunction should be granted.  This poses a dilemma for the courts as injustice may be visited to either the plaintiff or the defendant depending on the ultimate outcome of the trial.  How the courts should approach this dilemma was addressed by Hoffmann J (as he then was) in Films Rover International Ltd and Ors v Cannon Film Sales Ltd [1987] 1 WLR 670:

“The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the ‘wrong’ decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.”[18]

40.  The key principles concerning the grant of an interlocutory injunction are contained in the well known authority of American Cyanamid Co v Ethicon Ltd [1975] AC 396.  The court must be satisfied that there is a serious question to be tried and consider whether the balance of convenience lies in favour of granting or refusing the injunction.[19] Once satisfied that there is a serious question to be tried, the court will go on to consider whether the damages awarded at trial or payable under an undertaking are adequate remedies, and if it is decided that they would not be adequate, the court will next assess where the balance of convenience lies.[20]  In my view, the process involved is more aptly described as the “balance of the risk of doing an injustice”.[21]

41.  As a mandatory injunction requires a defendant to do a specified act, as compared to a prohibitory injunction which refrains a defendant from doing a specified act, a higher standard of proof is required from a plaintiff so that the court feels a high degree of assurance that at trial it will be shown that the injunction was rightly granted.  This is generally the court’s approach.  However, a mandatory injunction may still be granted, notwithstanding a court is in doubt as to the adequacy of the respective remedies in damages.  This occurs when the balance of convenience is tilted so much in the plaintiff’s favour that justice requires the grant of an injunction.[22] This arises, as explained by Hoffmann J in Films Rover International Ltd:

“If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel a “high degree of assurance” about the plaintiff’s chances of establishing his right, there cannot be any rational basis for withholding the injunction.”[23]

42.  The approach a court should take when considering a mandatory interlocutory injunction has been usefully set out by Ma J (as the Chief Justice then was) in Music Advance Ltd v The Incorporated Owners of Argyle Centre Phase I [2010] 1041 at 1046-1048.  He too emphasised that whilst the general approach employed a higher standard of proof than in the case of a prohibitory interlocutory injunction, there may be exceptions to this general approach as explained by Hoffmann J. He said:[24]

“…

(f) In the case of interlocutory mandatory injunctions, the risk of injustice (being wrong in the sense referred to above) can be quite acute. In Films Rover International Ltd v Cannon Film Sales Ltd, it was put thus by Hoffmann J at p.681B-E:

In Shepherd Homes Ltd v Sandham, Megarry J spelled out some of the reasons why mandatory injunctions generally carry a higher risk of injustice if granted at the interlocutory stage: they usually go further than the preservation of the status quo by requiring a party to take some new positive step or undo what he has done in the past; an order requiring a party to take positive steps usually causes more waste of time and money if it turns out to have been wrongly granted than an order which merely causes delay by restraining him from doing something which it appears at the trial he was entitled to do; a mandatory order usually gives a party the whole of the relief which he claims in the writ and makes it unlikely that there will be a trial. One could add other reasons, such as that mandatory injunctions (whether interlocutory or final) are often difficult to formulate with sufficient precision to be enforceable. In addition to all these practical considerations, there is also what might be loosely called a “due process” question. An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring him temporarily to refrain from action. The court is therefore more reluctant to make such an order against a party who has not had the protection of a full hearing at trial.

(g) This passage in my view explains just why it is that generally a court will have to feel high degree of assurance that at the trial of an action it will be shown that the interlocutory injunction was rightly granted before an interlocutory mandatory injunction will be given; all this being an exercise in assessing the strength of the plaintiffs’ case: see sub-para. (a) above. However, I emphasise that this is only generally the court’s approach. Where it is shown, as an exception to this general approach, that the case is one in which the withholding of on interlocutory mandatory injunction “would in fact carry a greater risk of injustice than granting it even though the court does not feel the high degree of assurance” as aforesaid, it would be right to grant an interlocutory mandatory injunction, see Films Rover International Ltd v Cannon Film Sales Ltd, p.681A-B.

(h) This of course brings into focus the balance of convenience. Thus, if a plaintiff in seeking an interlocutory mandatory injunction cannot demonstrate more than a serious question to be tried, it will have to show that the balance of convenience tilts so much in its favour that justice requires such an injunction to be granted, even taking into account those aspects of an interlocutory mandatory injunction expressed by Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd.

(i) At no stage, however, in the consideration of the matters does the court lose sight of the practical realities of the situation to which the injunction will apply: see NWL Ltd v Woods [1979] 1 WLR 1294, 1306C per Lord Diplock.”

43.  The effect of an interlocutory injunction is that a defendant is ordered to do or not to do something, and as pointed out by Lord Hoffmann in National Commercial Bank Jamaica v Olint Corpn [2009] 1 WLR 1405, such restrictions on the defendant’s freedom of action will have consequence for him and for others which a court has to take into account.  The ultimate objective of such an injunction is to improve the chances of the court being able to do justice after a determination of the merits of the trial.  As Lord Hoffmann correctly pointed out the notion of preserving the status quo is easier said than done.  I think in reality the courts try to ensure a state of affairs in relation to the parties is preserved as much as possible to ensure that it will be able to do justice to the case once it is decided on its merits.

