Mr Nopporn Suppipat v Mr Nop Narongdej
| Jurisdiction | England & Wales |
| Court | King's Bench Division (Commercial Court) |
| Judge | Mr Justice Calver |
| Judgment Date | 31 July 2023 |
| Neutral Citation | [2023] EWHC 1988 (Comm) |
| Docket Number | Case No: CL-2018-000716 |
40
The Advisory Services Agreement
43
Negotiations to enter into a Call Option Agreement
45
The First Paris Meeting
45
First draft Call Option Agreement
48
Second draft Call Option Agreement
51
Consideration by SCB of Khao Kor
51
SCB's failure to enquire into (i) the deferred payment structure under the REC SPAs and (ii) the “Gentlemen's agreement”
52
The Bangkok Meeting – the draft Steps plan and MOU
54
REC SPAs amended and restated
56
REC share transfer instruments
57
Proposed escrow arrangement
57
Watabak financing
58
Third Draft Call Option and Steps Plan
59
The (lack of) response
60
Memorandum of Understanding
62
The Symphony transfer and the Watabak Representations
64
WEH Managers' awareness of the call option documents
67
Watabak Facility
67
Meeting in Bangkok
68
The Cannes Meeting
72
First Instalments and financing issues
74
Nop's attempts to source funds to meet the purchase price
74
MBK
75
Payment Representations
76
Second Paris Meeting and First Payment Representations
76
Second Payment Representations
78
ASSET STRIPPING CLAIMS
80
Preparations for asset stripping scheme
80
Payments made under REC SPAs in late 2015
80
Grant Thornton report
81
2016 Arbitration proceedings; Emergency Measures and the BVI injunction
84
SCB's knowledge of and reaction to the arbitration proceedings
88
Engagement of Khun Weerawong
94
Emergency Arbitrator grants emergency measures
97
The 17 March 2016 meeting and the ring-fencing strategy
100
1.25% stake for WEH Managers
103
Project Houdini presentation
104
SCB IPO Engagement Letter
107
SCB Summary Chart of Dispute
108
29 March 2016 meeting of SCB and WCP
110
White Boards
114
Termination of the KPN EH SHA
119
7 April 2016 Meeting Minute
121
Termination of ASA
123
Drafting of First WCP Opinion
124
The Kasem Transfer
130
(1) REC Notices and Minutes
131
(2) Kasem Agency Agreement
135
(3) Kasem SPA
143
(4) Kasem Transfer Instrument
146
(5) Tassapon Transfer Instrument and Revenue Receipt
147
Application to Emergency Arbitrator
151
(6) Purchase Price
151
(7) The Ploenchit Report
153
(10) Repeated failures to update the WEH share register
160
(11) Watabak waiver request and 17 May Credit Committee Meeting
162
(12) Emergency Arbitrator's refusal
163
(13) Finalisation of First WCP Opinion
164
(14) SCB awareness of the Kasem Transfer
167
ExCom Meeting of 25 May 2016: consideration of Watabak Facility
178
SCB's lack of awareness of Kasem SPA purchase price
182
Inspection of transfer documents
183
Second WCP Opinion
186
Watabak share pledge waiver considered and granted
188
Drawdown on Watabak
190
(15) Circular payments under the Kasem SPA
190
(16) Wichai/ Itti Loan Agreements
191
(17) The Orix Negotiations
193
(18) Further Gunkul negotiations
203
Further transfers of Relevant WEH Shares; arbitrations under REC SPA
204
(1) SPV SPAs
204
(2) Failure to satisfy Escrow Condition
205
(3) Golden Music SPA
208
(4) Pradej SPA
209
(5) First Partial Awards in the Arbitrations and the IPO
211
(6) Preparations for the IPO and WEH Managers' 1.25% stakes
212
(7) Janyaluck SPA
220
(8) Cornwallis SPA
220
(9) Belize injunction against Cornwallis
224
(10) Cornwallis-Opus Share Transfer; Srun-Nop Loan Agreement
225
(11) Letter of indemnity
231
(12) “Loan Agreements” Between Khun Nop and Khun Pradej
232
(13) Second Partial Awards under 2016 Arbitrations
233
LEGAL ANALYSIS – PRELIMINARY REMARKS
234
The contemporaneous documentary evidence
234
The burden of proof concerning allegations of fraud
235
The factual witnesses
236
Expert evidence on Thai Law
237
MISREPRESENTATION CLAIMS
238
The pleaded misrepresentations
238
The Global Transaction Representations
238
(1) Limitation
239
(2) Is the Section 341 offence sufficiently pleaded?
