Petrochemical Logistics Ltd v PSB Alpha AG
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Moulder |
| Judgment Date | 27 April 2020 |
| Neutral Citation | [2020] EWHC 975 (Comm) |
| Date | 27 April 2020 |
| Docket Number | Case No: CL-2020-000144 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 975 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
THE HONOURABLE Mrs Justice Moulder
Case No: CL-2020-000144
Guy Blackwood QC and Turlough Stone (instructed by Vitaliy Kozachenko) for the Claimants
Christopher Lloyd (instructed by Keystone Law) for the Defendants
Hearing dates: 8 April 2020
APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mrs Justice Moulder
This is the reserved judgment on the claimants' application of 16 March 2020 to continue a freezing injunction (the “Injunction”) which was made on an ex parte basis on 13 March 2020 by order of Henshaw J (the “March Order”) and continued pending the handing down of this judgment by order of this court on 8 April 2020. (The original return date of 27 March 2020 was adjourned by consent.)
The defendants apply to set aside the Injunction and/or to set aside the permission for service by email.
Due to the coronavirus the hearing was held remotely but both parties were represented by counsel. As the application for an injunction was made in connection with an underlying arbitration and pursuant to Section 44 of the Arbitration Act 1996 (the “Act”) the hearing was held in private.
Evidence
The claimants have filed evidence in the form of three affidavits of Mr Kozachenko, an English solicitor with the firm of Fortior Law acting for the claimants, dated 12 March, 13 March and 3 April 2020 and a witness statement of Mr Axel Krueger (“Mr Krueger”) dated 8 March 2020.
The defendants have filed a witness statement of Mr Konstantinos Ghertsos (“Mr Ghertsos”), the second defendant, dated 31 March 2020 and a witness statement of Mr Alessandro Laurenti, a Swiss lawyer acting for the defendants, dated 31 March 2020.
Background
The claimants are Petrochemical Logistics Ltd (“Petrochemical”) and Mr Krueger. Petrochemical is a company registered in Gibraltar.
PSB Alpha AG (“PSB Alpha”) is a company registered in Switzerland with shares in bearer form.
Alpha Terminals BV (“Alpha Terminals”) is a company registered in The Netherlands which was owned by PSB Alpha. Alpha Terminals owns land on which a storage terminal for oil and petroleum products is to be built (the “Vlissigen Project”). Petrochemical has made three loans in connection with the Vlissigen Project: two to Mr van Croonenburg and an associated company and one for CHF 50,000 to PSB Alpha. The agreement for the latter provided for LCIA arbitration in London.
It is the claimants' case that:
i) pursuant to a share purchase agreement dated 25 November 2019 (the
“November SPA”) Mr Ghertsos sold his 100% shareholding in PSB Alpha to Mr Krueger; and
ii) pursuant to a share purchase agreement dated 16 January 2020 (the “January
SPA”) PSB Alpha sold its shares in Alpha Terminals to Petrochemical.
However Mr Ghertsos has not delivered the bearer share certificates in PSB Alpha to Mr Krueger. Notwithstanding that Mr Krueger had not received the bearer share certificates, in reliance on the November SPA he purported to pass a shareholder resolution removing Mr Ghertsos as director of PSB Alpha and appointing himself as director.
It is the defendants' case that at the time of the purported sale of the shares by PSB Alpha, Mr Krueger did not own the shares in PSB Alpha as they are bearer shares and were not in his possession. Thus it is said that Mr Krueger could not validly appoint himself as the director of PSB Alpha and was not the owner of PSB Alpha. Accordingly it is the defendants' case that Mr Krueger could not validly enter into an agreement to sell the shares in Alpha Terminals to Petrochemical and the shares have been sold to AT Holdings Ltd.
It is the claimants' case that when Mr Ghertsos failed to deliver the shares in PSB Alpha, a deposit agreement was created such that the shares were held to the order of Mr Krueger. The claimants assert that Mr Krueger was therefore entitled to remove Mr Ghertsos as a director and appoint himself (Kozachenko 3 para 36) and to execute the January SPA whereby the shares in Alpha Terminals were sold to Petrochemical.
