J. A. Clyde-Smith, Esq., Commissioner and Jurats Kerley and Crill.
Consolidated Resources Armenia
Global Gold Consolidated Resources Limited
Mr Van Krikorian
Global Gold Corporations
Advocate A. Kistler for the Plaintiff.
Advocate C. J. Swart for the Defendants.
1. The defendants apply to set aside interim injunctions imposed upon them ex parte on 10th March, 2014, on the grounds of material non-disclosure.
2. The plaintiff ("Consolidated Resources") and the third defendant ("Global Gold") entered into a joint venture agreement on 27th April, 2011, to form a new joint venture company to conduct and develop mining and exploration rights in two properties in Armenia. In very broad terms, the parties contributed to the joint venture by Consolidated Resources investing US$5M and Global Gold introducing the mining and exploration rights.
3. Pursuant to the joint venture agreement, the parties incorporated the first defendant (which we will refer to as ("the joint venture company")) in Jersey and entered into a shareholders' agreement on 18th February, 2012, to regulate their interests in that company. It was agreed that Global Gold would own 51% and Consolidated Resources 49% of the equity in the joint venture company, but the powers of the majority shareholder were heavily proscribed. Each party can nominate one director for every 20% of the shares held (in practice, only one director has been nominated by each party so that there are two directors). Both directors have to be present for a meeting of the board to be quorate. Even then, there is a comprehensive list of matters that require the unanimous approval of the directors.
4. In addition, the agreement provides for a schedule of "Fundamental Matters" that require the approval of each nominee director. Under the terms of the shareholders' agreement, there is therefore very little that the joint venture company can do without the approval of the two directors nominated by the parties, but it is not so restricted under its articles of association.
5. The mining and exploration activities are carried on by two Armenian entities owned through a wholly owned holding company incorporated in Delaware.
6. The second defendant, Mr Van Krikorian ("Mr Krikorian") is the chairman and chief executive officer of Global Gold (which has some 1,300 shareholders and whose shares can be traded over the counter) and he was appointed executive chairman of the joint venture company (in addition to being the director nominated by Global Gold). As such he is the chief executive of the joint venture company in managing its operations. The other director, nominated by Consolidated Resources, is Mr Caralapati Premraj.
7. Mr Krikorian asserts that it was Mr Premraj (with another) who was held out to be the beneficial owner of Consolidated Resources, but Mr Joseph Borkowski has made the affirmations in favour of Consolidated Resources and states that he is the sole director. It would appear to be the relationship between Mr Krikorian and Mr Borkowski that has broken down.
8. The history of the joint venture is convoluted, but for the purposes of this judgment, we would refer to the following:-
(i) On 17th January, 2012, Consolidated Resources and the joint venture company entered into a Note Instrument Agreement pursuant to which Consolidated Resources claims to have advanced US$2,197,453 to the joint venture company (quite separate from the US$5M invested at the outset) for which Convertible Loan Notes to the value of US$1.5M have been issued. That agreement gives Consolidated Resources additional contractual rights over the joint venture company inter alia preventing the joint venture company from encumbering its assets.
(ii) In February 2013, it was proposed that the shares of the joint venture company be listed on AIM and each side blames the other for that proposal not coming to fruition.
(iii) In September 2013, heads of terms were agreed with an Australian public company Signature Gold Limited ("Signature"), the intention of which was for Signature to acquire the share capital of the joint venture company in return for issuing new shares in Signature to the joint venture company shareholders. An agreement was entered into on 22nd November, 2013, but that proposal has not come to fruition for which the parties again blame each other. The problem appears to have been the inability of Consolidated Resources and Global Gold to agree on the level of debt due to them respectively by the joint venture company and which it was proposed Signature would take responsibility for.
9. The catalyst for Consolidated Resources seeking interim injunctions was the issuing by Mr Krikorian of a notice of a shareholders' and directors' meeting to take place on 12th February, 2014. That notice was in the following terms:-
"Please take notice that the Annual General Meeting of the Shareholders and the Board of Directors of Global Gold Consolidated Resources Limited (the "Company") will take place on Thursday February 27, 2014 at the Company's offices located at 555 Theodore Fremd Avenue, C-208, Rye, New York at 4:00 pm Eastern Standard (NY) Time. The Board of Directors Meeting will take place immediately following the Shareholders meeting.
