In the matter of Greensill Capital (UK) Ltd (in admin)

Texts Cited: M Davies et al, Nygh’s Conflict of Laws in Australia, 11th ed, [8.53]

Category: Procedural rulings

Parties: Greensill Capital (UK) Ltd (in admin) (Plaintiff)
Liberty Holdings Australia Ltd (First Defendant)
Liberty OneSteel (MDR) UK Ltd (Second Defendant)

Representation: Counsel:
D Sulan SC/J Anderson/D Monteith (Plaintiff)
S J Maiden KC/S Aspinall (Defendants)
Solicitors:
A & O Sherman (Plaintiff)
Norton Rose Fulbright Australia (Defendants)

File Number(s): 2025/365519

JUDGMENT

Nature of the application and background facts

1. By Interlocutory Process filed on 2 October 2025, the Defendants, Liberty Holdings Australia Ltd (“LHA”) and Liberty OneSteel (MDR) UK Ltd (“MDR”) seek an order under r 12.11(11)(1)(h) or (i) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the Court decline to exercise jurisdiction in these proceedings or alternatively stay these proceedings pending the outcome of proceedings (“English Proceedings”) they have commenced in England. I have concluded that the Interlocutory Process should be dismissed with costs, for the reasons set out below.

2. I should first briefly set out the background facts and the nature of the English Proceedings and these proceedings before turning to the affidavit evidence and submissions. The Plaintiff, Greensill Capital (UK) Limited (in administration) (“GCUK”), is a private limited company incorporated under the laws of England and Wales. LHA is a company incorporated in Australia and MDR is a company incorporated under the laws of England and Wales. It is common ground that LHA and MDR are part of the GFG Alliance group of companies (“GFG Alliance”) which is engaged in various business and commercial activities across Australia, Asia (including the Middle East), Europe and North America, with a focus on steel production and related mining and industrial activities.

3. It is common ground that a deed dated 13 February 2021 between MDR as chargor and GCUK as chargee (Ex J1, 1152) (“Debenture”) provided that MDR charged all assets of MDR, including its shares in LHA, as security in favour of GCUK. Clause 28 of the Debenture (Ex J1, 1177) relevantly provides that:

“28.1 This deed and any dispute or claim (including non-contractual disputes or claims), arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

28.2 Each party irrevocably agrees that, subject as provided below, the Courts of England and Wales shall have exclusive jurisdiction over any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Deed or its subject matter or formation. Nothing in this clause shall limit the right of [GCUK] to take proceedings against [MDR] in any other Court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.”

4. Mr Maiden (with whom Mr Aspinall appeared for LHA and MDR) fairly accepts that this clause does not constrain GCUK’s entitlement to commence proceedings in respect of the Debenture in this Court, which is a Court of competent jurisdiction, and there is no suggestion that this clause prevents LDA and MDR from raising any available defence to a claim brought by GCUK in this Court.

5. By a Specific Security Agreement – Shares dated 1 March 2021 (Ex J1, 1690) (“SSD”), which was prepared by Australian solicitors, LHA and MDR granted a security interest in shares held in two Australian companies to GCUK (cl 3, item 2 to the Schedule to the SSD). The SSD relevantly recites the provision of supply chain finance and accounts receivable programs and structured finance solutions by GCUK and the parties’ agreement to provide the SSD as security for the due performance of certain obligations. By cl 3, LHA and MDR charge and grant a Security Interest in the Shares to, inter alia, GCUK as Security for the due and punctual performance, observance and fulfilment of its obligation to the secured party or any other member of the Greensill Group under each Finance Document (as defined). The term “Shares” is there defined as shares described in Items 1 and 2 of the Schedule, which refer to security granted by MDR over shares in LHA and security granted by LHA over shares in Liberty Infrabuild Ltd. By cl 8.1, the parties acknowledge that the Security Interest created by the SSD Attaches to the shares in accordance with the Personal Property Securities Act 2009 (Cth) (“PPSA”), and the term “Attach” is there defined as having the meaning given to that term by the PPSA. Clause 32.8 provides that Queensland law governs the document, and each party irrevocably submits to the non-exclusive jurisdiction of the Queensland Courts competent to hear appeals from those Courts. The security interest created under the SSD is registered on the Personal Property Securities Register (“PPSR”).

6. A dispute as to the status of the Debenture and the SSD had arisen by early 2022. By letter dated 22 March 2022 (Ex J1, 2067), the administrators to GCUK gave notice of default under the Debenture and the SSD and reserved the right to take enforcement action under those documents; and by letter dated 29 May 2022, GFG Alliance contended that those documents had never become legally effective and that there was never any intention of the parties to enter contractual relations and addressed Mr Gupta’s intentions as to those documents. By a further letter dated 20 June 2022, GCUK’s administrators again maintained those documents were binding on LHA and MDR, referred to the registration of GCUK’s security interest on the PPSR and again reserved GCUK’s rights. By letter dated 27 June 2022, (Ex J1, 2187), LHA and MDR together identified several potential defences to claims under those documents and repeated a contention that those documents were not intended to be legally binding. By letter dated 18 August 2022 (Ex J1, 2199), GCUK’s administrators took issue with those claims.