44.  In deciding at the interlocutory stage whether granting or withholding an injunction is more likely to produce a just result, the basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other.  That applies whether the injunction is prohibitory or mandatory.  This was explained by Lord Hoffmann in National Commercial Bank Jamaica who stressed the need to look at the practical consequences of the injunction in terms of the case of the parties, the availability and effectiveness of other remedies, and the likely prejudice it will have on one party or the other. He said:

“17 In practice, however, it is often hard to tell whether either damages or the cross-undertaking will be an adequate remedy and the court has to engage in trying to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out that the injunction should not have been granted or withheld, as the case may be. The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other. This is an assessment in which, as Lord Diplock said in the American Cyanamid case [1975] AC396, 408:

“It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them.”

18 Among the matters which the court may take into account are the prejudice which the plaintiff may suffer if no injunction is granted or the defendant may suffer if it is; the likelihood of such prejudice actually occurring; the extent to which it may be compensated by an award of damages or enforcement of the cross-undertaking; the likelihood of either party being able to satisfy such an award; and the likelihood that the injunction will turn out to have been wrong granted or withheld, that is to say, the court’s opinion of the relative strength of the parties’ cases.

19 There is however no reason to suppose that, in stating these principles, Lord Diplock was intending to confine them to injunctions which could be described as prohibitory rather than mandatory. In both cases, the underlying principle is the same, namely, that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other: see Lord Jauncey in R v Secretary of State of Transport, Ex p Factortame Ltd (No. 2) (Case C-213/89) [1991] 1 AC 603, 682-683. What is true is that the features which ordinarily justify describing an injunction as mandatory are often more likely to cause irremediable prejudice than in cases in which a defendant is merely prevented from taking or continuing with some course of action: see Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, 680. But this is no more than a generalisation. What is required in each case is to examine what on the particular facts of the case the consequences of granting or withholding of the injunction is likely to be. If it appears that the injunction is likely to cause irremediable prejudice to the defendant, a court may be reluctant to grant it unless satisfied that the chances that it will turn out to have been wrongly granted are low; that is to say, that the court will feel, as Megarry J said in Shepherd Homes Ltd v Sandham [1971] Ch 340, 351, “a high degree of assurance that at the trial it will appear that the injunction was rightly granted”.

20 For these reasons, arguments over whether the injunction should be classified as prohibitive or mandatory are barren: see Films Rover [1987] 1 WLR 670, 680. What matters is what the practical consequences of the actual injunction are likely to be. …”

Discussion

45.  There is no doubt that there is a serious question to be tried, and given the dispute between the parties, and what is at stake, damages awarded at trial will not provide an adequate remedy to the plaintiffs if they are successful.  At the moment, the parties are embroiled in a bitter dispute and it is clearly having an impact, probably a severe one, on the Kudeta business.  This obviously will affect the interests of the parties in their commercial investment.  There are conflicting accounts as to the interests of the relevant parties have had or have in the third defendant and Kudeta BVI.  At this stage, I am guided by the most recent documentation with L Capital which sets out the agreed interests of the parties through the third defendant. Whichever view you take of the cases submitted by the parties, the fact remains that the 1^st, 2^nd and 3^rd plaintiffs have a substantial interest in the 3^rd defendant and therefore in turn in Kudeta BVI.  I also note that the 1^st defendant will retain an interest in the 3^rd defendant but at a reduced percentage.  It would appear his stake in the business is not as substantial as the collective stake of the plaintiffs.  It is these interests that are at the very heart of this dispute, and why appropriate protective measures should be in place to ensure that those interests are not diminished or devalued in any way, and in order to do justice after determination of the merits of the trial.

46.  Mr Chua Guan-Hock, SC, counsel for the plaintiffs, submits that the 1^st defendant was “on his way out” and the interests of the plaintiffs have to be protected in the meantime.  Mr Sussex makes the point that the 1^st defendant was “on his way out” as the CEO but not in having an interest in the business.  That is true but his interest is to be reduced even though this is the subject of an impasse between the parties.  As I understand the dispute between them, the 1^st defendant has agreed to sell his interest or a substantial part of it to the plaintiffs, and maybe others, but has not been paid, whilst on the other hand, the plaintiffs claim that the 1^st defendant has not properly accounted or paid to them their share of the profits in the Kudeta business.  