The purposes of the Shareholder General Meeting will include:
Fraud issues affecting the Company
The RBSM audit of the Company and issues raised therein
Consideration of completing the Merger and Sale with Signature Gold
Consideration of dissolution of the Company
Any and all other business
The purposes of the Directors Meeting will include:
Fraud issues affecting the Company
Legal action against CREO and Viking Investments
The RBSM audit of the Company and issues raised therein
Consideration of completing the Merger and Sale with Signature Gold
Consideration of dissolution of the Company
Any and all other business
The meetings will be recorded. Shareholders who are entitled to attend and vote are entitled to appoint one or more proxies to attend and vote instead of that Shareholder and that proxy need not be a shareholder."
10. Mr Premraj did not attend that meeting and therefore the directors' meeting could not proceed. Under section 5.12 of the shareholders' agreement, the quorum for a meeting of shareholders is two persons present in person or by proxy together holding more than 50% of the shares. In the absence of a representative therefore of Consolidated Resources, the shareholders' meeting could not proceed, but section 5.12(3) goes on to provide that if a quorum of shareholders is not present, then the meeting may thereafter be adjourned to a second meeting, where the shareholders present will constitute a quorum for the transaction of business set out in the original notice. The shareholders' meeting was therefore adjourned by Mr Krikorian to Friday 7th March, 2014.
11. Consolidated Resources was concerned that if that adjourned meeting proceeded the assets of the joint venture company would be in jeopardy and it applied for the interim injunctions on the day before that meeting, namely 6th March, 2014, (although the interim injunctions were not signed by the Deputy Bailiff until 10th March, 2014).
12. The claims brought by Consolidated Resources under the Order of Justice can be summarised as follows:-
(i) A demand against the joint venture company for payment of US$1,670,033.44c being the amount due under the Convertible Loan Notes either issued or which should have been issued (and if issued, to the extent would by now have matured).
(ii) A demand against Global Gold for the same sum, under the terms of the guarantee entered into by it on 19th February, 2013, in respect of the obligations of the joint venture company under the Convertible Loan Notes.
(iii) Orders under Article 143 of the Companies (Jersey) Law 1991 on the ground that the affairs of the joint venture company are being or have been conducted in a manner which is unfairly prejudicial to Consolidated Resources or in the alternative that the joint venture company be wound up under Article 155. In particular, orders are sought under Article 143:-
(a) That the defendants purchase shares of Consolidated Resources in the joint venture company at a price to be assessed or
(b) Consolidated Resources purchase the shares of Global Gold in the joint venture company at a price to be assessed, or
(c) The defendants to pay damages in a sum to be assessed.
13. We will not set out here the particulars of the grounds upon which Consolidated Resources claim that the affairs of the joint venture company have been conducted in a manner which is unfairly prejudicial.
14. The Order of Justice goes on to state at paragraphs 25 and 26:-
"25. Further and in any event, by letters dated 24 February 2014 the Plaintiff demanded that the First and Second Defendant undertake not to dispose of, encumber, or dissipate the First Defendant's assets. Notwithstanding the Plaintiff's demand the Second Defendant has failed to give the undertaking requested.
26. In all the circumstances, it is reasonable and proper for the Plaintiff to infer from the Second Defendant's conduct that unless restrained by order of the court, the Second Defendant will dispose of, encumber, or dissipate the First Defendant's assets."
15. The application for interim injunctions was supported by an affirmation by Mr Borkowski and the interim injunctions granted by the Deputy Bailiff on 10th March, 2014, were in the following terms:-
"1. Service of this Order of Justice upon the Defendants shall operate as an immediate interim injunction restraining it [the first defendant] from in any way disposing of or encumbering or dealing with or diminishing the value of any of the First Defendant's assets whether they are in or outside of Jersey.