7. By letter dated 3 September 2025 to LHA and MDR, prior to their commencement of these proceedings and LHA’s and MDR’s commencement of the English Proceedings, the administrators appointed to GCUK requested confirmation that LHA and MDR accepted the validity of the Debenture and the SSD and foreshadowed commencing proceedings in this Court if that was not confirmed. On 10 September 2025, LHA and MDR responded asserting that the Debenture and the SSD were invalid and unenforceable and confirming that their Australian solicitors had instructions to accept service of any process. LHA and MDR did not then suggest that they intended to commence the English Proceedings or that this Court was an inappropriate jurisdiction to determine the matters previously raised by GCUK.

8. On 22 September 2025, LHA and MDR commenced the English Proceedings against GCUK, UBS Asset Management (Switzerland) AG (“UBS”) and Greensill Bank AG (in insolvency) (“GBAG”). By their Amended Brief Details of Claim dated 22 September 2025 (Ex J1, 3200) in the English Proceedings, LHA and MDR summarise their claims in respect of the Debenture and the SSD as follows:

“The Claimants seek recission of the Security Documents and/or declarations that the Security Documents are not valid, binding and/or enforceable on the grounds that:

(1) The Claimants were induced to enter into the Security Documents on the basis of misrepresentations made by or on behalf of [GCUK] in circumstances where [GCUK] knew or ought to have known the true position;

(2) The Claimants entered into the Security Documents on the basis of a unilateral mistake which was known or ought to have been known to [GCUK];

(3) [GCUK] is estopped by convention or otherwise from asserting that the Security Documents are valid, binding and/or enforceable; and/or

(4) The Security Documents were delivered as escrows only and/or their delivery was conditional on certain conditions which were never fulfilled.”

LHA and MDR also there seek a declaration as to the construction of the Security Documents, in respect of any security assigned by GCUK to any third parties or held on trust for third parties

9. By draft particulars of claim in the English Proceedings (Ex J1, 3175), LHA and MDR in turn refer to dealings between Mr Greensill and Mr Gupta in late 2020; to a request for security made by GCUK; and to conversations concerning that matter, and contend that:

“Induced by and in reliance on Mr Greensill’s assurances, and in light of the importance of GCUK’s financing to the GFG Alliance, Mr Gupta reluctantly agreed to sign documents providing security over [MDR’s] shares in LHA but only on the basis that:

(i) The security was to be strictly conditional on an extension of GCUK’s trade credit insurance being obtained and also provisional in the sense that, once an extension of the insurance had been granted, the necessary board approvals would also need to be obtained; and

(ii) The security was not to be registered, relied upon or enforced by GCUK or otherwise treated as valid, binding or effective unless and until GCUK obtained an extension of its insurance with Tokio Marine. In doing so, Mr Gupta was also reassured by the fact that he had signed the Personal Guarantee on a similar conditional basis in April 2020 and Mr Greensill had honoured their agreement that it would be kept in his “bottom draw” and not relied on or enforced by GCUK in the meantime.”

10. That formulation of MDR’s and LHA’s claim does not identify anything other than dealings between Mr Gupta and Mr Greensill as giving rise to the misrepresentation claim. The draft particulars of claim also refer to correspondence between the parties relating to the grant of security; repeat the claim that Mr Gupta was “very reluctant” to grant security over the Australian companies; suggest that he did not have the authority to do so; and then address further correspondence relating to those matters. The draft particulars of claim identify a misrepresentation case based on representations allegedly made by Mr Greensill to Mr Gupta in January and February 2021; a mistake case; an estoppel case; a claim that the documents were delivered in escrow; a claim as to the construction of security documents, and seek a range of relief against GCUK. There appears to be no dispute that LHA’s and MDR’s claims against GCUK in the English Proceedings are presently barred by the statutory administration moratorium under paragraph 43(6) of Schedule B1 to the Insolvency Act 1986 (UK), unless the English Court grants permission to LHA and MDR to pursue them.

11. LHA’s and MDR’s draft particulars of claim in the English Proceedings also indicate that UBS and GBAG have been joined as party to the English Proceedings “so that they will be bound by the outcome and/or any declarations the Court may make”. However, LHA and MDR do not seek relief against either UBS or GBAG in the English Proceedings and have not sought or obtained leave of the English Court to serve those parties outside the English jurisdiction. Any claim against GBAG (had such a claim been made) would also presently be barred by a statutory moratorium.

12. On 23 September 2025, GCUK commenced these proceedings by Originating Process supported by a Points of Claim and supporting affidavit of Mr Simpson dated 23 September 2025, seeking declaratory and other relief concerning security granted by LHA and MDR in respect of certain shares under the SSD on the basis set out in Points of Claim. At about the same time as LHA and MDR commenced the English Proceedings, and GCUK commenced these proceedings, LHA also granted further securities to Liberty Capital UK Ltd (“LCUK”) (Ex J1, 2962) which were purportedly registered on the PPSR.

13. By letter dated 23 September 2025, the English solicitors for LHA and MDR referred to earlier correspondence between GCUK’s solicitors and the Australian solicitors for LHA and MDR, asserted that the most appropriate forum for determination of the validity of the Debenture and two SSDs was the English High Court and referred to the commencement of the English Proceedings on 22 September 2025. By letter dated 25 September 2025 (Ex J1, 2272), the solicitors for GCUK took issue with that proposition and referred, inter alia, to the moratorium, which prevented the continuance of the English Proceedings against GCUK and confirmed that GCUK’s administrators do not consent to the commencement of the English Proceedings against GCUK.