247
(3) The merits of the s. 341 offence
251
(4) The requirements of s. 420 TCCC
254
(5) The merits of the s. 357 offence
256
(6) s. 421 TCCC: Abusing Cs' rights
258
The Watabak Representations
260
(1) Merits
260
The Payment Representations
263
(1) Applicable law
263
(2) Time bar
266
Abuse of process
266
(1) The HP Defendants' submissions
266
(2) The Claimants' submissions
268
(3) Factual analysis
270
(4) The law
278
ASSET STRIPPING CLAIMS
284
s. 420 TCCC: Unlawfully causing injury
284
(1) s. 350 TPC: cheating against creditors
287
(2) s. 421 TCCC
307
(3) Combining together to effect the transfer causing harm to Cs
308
(4) s. 237 TCCC: rescission of transactions which cheat creditors
308
(5) Falsifying of documents contrary to sections 179, 264, 265 and 268 TPC
310
(6) Breach of directors' duties under s. 1168, 1206 and 1207 TCCC
315
(7) Non-performance of the Kasem SPA
319
(8) Further alleged elements of unlawfulness
320
(9) The other elements of the section 420 claim (based on s. 350 TPC)
323
s. 432 TCCC: Joint wrongdoers/ assisters/ instigators
326
(1) Joint wrongful act: s. 432(1)
326
(2) Instigation/ assistance: s. 432(2)
327
(3) Applying the law to the facts
331
Limitation
341
(1) s. 420/ s. 350 claim
342
Submissions
342
(2) s. 432 claim
348
350
(1) Sufficient connection with England and Wales
351
(2) Impossible to get a fair trial in Thailand?
359
Quantum
361
(1) The primary participants (under s. 420 TCCC (based on s. 350 TPC))
362
(2) Against the secondary participants
378
The ASA and related claims
380
(1) The relevant obligations under the ASA
381
(2) The claim for breach of the ASA and the counterclaim
384
(3) Is the ASA forward or backward looking?
384
(4) Breaches of the ASA
389
(5) Breach of fiduciary duty
393
(6) Tort of bribery
398
(7) Unlawful means conspiracy
404
SUMMARY OF FINDINGS
407
Misrepresentation Claims
407
Asset-Stripping claims
408
POSTSCRIPT
410
Mr Justice CalverFACTUAL NARRATIVE
BACKGROUND TO THE CLAIM
The parties to the claim
The First Claimant ( Mr Suppipat) is a successful Thai businessman who founded Renewable Energy Corporation Company Limited ( REC) in 2006 and Wind Energy Holding Company Limited ( WEH) in 2009. He was co-CEO and a Director of WEH until 15 December 2014. The Sixteenth Defendant ( Khun Pradej) is a co-founder of WEH.
Both REC and WEH are Thai companies. Mr Suppipat held an interest in 97.94% of the shares in REC through the Second Claimant ( Symphony), the Third Claimant ( NGI) and the Fourth Claimant ( DLV) (together, Mr Suppipat's Companies). REC owned approximately 59.46% of the shares in WEH (the Relevant WEH Shares), a successful company involved in the development of wind farm projects in Thailand.
The Second Defendant ( Ms Collins) was co-CEO and then CEO of WEH between September 2014 and December 2020. The Third Defendant ( Khun Thun) was the former CFO, former Deputy CEO and a former Director of WEH, and the former Managing Director of REC. The Fourth Defendant ( Mr Lakhaney) is the former Head of Corporate Finance and a former Director of WEH. Together, the Second to Fourth Defendants will be referred to as the WEH Managers. The Fifth Defendant ( Ms Siddique) is Mr Lakhaney's wife.
Ms Collins is the beneficial owner of the Sixth Defendant ( Colome), a company incorporated in the British Virgin Islands ( BVI). Khun Thun is the beneficial owner of the Seventh Defendant ( Keleston), a company incorporated in the BVI. Mr Lakhaney is the beneficial owner of the Eighth Defendant ( ALKBS), a company incorporated in Delaware.
The Tenth Defendant ( SCB) is the third largest commercial bank in Thailand and WEH's main lender. It was established by royal charter and its largest single shareholder, owning approximately 23% of SCB's shares, is the King of Thailand. The
Eleventh Defendant ( Khun Arthid) was CEO of SCB at the material time, as well as a board member (April 2015-present), Vice-Chairman of the Executive Committee ( ExCom) (April 2015–July 2016) and President of SCB (July 2016-February 2019). The Thirteenth Defendant ( Khun Weerawong) is a non-executive director of SCB and an employee (and co-founder) of Thai law firm Weerawong, Chinnavat & Partners ( WCP)The First Defendant ( Khun Nop) is the owner of Fullerton Bay Investments Limited ( Fullerton) and KPN Energy Holding Company Limited ( KPN EH) (together, Khun Nop's Companies). His family owns a group of companies known as the “ KPN group”. The Seventeenth Defendant ( Khun Nuttawut) is a business associate of Khun Nop and former CFO of the KPN group.
The Fourteenth Defendant ( Dr Kasem) is the father of Khun Nop. The Fifteenth Defendant ( Madam Boonyachinda) is Khun Nop's mother-in-law.
The Ninth Defendant ( Golden Music) is a company incorporated in Hong Kong. Madam Boonyachinda claims to be its beneficial owner, but it is alleged by the Claimants that the beneficial owner is instead Khun Nop.
The Twelfth Defendant ( Cornwallis) is a company incorporated in Belize. Madam Boonyachinda claims to be its beneficial owner, but it is alleged by the Claimants that since June 2018 it has been beneficially owned by Khun Nop, and before June 2018 (at least) it was owned by Khun Arthid.
Transfer of REC shares
Prior to mid-2015, Mr Suppipat was, as I have stated, the ultimate beneficial owner of a very valuable majority stake (59.46%) in WEH, held through REC. The other main shareholders in WEH were another Thai individual, the sixteenth defendant Khun Pradej Kitti-Itsaranon ( Khun Pradej), and companies and individuals...
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