2. Paragraph 1 above applies to all the First Defendant's assets whether or not they are in its own name and whether they are solely or jointly owned. For the purposes of this order the First Defendant's assets include any asset which it has the power, directly or indirectly, to dispose of or deal with as if it were its own. The First Defendant is to be regarded as having such power if a third party holds or controls the asset in accordance with its direct or indirect instructions.
3. Notwithstanding the orders at paragraphs 1 and 2 above, it shall not be a breach of the injunction herein if, in relation to any prospective transactions or arrangements dealing with, encumbering, or disposing of any of the First Defendant's assets in the ordinary and proper course of business, the first Defendant shall notify the Plaintiff's Advocate in writing of the full terms of the prospective transaction, the reason for its intention to enter into such transaction or arrangement, the value of the transaction, and the nature of any consideration to be paid and received by the First defendant, and consent to that transaction or arrangement is given by the Plaintiff, such consent not to be unreasonably withheld."
16. At a short hearing on 2nd April, 2014, the Court was concerned as to the impact of the interim injunctions upon the underlying operations in Armenia and the ability to carry on business as usual and accordingly, it amended paragraph 3 of the interim injunctions to read as follows:-
"Notwithstanding the orders at paragraphs 1 and 2 above, it shall not be a breach of the injunction to enter into any transaction or arrangement dealing with, encumbering or disposing or diminishing the value of any of the First Defendant's assets in the ordinary and proper course of business."
17. The duty of full and frank disclosure is set out conveniently in Goldtron v Most Investments Limited  JLR 424 in the following terms:-
"14 The essential feature of judicial proceedings is that each party has the opportunity of putting his case. Thus the court will not generally hear only one side to a dispute. However, on occasions, this is necessary either because of the urgency of the matter or because the very nature of the relief requested requires that it be done in the absence of the other party (e.g. the obtaining of an injunction freezing assets because it is feared that the other side will remove them). Even then, the other side has the right to bring the matter back before the court at the earliest opportunity for an inter partes hearing. Clearly, there is great scope for injustice if orders are made in the absence of one party. If the court "wrongly" imposes a freezing order on a party's assets because it has been misled by the applicant, serious damage may be caused without that party having had the opportunity to put its case to the court. Accordingly it is fundamental and of the highest importance that a party applying for ex parte relief must be completely frank with the court and must put before the court any matters which militate against the making of the order in question.
15 In our judgment, a short and accurate summary of the duty lying upon the party applying for ex parte relief is to be found in the decision of Bingham, J in Siporex Trade S.A v Comdel Commodities Ltd (4), ( 2 Lloyd's Rep. at 437):
"The scope of the duty of disclosure of a party applying ex parte for injunctive relief is, in broad terms, agreed between the parties. Such an applicant must show the utmost good faith and disclose his case fully and fairly. He must, for the protection and information of the defendant, summarize his case and the evidence in support of it by an affidavit or affidavits sworn before or immediately after the application. He must identify the crucial points for and against the application, and not rely on general statements and the mere exhibiting of numerous documents. He must investigate the nature of the cause of action asserted and the facts relied on before applying and identify any likely defences. He must disclose all facts which reasonably could or would be taken into account by the Judge in deciding whether to grant the application. It is no excuse for an applicant to say that he was not aware of the importance of matters he has omitted to state. If the duty of full and fair disclosure is not observed, the Court may discharge the injunction even if after full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure".
16 We must emphasize the passage concerning the exhibiting of numerous documents. It is not sufficient for a plaintiff to be able to say that, buried somewhere amongst the voluminous exhibits, the point at issue was available to the judge. The duty is much more stringent. All defences actually raised by the defendant or which can reasonably be expected to be raised in due course must be identified and fairly summarized in the affidavit. If the affidavit itself is voluminous, counsel may need to refer the judge to the relevant points. The overriding duty of the applying party and his advocate is to ensure that all actual or possible defences (and other material matters) are brought to the specific attention of the judge so that he may consider them before making his order".