14. By its Amended Originating Process dated 18 November 2025, GCUK extended its claim to also seek declaratory relief in respect of the Debenture. By paragraph 2 of the Amended Originating Process, GCUK seeks a declaration that the SSD between GCUK as the secured party and the Defendants as grantors is valid and enforceable. By paragraph 2A, it seeks a declaration that the Debenture between GCUK as chargee and MDR as chargor is valid and enforceable. GCUK also there seeks a declaration that the security interest in the shares identified in the schedule to the SSD granted by the Defendants to GCUK are a security interest within the meaning of that term in the PPSA; has attached to the shares within the meaning of s 19(2) of the PPSA; and is enforceable against the Defendants as grantors under s 19(1) of the PPSA. That matter is plainly in dispute, not least because Mr Maiden advised, in response to my inquiry, that LHA and MDR reserve any defences to the enforceability of the securities that may be available to them under the PPSA. Importantly, LHA and MDR do not seek to raise that dispute in the English Proceedings, which would not resolve any question as to the enforceability of those security interests under the PPSA and therefore could not finally resolve the dispute between the parties unless, possibly, LHA and MDR were wholly successful in that proceeding. I return to that matter below.

15. By letter dated 21 November 2025 to LHA, the administrators of GCUK noted the registration of the security interests on the PPSR in favour of LCUK, which I noted above, and requested specified documents and information pursuant to s 275 of the PPSA. By its response dated 3 December 2025 from its solicitors (Ex J1, 3111), LHA asserted the validity of those further securities and contested the validity and enforceability of the SSD.

16. On 27 November 2025, LHA and MDR filed an application for permission to continue the English Proceedings against GCUK. The English Court refused LHA’s and MDR’s application for an expedited hearing of their application to lift the stay of the English Proceedings (Ex J1, 3145), which will not be heard until 29 April 2026.

17. LHA and MDR rely on as witness statement of Mr Gupta in support of the permission application in the English Proceedings, which was admitted in this proceeding by the parties’ agreement with a limiting order under s 136 of the Evidence Act 1995 (NSW) as a statement of LDH’s and MDR’s position in the English Proceedings and not as proof of the fact. Mr Gupta there refers, in a somewhat summary way, to conversations in late 2020, and January and February 2021 with Mr Greensill and contends that:

“I ultimately agreed (on behalf of [LHA and MDR]) to sign or to procure the signing of the Security Documents, in reliance on the representations made by Mr Greensill. However, those representations made by Mr Greensill were false, and were known by Mr Greensill to be false at the time at which they were made.”

18. Mr Gupta does not there suggest that any other person was party to those conversations or present while they occurred, and he does not identify any document recording those matters. He recognises, in evidence (plainly by way of submission), the possibility of a contest of evidence between himself and Mr Greensill as follows:

“I recognise that as part of establishing the allegations set out in the [English Proceeding] I am likely to be eventually required to give live evidence. However, I am fully confident that the Court will accept my evidence. I also recognise that, if the GCUK Administrators are to dispute my evidence, they will likely have to call Mr Greensill as a witness. This is a matter were the parties’ respective positions in relation to the oral representations relied upon by [LHA and MDR] will in large part need to be determined by cross-examination.”

Nothing in Mr Gupta’s evidence in that respect suggests the likelihood that witnesses other than Mr Greensill and himself, or documents, will be of significance to the determination of that case. Mr Gupta also there recognises the existence of a “further dispute” as to the extent of the liabilities which would fall within the scope of the Debenture or the SSD if they were legally effective, turning on questions of construction of those documents. Counsel gave little attention to that “further dispute” in submissions. So far as that further dispute involves a question of construction of the SSD, which is governed by Queensland law, an Australian Court would plainly not be an inappropriate forum to determine it.

19. By their Points of Claim in support of the Interlocutory Process, LHA and MDR set out their defence to GCUK’s claim in these proceedings in terms that are broadly consistent with Mr Gupta’s witness statement in the English Proceedings as follows:

“In or around late 2020, Mr Greensill, GCUK’s principal, made Mr Gupta aware of various issues that GCUK was facing which potentially impacted on the GFG Alliance. These issues included issues with GCUK’s trade finance insurance. He explained that GCUK’s insurer, Tokio Marine Management (Australia) Pty Ltd (Tokio Marine), was unhappy with the extent of GCUK’s exposure related to the GFG Alliance, but that he was in discussions to address their concerns.

In or around early January 2021, Mr Greensill and Mr Gupta discussed the prospect of GFG granting GCUK security in respect of the InfraBuild business, which Mr Greensill said was required to assist with obtaining an extension of GCUK’s insurance with Tokio Marine. Mr Gupta was reluctant to grant this given (a) the value of the InfraBuild business and (b) that GFG would not be promised anything in return because GCUK would continue to provide its existing finance commitments. Mr Gupta was therefore not prepared to grant GCUK security in answer to Mr Greensill’s request.

Mr Greensill sought to persuade Mr Gupta to grant such security, and during the course of discussions in January and February 2021, he represented (on behalf of GCUK) to Mr Gupta (on behalf of LHA and [MDA]) that: (i) any security would be strictly conditional on an extension of GCUK’s trade credit insurance with Tokio Marine being obtained and also provisional in the sense that, once an extension of the insurance had been granted, the necessary board approvals would also need to be obtained; (ii) the security would not be registered or relied upon by GCUK or otherwise treated as valid, binding or effective, unless and until GCUK’s trade creditor insurance was extended; and (iii) there was a real prospect that Tokio Marine would agree to extend GCUK’s trade credit insurance and / or GCUK was not aware of any facts which would make it be impossible to extend the insurance.