According to the defendants' evidence the shares in PSB Alpha remain (as to Mr Ghertsos' holding) at the offices of his lawyer in Switzerland. The balance of the shares is said by the defendants to be held by Century Capital pursuant to a pledge by Mr van Croonenburg (paragraph 36 of Laurenti). Mr Kozachenko questions whether this is correct and whether they are in fact in the offices of PSB Alpha and not in the possession of Mr Ghertsos (Kozachenko 3 paragraph 36). Mr van Croonenburg was previously a director of PSB Alpha and a current director of Alpha Terminals. He is also said by the defendants to have owned 36% of the shares in PSB Alpha at the time of the November SPA. The claimants dispute this and maintain that Mr Ghertsos owned 100% of the shares at the relevant time.
AT Holdings is a company registered in the Netherlands with its registered office in Canada. It is a subsidiary of Century Capital Management Ltd (“Century”). The claimants originally sought an injunction against AT Holdings but did not pursue that application before Henshaw J. It is now the subject of a separate application by the claimants.
The November SPA is governed by Swiss law and disputes are to be referred to a Swiss arbitration. The January SPA is governed by English law and disputes are to be referred to an English arbitration. No arbitrator has yet been appointed in either arbitration.
Chronology
On 19 December 2019, Mr Ghertsos wrote to Mr Hromyk, the Managing Director of Century Capital and AT Holdings, as follows:
“I cc Axel Krueger – purchaser / restructured company package (including PSB) for sake of ease…”
On 9 January Mr Krueger sent an email to Century (copied to Mr Ghertsos) as follows:
“Dear All,
I understand that you have been informed that I have taken over K Ghertsos companies including PSBA. Therefore K Ghertsos has no more corporate authority to finalise this transaction hence this email to notify you accordingly.
In relation to this transaction and the execution of the legal documents I had a preliminary review. The current status and conditions are not in line with my expectation consequently not in the position to execute the deal that i (sic) can be executed as certain parameters needs reviewing mainly:
1) SPA wording: certain clauses are not acceptable so please send Word version for marking up comments to rebalance the legal position,
2) 10% K Ghertsos shares should be directed to PSBA,
3) I Fux liabilities not 100% covered as per initial understanding.
There are minor other issues which can be addressed later.
I appreciate that this may be some deviation to what may have been discussed before but surely a deal must be fairly balanced between the parties which is not the case for now and therefore need to be addressed accordingly.” [emphasis added]
Century responded by email on 10 January 2020:
“We are taken aback by your message, which we receive as an attempt by PSBA Alpha BV to re-negotiate the agreed transaction between us, in bad faith. We request that you provide us with your legal authority to represent PSBA, and your date of appointment…”
…As recently as December 12, 2019 Kostas stated in writing “We're agreed thank you” in response to my direct question “I would like to know we have agreement on the form of documents before we engage with the notary to get this formalized. Are we agreed or is there another process now?” You were cc'd on this correspondence…
I propose two options for you to consider:
• you can confirm your authority with PSBA, affirm the existing agreement, make any minor drafting suggestions to the formal documents (which we will consider but will not agree to accept without first seeing them) and move to close this transaction; or
• you can immediately refund to us all monies we have advanced to PSBA & its subsidiary ATBV as well as all other out-of-pocket costs we have incurred in pursuing this transaction, plus a fee for our time which we will offer to settle at 25% of the monies we have expended. This figure will be approximately USD $600,000.
Should PSBA be unwilling to choose either of these options, we will have no choice but to immediately commence formal legal action against both PSBA and Kostas personally.” [emphasis added]
The email exchanges continued. It is the claimants' case that Mr Krueger concluded that he did not want to enter into a sale on the terms offered by Century (paragraph 29 of Kozachenko 1) and that PSB Alpha was free to dispose of the shares “as it considered appropriate”. Accordingly it is the claimants' case that on 16 January 2020 Petrochemical purchased the shares of Alpha Terminals from PSB Alpha.
On 16 January 2020 Century wrote to Mr Krueger asserting that they had an agreement for the purchase of the shares in Alpha Terminals and “again pressing Mr Krueger for proof of his authority to act for PSB Alpha as well as proof of his acquisition of the shares in that company” (Kozachenko 1 paragraph 40).
The relevant email read (so far as material):
“I note that you have ignored my request that you provide us with your legal authority to represent PSB Alpha AG, and your...
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