18. The defendants assert that the failure of the plaintiff to make disclosure is wholesale and Advocate Swart in his skeleton argument listed numerous documents which he said should have been added to those given to the Deputy Bailiff. The dealings between the parties have been acrimonious and have given rise to voluminous documentation but as made clear in Goldtron it is the identifying of the crucial points for and against the application for the judge that is important, not the exhibiting of numerous documents. At the hearing Advocate Swart summarised the defendants' key complaints as follows:-
(i) Whilst the Order of Justice makes reference to the joint venture agreement when particularising the alleged conduct of the defendants of which it complains, the joint venture agreement itself was not amongst the documents given to the Deputy Bailiff. In particular, the defendants argue that the Deputy Bailiff should have had his attention drawn to the provisions of Article 9.12 of the joint venture agreement, which provides for dispute resolution by way of arbitration in New York. The second part of the summons issued by the defendants (to be argued later) seeks a stay of the Jersey proceedings pending resolution by such arbitration.
Advocate Kistler points out that no relief is sought under the joint venture agreement in the Order of Justice and it is the shareholders' agreement that regulates the parties' dealings with the joint venture company. That agreement, whilst governed by New York law, contains no such dispute resolution provision. The defendants rely on section 14.11 of the shareholders' agreement, headed "Entire Agreement" which provides that the shareholders' agreement supersedes all prior agreements other than three named agreements one of which includes the joint venture agreement. Advocate Kistler argues that as a matter of construction that section cannot import into the shareholders' agreement the dispute resolution provision contained in the joint venture agreement. He points out that one of the other agreements specified is governed by Jersey law and subject to the exclusive jurisdiction of the courts of Jersey.
We do not wish to pre-judge the issue as it may fall to be determined by the Court in due course but we agree with Advocate Kistler that this would not have been an argument that the plaintiff could reasonably have expected to have been raised by the defendants and which should therefore have been drawn to the attention of the Deputy Bailiff. The joint venture company is incorporated in Jersey and what is being invoked, in part, is a specific remedy given under the Companies (Jersey) Law 1991 to companies incorporated in Jersey and which would not be available other than in this jurisdiction (see In the matter of Nasbulk Limited  BVIHCM (Com) 65 of 2012).
(ii) Whilst the defendants accept that Consolidate Resources made demand under the Convertible Loan Notes on 10th June, 2013, the right of the plaintiff to make demand was challenged, they say, by Mr Krikorian and the demand has not been renewed since. In particular, under the terms of the agreement with Signature, that liability would have been taken over by Signature. This all should have been drawn to the attention of the Deputy Bailiff in the context of the Signature agreement, which should have been disclosed to him.
Advocate Kistler responded that the debt due under the Convertible Loan Notes was expressly dealt with in the Signature agreement. He drew our attention to a letter written by Mr Borkowski as an update pursuant to that agreement which refers to the Convertible Loan Notes remaining "past, due and in default with all security and guarantee interests in full force and effect". The disclosure letter of 28th November, 2013, also refers to the Convertible Loan Notes being past maturity and in default with more than US$2.1M in principle being outstanding. It was clear, Advocate Kistler said, that there had been no waiver by Consolidated Resources of its rights under the Convertible Loan Notes which remained in default and therefore due.
The challenge made by Mr Krikorian was not as to the rights of Consolidated Resources under the Convertible Loan Notes, but the ability of Mr Borkowski to represent it as a director. Whilst the issue of the beneficial ownership of Consolidated Resources may at some stage become open to scrutiny in these proceedings, there would seem little question that Mr Borkowski is a director of it.
We do not regard this complaint as amounting to material non-disclosure.
(iii) In paragraph 25 of the Order of Justice (set out above) Consolidated Resources had asserted that both the joint venture company and Mr Krikorian had failed to give an undertaking to dispose of, encumber or dissipate the joint venture company's assets. The correspondence from Carey Olsen, acting for Consolidated Resources, had not been disclosed to the Deputy Bailiff and that showed that the letters were addressed to the joint venture company at Ogier (who administered it) and not to Mr Krikorian and therefore it was wrong to have claimed in the Order of Justice that Mr Krikorian had refused to give an undertaking.
Advocate Kistler accepted that the letter of 24th February, 2014, asking for an undertaking had been addressed to the joint venture company at Ogier and not to Mr Krikorian. This was an error made in the haste of preparing the application. However, as the executive chairman of the joint venture company, Mr Krikorian would have received that correspondence (and indeed the others letters sent by Carey Olsen at that time) and as executive chairman was in a position to respond.