Mr Gupta ultimately agreed (on behalf of the Applicants) to sign or to procure the signing of the Security Documents, in reliance on the representations made by Mr Greensill.

The above representations made by Mr Greensill were false, and were known by Mr Greensill to be false at the time at which they were made.”

20. LHA and MDR there identify the relief sought in the English Proceedings and, presumably, by way of a defence in these proceedings and contend that:

“The relief sought arises primarily from fraudulent misrepresentations made by GCUK, by its agent Mr Greensill, to LHA and Liberty OneSteel, via their agent Mr Gupta, in the series of meetings which led to the Security Documents purportedly being executed (Negotiation Meetings). The relief flowing from the misrepresentations would render the relief sought in [these] Proceedings unavailable.

Without prejudice to LHA and [MDR’s] right to call other witnesses, the participants at the Negotiation Meetings who can provide evidence of what occurred at them include: (a) [Mr] Gupta and (b) [Mr] Greensill.”

Affidavit and other evidence

21. LHA and MDR read the affidavit dated 2 October 2025 of their solicitor, Mr Atkins, which addressed largely uncontroversial matters. He noted that the Defendants were part of the “GFG Alliance” group of companies, referred to the nature of the business of those companies and referred to the execution of the Debenture and the SSD. He also referred to the governing law clause of the Debenture and the non-exclusive submission to the jurisdiction of the Courts of Queensland in the SSD. He noted that the English administration of GCUK had been recognised as a foreign main proceeding in Australia for the purposes of the Model Law, which is Schedule 1 to the Cross-Border Insolvency Act 2008 (Cth). Mr Atkins also referred to the commencement of the English Proceedings on 22 September 2025 and of these proceedings on 23 September 2025, but omitted reference to the previous correspondence by which GCUK had foreshadowed the commencement of these proceedings to which I referred above.

22. By an affidavit dated 27 October 2025, Mr Mufford, also a solicitor acting for the Defendants, similarly addressed largely uncontroversial matters. He also addressed the background of the relevant parties, the commencement of the English Proceedings by LHA and MDR, the overlap of the matters in dispute in the English Proceedings and these proceedings, the nature of the relief sought in the English Proceedings and the correspondence between the parties’ solicitors. He also referred to the execution of the Debenture, an earlier specific security deed on 13 February 2021 and the SSD on 1 March 2021. He gave evidence, on instructions from Mr Gupta, that the validity and enforceability of the Debenture, the first specific security deed and the SSD were disputed; and referred to persons who “may” be called by the Defendants to give evidence, who he contended were (with the exception of Mr Gupta) resident in England. He did not identify any relevant evidence that could be given by persons other than Mr Gupta, given the nature of the matters that LHA and MDR have raised in the English Proceedings and would presumably raise in defence of this proceeding. By a second affidavit dated 28 November 2025, Mr Mufford provided further information as to the possible location of persons who may be called by the Defendants as witnesses, addressed the position in the English Proceedings and corrected the inaccuracies in his first affidavit. By a third affidavit dated 13 January 2026 Mr Mufford corrected further inaccuracies in his first affidavit.

23. GCUK read the affidavit dated 9 November 2025 of Mr Simpson, who is joint administrator of GCUK. Mr Simpson there noted LHA and MDR had not then obtained the necessary permission to institute or continue the English Proceedings against GCUK under the Insolvency Act 1986 (UK), although I noted above that they subsequently sought that permission. He referred to the status of claims against third parties brought by LHA and MDR against UBS and GBAG in the English Proceedings, neither of which can presently proceed. He also addressed the position in respect of the share certificates that are in issue and noted the registration of relevant securities on the PPSR.

24. GCUK also read the affidavit dated 10 November 2025 of its solicitor, Mr Walter, who referred to the commencement of these proceedings and the English Proceedings. By a second affidavit dated 5 December 2025, Mr Walter addressed the correspondence between the parties concerning the English Proceedings, the timing for a hearing of a permission application in the English Proceedings, and referred to the records maintained by ASIC that indicate that Mr Gupta is a director of 43 Australian companies and has his residential address in New South Wales.

Whether the Court is a clearly inappropriate forum for the determination of these proceedings

25. As I noted above, LHA and MDR seek relief under UCPR r 12.11, which provides that the Court may make certain orders including, relevantly, an order declining to exercise jurisdiction in the proceedings and an order granting such other relief as the Court thinks appropriate. Mr Maiden initially submitted the proceedings should be stayed because this Court was a clearly inappropriate forum for their determination and made lengthy submissions addressed to that issue. The relief that LHA and MDR seek is arguably not consistent with that submission, where they seek only that the Court not exercise jurisdiction or stay this proceeding on an interim basis pending the determination of the English Proceedings, and implicitly accept that that the Court could properly exercise jurisdiction as to the balance of these proceedings after that occurs.

26. Mr Sulan (with whom Mr Anderson and Mr Monteith appear for GCUK) submitted, consistent with the case law and commentary which I note below, that LHA’s and MDR’s application for the Court to decline to exercise jurisdiction or stay the proceeding on an interim basis pending the outcome of the English Proceedings, should not be determined by reference to a “clearly inappropriate forum” test. I accept that submission, for the reasons noted below. I will nonetheless determine the merits of LHA’s and MDR’s submission that the Court is a clearly inappropriate forum for the determination of the dispute, since LHA and MDR pressed that submission.