47.  The 2^nd plaintiff in his 5^th affidavit complains that the 1^st and 2^nd plaintiffs have been removed as directors from various Kudeta BVI subsidiaries but as Mr Sussex points out they agreed to do so and signed a resolution to that effect dated 14 February 2014.  It seems this arose as a result of this dispute, and to some extent the intervention of the majority shareholder, as evidenced by the solicitors’ letter of 10 February 2014 which requires the disputing parties to refrain from being involved in the Kudeta business in an executive capacity. They have therefore voluntarily removed themselves as directors only to find that they have been replaced by the 1^st defendant and Mr Teeka pursuant to a board resolution signed by the 2^nd defendant as the sole director of the 3^rd defendant.  The 2^nd plaintiff raises a number of matters as a consequence of the change of directorships in the group of companies.[25]

48.  Mr Sussex claims that a lot of what has happened recently is a reaction to what the 3^rd plaintiff did in Singapore. It is claimed that he went to the offices of Kudeta BVI and declared he was the new CEO and changed the locks.  Mr Sussex referred to the emails and the conduct of the parties and it is clear that it has escalated into a bitter dispute.

49.  It is quite apparent from the information before me that the 2^nd defendant acts on the instructions and directions of the 1^st defendant. Whilst she is the sole shareholder and director of the 3^rd defendant, she is so in the capacity as trustee for others, including the 1^st, the 2^nd and the 3^rd plaintiffs, and the 1^st defendant. The 1^st, 2^nd and 3^rd plaintiffs have as much right as the 1^st defendant to have their interests in the third defendant represented and protected.

50.  Mr Sussex submits that the injunction sought by the plaintiffs is a mandatory injunction, and a court would not grant such an injunction unless it feels a “high degree of assurance” that at trial it will appear the injunction was rightly granted. [26]  I have that assurance and it is necessary to examine the terms of the injunctive order to understand why.  Paragraph 1(a) of the injunction seeks to restrain the 1^st defendant in particular from doing anything that would devalue or adversely affect the shareholding in the 3^rd defendant and Kudeta BVI, although it broadly prohibits any dealing of the shares held by the 2^nd and 3^rd defendants respectively without the written consent of the plaintiffs or an order of the court.  I view this as an appropriate measure to preserve the commercial interests involved in order to avoid any diminution of the shares or their value.  There is a tendency for the 1^st defendant from what I have observed to operate through others and that is evidenced by the dealings he has had with the 2^nd defendant and the recent appointment of his brother as a director of Kudeta BVI.  Paragraph 1(b) seeks to give the plaintiffs notice of any action taken under the two agreements with respect to the L Capital transaction.  Given the interest of the plaintiffs in the affairs of the 3^rd defendant and Kudeta BVI, this in my view is both appropriate and reasonable.  Paragraph 1(c) was strongly objected to by Mr Sussex for the defendants on the basis that it constituted a mandatory injunction. It essentially provides that the 2^nd defendant, as a trustee for the beneficial shareholders in the 3^rd defendant, must not act contrary to their interests and that she should fulfil her responsibilities as a trustee, nominee shareholder and director of and for all the beneficial shareholders.  She is being asked to fulfil her duties as a trustee as required by the trust deed that she signed and what would be required of her in any event by law. Mr Sussex regarded the requirement of not acting in accordance with the written intentions and instructions of all the beneficial shareholders of the 3^rd defendant as requiring the 2^nd defendant to do something and this was therefore a mandatory injunctive order.  In my view this was requiring the 2^nd defendant to do no more than what she would be expected to do both under the trust deed and in law, and in any event I feel a “high degree of assurance” that at trial it will appear this aspect of the injunctive order was rightly granted.  Paragraph 2 restrains the defendants from doing anything that would cause any adverse impact or interference on the contractual arrangements with L Capital.  Again, I see this as an appropriate and necessary protective measure to preserve the business interests in dispute and to some extent this is supported by the solicitor’s letter of the controlling shareholder of Kudeta BVI.

Conclusion

51.  I am satisfied overall that this application should be granted and it is the course likely to cause the least irremediable prejudice to the parties.  In my view, it will cause little if any actual prejudice from occurring, and given the practical realities of the situation, the injunction will do justice to the case once it is decided on its merits.  I have considered the merits of the plaintiffs’ claim on the information and material before me and the balance of convenience tilts strongly in favour of granting the injunction, notwithstanding the objections by Mr Sussex as to paragraph 1(c).  As Lord Hoffmann noted in National Commercial Bank Jamaica, the question of whether or not to grant an interlocutory injunction is not a box-ticking exercise.  I have taken into account that this is an internal dispute amongst the shareholders of a business, and have looked to recent documentation which has been executed by the parties, reflecting the interest that those parties are to hold within the 3^rd defendant and Kudeta BVI.  I have also considered the plaintiffs’ claim and the information and material in support of the non-accountability of the profits by the 1^st defendant and the arguments mounted against the claim by the defendants.     

Postscript

52.  At the conclusion of the hearing, Mr Sussex, submitted there were very strong grounds of appeal and sought leave to appeal in relation to paragraph 1(c) of my order and a stay of that order pending appeal on what he argued was essentially a mandatory injunction based on evidence put in ex parte.  He submitted that my decision was plainly wrong.  I refused both the application for leave to appeal and a stay of the order.