In his first affidavit, Mr Krikorian acknowledges receipt of the correspondence and gives as reasons for not responding firstly that they did not recognise the jurisdiction of the Jersey Court, secondly the points being taken in relation to the notice were very technical and of a type which had never been taken previously and thirdly, they did not consider an undertaking was appropriate or required in the circumstances where they were actively trying to resolve matters.
Advocate Kistler points out that Mr Krikorian was directly copied in to a letter written by Carey Olsen on 7th March, 2014, in relation to the adjourned meeting, in which he was informed that Consolidated Resources had filed with the Royal Court an application for an injunction restraining the company from dealing with its assets. The letter noted that there had been no acknowledgement from either the joint venture company, Global Gold or Mr Krikorian to any of the letters sent by Carey Olsen. The shareholders' meeting proceeded in any event.
The claim in the Order of Justice that Mr Krikorian had failed to give an undertaking was inaccurate, but we do not regard this as being material. It was clear that Mr Krikorian had received the correspondence from Carey Olsen and was party to the decision not to give an undertaking.
(iv) In its particulars, the plaintiff claims inter alia that the joint venture company had unlawfully encumbered its assets by incurring liabilities in the form of an US$8.8M secured debt facility with Linne Mining, created bogus inter-company encumbrances of approximately US$5M in favour of Mr Krikorian and Global Gold and entered into unreasonable contracts for the employment of Mr Krikorian and other officers of Global Gold.
Advocate Swart referred us to a minute of the board of the joint venture company of 18th June, 2013, approving the Linne Mining facility which had been attended by Mr Premraj (which was amongst the papers disclosed to the Deputy Bailiff) and a written resolution of the directors of the joint venture company of 19th September, 2012, agreeing inter alia to the contracts of employment and the reimbursement of expenses incurred by Global Gold (which again was amongst the papers disclosed to the Deputy Bailiff).
Advocate Kistler in response referred us to a letter from Consolidated Resources of 12th June, 2012, to Mr Krikorian and Global Gold complaining of pressure being placed upon the board of the joint venture company to effect wholesale changes to the joint venture agreement to the benefit of Global Gold. The letter states that Mr Premraj is not a director of Consolidated Resources and does not exercise any authority over the joint venture between Consolidated Resources and Global Gold. This was repeated in an e-mail and letter of 11th April, 2013. Advocate Kistler submitted that Consolidated Resources had objected in clear terms to those resolutions being passed.
Whilst these documents had been disclosed, the issue of the possible ratification of the matters complained of by the director nominated by Consolidated Resources had not been drawn to the attention of the Deputy Bailiff and we think it should have been. We will consider the implications of this later but it relates to part only of the case against the defendants on unfair prejudice.
19. In general terms Advocate Swart submitted that in issuing the notice for the shareholders' and directors' meeting, Mr Krikorian, on behalf of Global Gold, was merely exercising the rights of Global Gold under the shareholders' agreement and there was no evidence before the Court that it had done anything which was contrary to the provisions of that agreement. Global Gold simply wanted to unlock the value in the joint venture company for the benefit of its shareholders and whilst these injunctions were in place, the project was effectively mothballed.
20. Advocate Kistler submitted that under the terms of the shareholders' agreement, the notices convening the meetings were defective and despite Carey Olsen's protest on behalf of Consolidated Resources, Mr Krikorian and Global Gold had pressed ahead with the adjourned shareholders' meeting. Global Gold's SEC return (equivalent we understand to an annual return) notes on page 25, in relation to the joint venture company, that the shareholders by a majority at the adjourned meeting had approved a draft audit report, an act which Advocate Kistler says is in breach of the shareholders' agreement and prejudicial to Consolidated Resources.