27. I bear in mind the approach to the determination of this question as set out in the judgment of Deane J in Oceanic Sun Line Special Shipping Inc v Fay (1988) 165 CLR 197 at 247-248; [1988] HCA 32 (“Oceanic Sun Line”) and subsequently applied in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 (“Voth”). His Honour there observed that:

“it is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds. That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties. The reason that is so is that, once it is accepted that the adjectives “oppressive” and “vexatious” are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them, the continuation of proceedings in a tribunal which is a clearly inappropriate forum would, in the absence of exceptional circumstances being established by the plaintiff (cf Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 at 478 ), be oppressive or vexatious to such a defendant if there is some available and appropriate tribunal in another country. Admittedly, that approach to the “vexatious” and “oppressive” test is less stringent and less rigid than would have been accepted in the nineteenth century. Under it, the applicable test pursuant to traditional principles can, in the ordinary case, properly be seen as an “inappropriate forum” test. It cannot, however, properly be seen as a “more appropriate forum” test since the mere fact that a tribunal in some other country would be a more appropriate forum for the particular proceedings does not necessarily mean that the local court is a clearly inappropriate one.”

28. The parties both made submissions by reference to several relevant factors, as identified by Palmer J in Colosseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803 at [69] (“Colosseum”), and approved by Rees J in Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589 at [80], as follows:

“i) a consideration of the true nature and full extent of the issues involved in proceedings in the local court and in the foreign court;

ii) whether, in the light of that consideration, the foreign court has jurisdiction to deal with the same subject matter as is before the local court;

iii) the degree of connection which both proceedings share with the law of the foreign court and the law of the local court;

iv) where the relevant acts or omissions occurred;

v) where the parties reside and carry on business;

vi) whether local professional or other standards of care have a bearing on the legal quality of the relevant acts or transactions or the liability of the parties;

vii) where and how the damage was suffered;

viii) where the relevant evidence in the action is to be found;

ix) whether the application to the local court for a stay or dismissal has been made with reasonable promptness;

x) the stage which proceedings in the foreign court have reached in comparison with the stage of proceedings in the local court;

xi) the order in which the two sets of proceedings were instituted and the costs which have been incurred in each;

xii) whether each court recognises the orders and decrees of the other;

xiii) which court can provide more effectively for the complete resolution of the whole of the controversy between the parties;

xiv) that a party properly invoking the jurisdiction of the local court has a prima facie right to insist upon the exercise of that jurisdiction, so long as that prima facie right is not given undue emphasis;

xv) that considerations of comity and restraint should be taken into account where a defendant carries on business in a foreign country and the jurisdiction of the courts of that country would be recognised under local conflict rules;

xvi) the undesirability of allowing two independent actions involving the same question of liability to proceed contemporaneously in the courts of different countries;

xvii) whether the dominant purpose of a party in commencing proceedings in one jurisdiction or another is to prevent another party from pursuing remedies available in the courts of another country having jurisdiction …”

29. I have had regard to those factors, without treating them as any form of checklist that constrains the Court’s discretion. I have noted the issues involved in these proceedings and the English Proceedings above. In written submissions, Mr Maiden submitted that:

“This proceeding raises issues which are a subset of issues already raised by a proceeding in the High Court of England and Wales. Here, English administrators appointed to an English company seek declarations regarding the enforceability of securities governed by English and Queensland law; there, the ostensible grantors impugn those securities on the basis of oral representations largely made in England by an English resident to a resident of Dubai.”

30. However, as Mr Maiden ultimately accepted in oral submissions, the matters raised in this proceeding are not properly characterised as a “subset” of the issues raised in the English Proceedings. The converse position is likely correct. This proceeding is wider rather than narrower than the English Proceedings since GCUK here seeks to establish the enforceability of the securities under the PPSA; LHA and MDR reserve any defences to the enforceability of the securities that may be available to them under the PPSA; and those issues are not raised by LHA and MDR in and would not be determined by the English Proceedings. There is also no suggestion that LHA’s or MDR’s defence in this proceeding will be any narrower than the claims they have raised in the English Proceedings. As to the further submission that the alleged representations were made to a resident of Dubai, Mr Maiden rightly accepted in oral submissions that Mr Gupta is a resident of Australia as well as a resident of Dubai.

31. Mr Maiden also submits that:

“The English Court can deal must effectively with the complete resolution of the whole of the controversy between the parties, subject to the need for [LHA and MDR] to obtain permission to proceed. The NSW Court has no real connection to the disputes between the parties, and [GCUK] has brought only a part of the dispute between the parties before the NSW Court.”

32. I do not accept these submissions. First, where relief is sought in respect of security granted by an Australian company over shares held in Australian companies and the issues reserved by LHA and MDR as to the PPSA are not raised by them in the English Proceedings, then the Australian Court can more effectively deal with the complete resolution of the whole of the controversy between the parties. The Defendants implicitly recognise that matter, where they do not seek to dismiss but only temporarily stay these proceedings. I also do not accept the proposition that there is no relevant “connection” with the matters in dispute, where, at the risk of repetition of the obvious, LHA is an Australian company; the shares in issue are shares in Australian companies; and GCUK seeks relief under the PPSA*,* which LHA and MDR do not accept should be granted. I also do not accept that GCUK has brought only “part” of the dispute before this Court, where it raises all the matters necessary for its success, subject to any defence that LHA and MDR raise in these proceedings.

33. I now turn to the questions of jurisdiction; the degree of connection which both proceedings share with English and Australian law; where the relevant acts or omissions occurred; and where the parties reside and carry on business. Plainly, an Australian Court has jurisdiction to determine whether securities granted by, inter alia, an Australian company were induced by misrepresentation. By their Amended Points of Claim in respect of this application, LHA and MDR contend (APC [22]) that the United Kingdom was the “geographical nucleus” of the dispute by reason of several matters. They point to the location of the parties to the English Proceedings (APC [23]ff), although I have noted above that the claims against UBS and GBAG cannot proceed and the claims against GCUK cannot proceed unless permission is granted.

34. There is no suggestion that the English Court does not have jurisdiction to deal with the matters raised in the English Proceedings, which do not include any issues as to the application of the PPSA. Mr Maiden submits that the governing law of the Debenture is the law of England and Wales. Mr Sulan responds, and I accept, that LHA is not party to the Debenture and that cl 28.2 of the Debenture expressly preserves GCUK’s ability to take proceedings in any competent jurisdiction, which it has done in this Court. Mr Maiden also submits that the governing law of the SSD is the law of Queensland and that there is no “special connection” to the law of New South Wales. That matter does not advance LHA’s and MDR’s position, where an English Court is not in a better position to apply the law of Queensland than this Court and the securities are registered under Commonwealth legislation, the PPSA. Mr Maiden also submits that the SSD and the Debenture were negotiated as part of a suite of documents at several meetings (although Mr Gupta’s evidence in the permission application in the English Proceedings is not specific as to such meetings) and that the evidence going to the representations were misrepresentations made at those meetings will be “critical” to determination of the validity of the SSD and the Debenture. I assume that such evidence would be relevant to a defence of misrepresentation that may be raised by LHA and MDR in these proceedings, consistent with the contentions raised by them in the English Proceedings. Mr Maiden also points to connections between the proceedings and English law and to the fact that the relevant representations are alleged to have been made by Mr Greensill in England, or possibly from England to Dubai, although Mr Gupta’s evidence in the permission application in the English Proceedings also does not address his location when the alleged representations were made with any specificity.

35. Mr Maiden also submits that the English Proceedings involves a proprietary claim, and it is likely that an English Court would grant permission to bring that claim. I leave open the question whether a challenge to the enforceability of a security on grounds of, inter alia, misrepresentation, mistake or estoppel would be treated as a proprietary claim under English law, where Mr Maiden did not more than assert that position. It does not seem to me that it follows that the English Court would “likely” grant permission for the claim, where it would likely have regard to the issues of overlapping proceedings which have been addressed in this judgment. For completeness, I also recognise that LHA and MDR have joined UBS and GBAG to the English Proceedings. I give little weight to that matter where they do not seek any relief against those parties in the English Proceedings; and, as I noted above, they have also not applied for or obtained the leave to serve those entities outside the English jurisdiction or to lift the stay of proceedings against GBAG, which is in insolvency administration. In reply, Mr Maiden also submits that the English Proceedings are not a nullity, pending the grant of permission to pursue them against GCUK. I assume, without deciding, that is the case as a matter of English law. Nonetheless, the English Proceedings cannot advance unless and until LHA and MDR obtain permission to pursue them against GCUK, which will not be obtained for at least three months, until the end of April 2026 at the earliest.

36. Mr Sulan responds that:

“This Court’s jurisdiction has been regularly invoked. In exercising the power to control its own processes, this Court cannot be satisfied that it is desirable to stay these proceedings pending the determination of proceedings in a foreign Court which are stayed and may never proceed at all. The Defendants have not pointed to any authority that would support the grant of a temporary stay in these proceedings.”

37. Mr Sulan points out that GCUK seeks relief under the PPSA, and that it does so against an Australian company, under a security deed governed by Australian law, in respect of collateral comprising ordinary shares in two Australian companies; and that an aspect of the dispute concerns the validity of a security interest that is registered on the PPSR in Australia. Mr Sulan submits, and I accept, that the application of Australian law to the determination of those matters is a material consideration that weighs against the Court declining to exercise jurisdiction or staying the proceedings pending the determination of the English Proceedings.

38. I accept that there are significant links between the matters raised in these proceedings and Australia, including that LHA is an Australian company; GCUK seeks to enforce its security over shares in other Australian companies in reliance on securities that are registered under Australian legislation, the PPSA; GCUK relies on the SSD, which is governed by the law of an Australian state; and LHA’s and MDR’s defence relies on representations allegedly made to Mr Gupta, who is (as is now common ground) an Australian resident and is a director of many Australian companies. A further dispute has also now arisen between the parties, as to the status or priority of further securities granted by LHA to another company within the GFG Alliance Group at about the time these proceedings were commenced, which will likely also raise issues as to the application of the PPSA. There is no suggestion that local professional or other standards of care have a bearing on the legal quality of the relevant acts or transactions, or the liability of the parties.

39. I now turn to the question where the relevant evidence in the action is to be found. By their Amended Points of Claim in respect of this application, LHA and MDR contend (APC [30]) that:

“If there are other witnesses to the Negotiation Meetings, or who could give contemporaneous evidence of events proximate to the Negotiation Meetings and the Relevant Correspondence, it is more likely than not that those witnesses were and remain in the UK or Europe.

Any subpoenas to give evidence would likely need to be enforced in the UK.

GCUK’s relevant documents are, so far as the defendants are aware, located in the UK and any orders for disclosure would need to be enforced in the UK.”

40. The first and second of these propositions are speculative where the Amended Points of Claim, Mr Gupta’s witness statements and the affidavit evidence provide no basis to think there were witnesses to the asserted conversations between Mr Gupta and Mr Greensill and no basis to identify third parties who would need to be issued subpoenas, whether in England or elsewhere. The third point does not assist LHA or MDR, where an order for disclosure can be made, if appropriate, against GCUK in these proceedings.