21. Advocate Swart raised a number of other complaints about the plaintiff's conduct on this matter, which we have taken into account, but in the interests of expedition, we have addressed what we consider to be the key issues raised. We were reminded by Advocate Kistler of the words of Longmore LJ in the case of Kazakhstan Kagazy Plc v Arip  EWCA Civ 381:-
"36 As long ago as 1990 Sir Nicholas Browne-Wilkindon V-C asked this court for guidance about the right approach to be taken to the inevitably lengthy hearings which were then growing in relation to non-disclosure in respect of freezing and search and seizure orders, see Tate Access Inc v Boswell  Ch. 512, 533H-534D. I am not aware that this court has ever answered that cri-de-coeur and we did not receive any argument which would enable us to do so authoritatively in the present case. The judge adopted the approach of Toulson J (as he then was) in Crown Resources AG v Vinogradsky 915th June 2001) for cases of any magnitude and complexity and I am content to do the same:-
"...issues of non-disclosure or abuse of process in relation to the operation of a freezing order ought to be capable of being dealt with quite concisely. Speaking in general terms, it is inappropriate to seek to set aside a freezing order for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself. (pages 4-5 of the transcript)
Secondly, where facts are material in the broad sense in which that expression is used, there are degrees of relevance and it is important to preserve a due sense of proportion. The overriding objectives apply here as in any matter in which the Court is required to exercise its discretion. (page 6)
I would add that the more complex the case, the more fertile is the ground for raising arguments about non-disclosure and the more important it is, in my view, that the judge should not lose sight of the wood for the trees. (page 7)
In applying the broad test of materiality, sensible limits have to be drawn. Otherwise there would be no limit to the points of prejudice which could be advanced under the guise of discretion (page 22).""
22. In Bank Mellat v Nikpour  FSR 87, 92-93, (cited with approval in Goldtron) Slade LJ made this observation:-
"I think it is of the utmost importance that on any ex parte application for an interim injunction the applicant should recognise his responsibility to present his case fully and fairly to the court and that he should support it by evidence showing the principal material facts upon which he relies. Most particularly, I think that this duty falls on an applicant seeking a Mareva injunction which, if granted, may have drastic consequences for a defendant, by freezing assets in this country which are not necessarily even the subject matter of the action."
23. Whilst not detracting from the general obligation to make full and fair disclosure in any ex parte application for an interim injunction, we note that:-
(i) This is not a Mareva injunction. There is no injunction over the assets of Mr Krikorian and Global Gold. The injunction relates solely to the joint venture company, which is the subject matter of the action.
(ii) Transactions in the ordinary and proper course of business are not restricted.
(iii) Bearing in mind the provisions of the shareholders' agreement, the injunctions in fact go little further than the contractual restrictions already placed upon the activities of the joint venture company.
24. In this case, there has been material non-disclosure as noted above, but in our view it was innocent and would not have made a difference to the decision of the Deputy Bailiff to grant the interim injunctions. It would be disproportionate for the injunctions to be lifted on account of it, and we decline to do so. The interim injunctions will therefore remain in force.
25. Consolidated Resources' claim that Mr Krikorian and Global Gold have used their positions as executive chairman and majority shareholder respectively in a manner which is prejudicial to the interests of Consolidated Resources and we must not pre-judge that issue. What is clear is that the joint venture company is deadlocked and it is unsatisfactory for any commercial entity to be in that position for any length of time. The action has been started by Order of Justice (we make no criticism of that) and, because of the defendants' jurisdictional challenge, no answer has yet been filed. We are not aware of any date having been fixed for the hearing of that jurisdictional challenge.
26. In our view, this matter should now become a "cause de brièveté" and expedited directly to a final hearing, with appropriate directions for the filing of skeleton arguments and evidence. We invite the submissions of counsel on this when this judgment is handed down, but consideration might be given to separating out the unfair prejudice claim for an expedited hearing and leaving the financial claims to await the outcome of the unfair prejudice claim. In the latter case, it will be possible to leave aside for the moment the issue that has been raised by Consolidated Gold as to whether the joint venture company is able to instruct Mr Swart's firm to represent it, bearing in mind that there has been no directors' meeting to authorise such representation.
Companies (Jersey) Law 1991.
In the matter of Nasbulk Limited  BVIHCM (Com) 65.
Bank Mellat v Nikpour  FSR 87, 92-93.