41. Mr Maiden also places substantial weight on a submission that the relevant evidence is to be found in England. By their Amended Points of Claim in respect of this application, LHA and MDR initially contended (APC [17]) that both Mr Gupta and Mr Greensill resided outside Australia. As I noted above, Mr Maiden rightly abandoned that claim in oral submissions and accepted that, consistent with the information that LHA had provided to the Australian Securities & Investments Commission, Mr Gupta is an Australian resident. Mr Maiden also submitted that Mr Greensill is, or may be, resident in the United Kingdom, and that several other witnesses appear to reside and work in the United Kingdom. The latter submission turns on the proposition, which has not been established, that those persons are likely to be called as witnesses in the proceedings, where the evidence led by the Defendants goes no further than to suggest that they “may” be called and Mr Mufford does not seek to establish any basis for that possibility.

42. Mr Sulan responds that the case brought by LHA and MDR turns on oral representations alleged to have been made by Mr Greensill to Mr Gupta; and he emphasises that, as Mr Maiden now accepts, Mr Gupta is resident (or at least claims to be resident) in Australia. Mr Sulan also submits that the Court should not place weight on Mr Mufford’s “speculative evidence” that the Defendants “may seek” to call other witnesses, where they have not identified the evidence that any of those witnesses might give. It seems to me that, as LHA’s and MDR’s case is presently put, it is not apparent whether Mr Greensill would be called by either party and references to possible witnesses other than Mr Gupta are no more than speculation.

43. Turning now to documentary evidence, correspondence as to the security documents is already available to the parties and is addressed at length in Mr Muffor’s affidavits. Mr Maiden identified one item of correspondence (Ex J1, 690) on which LHA and MDR specifically relied to support their representational claim, namely an email dated 24 January 2021 from Mr Nasta of GFG Alliance to Mr Kennedy of GCUK and others, which recorded that:

“Further to your request, please find attached the relevant signatures released strictly on the basis that the security will not be registered.”

44. I accept that, as Mr Maiden points out, LHA and MDR may well seek to identify other correspondence relevant to that claim. Nevertheless, the substance of their claim, as presently articulated, is directed to oral representations made by Mr Greensill to Mr Gupta, and LDA and MDR have identified no reason to think that other documents exist that record those representations or will advance that claim. Mr Maiden also submits that documents held by GCUK will be held in the United Kingdom, but that is of little weight where GCUK invokes this Court’s jurisdiction, and a disclosure order may be made by this Court. LHA’s and MDR’s references to the need to subpoena parties in England were no more than speculative and there is no suggestion that LHA or MDR would be in a better position to subpoena parties outside the jurisdiction (including UBS and GBAG) in the English Proceedings than in these proceedings.

45. There was no suggestion that there was any unreasonable delay in LHA and MDR bringing this application. Both proceedings are at an early stage, but the fact that the English Proceedings which would not be granted until the end of April 2026 at the earliest, and may not be granted at all, favours the continuance of these proceedings. Mr Maiden submits that the order in which the two sets of proceedings were instituted is neutral. Both proceedings were commenced at about the same time, although it is plain that GCUK had foreshadowed the commencement of these proceedings prior to LHA’s and MDR’s commencement of the English Proceedings, and the costs incurred in both proceedings to date will be limited. There is no suggestion that any difficulty of enforcement would arise in respect of a decision of either Court.

46. Importantly, however, the English Court cannot resolve the whole of the dispute between the parties, unless LHA and MDR are wholly successful in the English Proceedings. As I noted above, GCUK here seeks relief under the PPSA; LHA and MDR reserve any defences to the enforceability of the securities that may be available to them under the PPSA; and that issue is not raised in and would not be determined by the English Proceedings. I also bear in mind that the case law indicates that GCUK, having invoked the jurisdiction of this Court has a prima facie right to insist upon the exercise of that jurisdiction, but I do not give that prima facie right undue emphasis; and I also recognise considerations of comity and restraint. Mr Maiden also points to the undesirability of allowing two actions involving the same question of liability to proceed contemporaneously in the Courts of different countries. At least at this point, two independent actions involving the same question are not proceeding contemporaneously in the two Courts since the English Proceedings cannot advance unless and until LHA and MDR obtain the necessary permission to pursue it against GCUK. That matter also does not indicate that this Court should stay these proceedings, where the English Court may ultimately decline to grant LDA and MDH permission to pursue the English Proceedings in any case and may be less likely to grant that permission (as Mr Maiden implicitly recognised) where all issues can be determined in this Court.

47. As to the last of the matters noted in Colosseum, GCUK did not submit that I should find that LHA’s and MDR’s dominant purpose in commencing the English Proceedings, after they were advised of GCUK’s intention to commence these proceedings, was to prevent GCUK from pursuing remedies available in this Court, or at least to delay its access to those remedies.

48. As Mr Maiden accepts, Deane J observed in Oceanic Sun Line that the onus lies on the defendant to satisfy a Court in which proceedings have been instituted that it is an inappropriate forum for their determination and that their continuation would be oppressive and vexatious to the defendant, and the power to stay proceedings on that basis should only be exercised in a clear case. It seems to me that there is here not a clear case that this Court is an inappropriate forum to determine the proceedings. First, these proceedings raise issues under the PPSA which will not be determined by the English Proceedings, so the English Proceedings will not finally resolve the dispute between the parties, which this Court can do. Second, it could not be said to be oppressive or vexatious to LHA or MDR that an Australian Court determine a claim (1) against LHA, an Australian company; (2) in relation to shares in Australian companies; (3) arising out of the SSD which is governed by the law of an Australian state: (4) where that claim relies on representations allegedly made to Mr Gupta, who (as is now common ground) is an Australian resident and is a director of many Australian companies; (5) LHA and MDR have reserved the prospect of raising defences under Australian legislation, the PPSA; (6) the English Proceedings cannot go forward without a grant of permission which would not be granted until, at the earliest, late April 2026, and may not be granted at all where the matters noted above would also be apparent to an English Court; (7) LHA and MDR appear to accept that, unless they are in future permitted to proceed in the English Proceedings, the matters in dispute should be determined in these proceedings; and (8) even if they are in future permitted to proceed in the English Proceedings, any remaining matters under the PPSA will likely need to be determined in these proceedings, at least unless LHA and MDR are wholly successful on the merits, as they accept by not seeking to dismiss these proceedings.

49. For these reasons, I am not satisfied that New South Wales would be an inappropriate, still less a “clearly inappropriate” forum for these proceedings. I am also not satisfied, for the reasons noted above, that the Court should decline to exercise jurisdiction or stay the proceedings on an interim basis. Mr Maiden, fairly, acknowledges that these proceedings would not be a clearly inappropriate forum for resolution of the disputes, at least if the permission application were finally determined against LHA and MDR in the English Proceedings, and that concession is properly made. As I noted above, I accept Mr Sulan’s submission that this is not the appropriate tests for an interim stay, and I have determined these matters only because LHA and MDR pressed the application on that basis. I now turn to the principles that are properly applicable to determining the application.

The approach in Sterling

50. Mr Sulan rightly points out that, where, as here, LHR and MDR seek only a temporary stay pending the determination of a foreign proceeding, the applicable test is not the “clearly inappropriate forum” test under Voth, but the principle stated by Lockhart J in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287; [1992] FCA 72 at 291 (“Sterling”), as summarised by Brereton J in Re Treadtel International Pty Ltd (2014) 104 ACSR 1; [2014] NSWSC 1406 at [12] as follows:

“Thus, on an application for a temporary stay, the question is not whether the proceedings are vexatious and oppressive. The power of the court to grant a temporary stay of this kind is an aspect of its general power to control its own proceedings. It is exercisable where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first. Its exercise is informed by the general principle that it is undesirable that two courts should determine the same dispute, and practical considerations based on commonsense and fairness guide which action should proceed first: [L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 33 FLR 170 at 177; Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346; Muller v Fencott (1981) 53 FLR 184 at 189; Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 193; Sterling Pharmaceuticals, 291; Bella Products Pty Ltd v Creative Designs International Ltd (2009) 258 ALR 538 at 543 [22]–[24]. A non-exhaustive list of relevant considerations was provided by Lockhart J in Sterling Pharmaceuticals, as follows (at 291):

• Which proceeding was commenced first;

• Whether the termination of one proceeding is likely to have a material effect on the other;

• The public interest;

• The undesirability of two courts competing to see which of them determines common facts first;

• Consideration of circumstances relating to witnesses;

• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted;

• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues;

• How far advanced the proceedings are in each court;

• The law should strive against permitting multiplicity of proceedings in relation to similar issues;

• Generally balancing the advantages and disadvantages to each party.”

51. That approach was approved by Mansfield and Foster JJ in Oswal v Burrup Fertilisers Pty Ltd (Recs and Mgrs apptd*)* (2011) 85 ACSR 531; [2011] FCAFC 117 at [30], by Stevenson J in Macquarie Bank Ltd v Juno Holdings Sarl [2015] NSWSC 919 at [18] and by Markovic J in Tameeka Group Pty Ltd v Landan Pty Ltd [2015] FCA 1218 at [20]-[21]; see also M Davies et al, Nygh’s Conflict of Laws in Australia, 11th ed, [8.53].

52. Mr Sulan submits that, where the stay of the English Proceedings against GCUK remains in effect, there are no pending foreign proceedings in which the dispute will be determined and that any practical consideration that might support the grant of an interim stay do not arise. He submits that the application to lift the stay in the English Proceedings does not change that analysis, where it was only filed by LHA and MDR on 27 November 2025, after the English Proceedings had been commenced, and has not been determined. I do not determine this application on so simple a basis. Mr Sulan also points out that GCUK seeks declaratory relief concerning a security interest created under a deed governed by Australian law which it contends has attached collateral and is enforceable within the meaning of s 19 of the PPSA. In reply, Mr Maiden accepted that, at least where that application will be heard before the determination of the permission application in the English Proceedings, the Sterling criteria now apply to the application. Mr Maiden also submits, and I accept, that those criteria do not require LHA or MDR to establish that this Court is a “clearly inappropriate forum” or that it would be “oppressive” or “vexatious” to continue these proceedings against them. Mr Sulan’s similarly recognises that the application of the Sterling criteria is a less rather than a more favourable position for GCUK.

53. There is plainly an overlap between the matters identified in Voth and those identified in Sterling, and I adopt, without repeating, my analysis of several of those matters above. I have held above that the question which proceedings were commenced first is of limited significance here, where they were commenced at about the same time, although GCUK had previously foreshadowed its intent to commence these proceedings. In reply, Mr Maiden submits that the stay of these proceedings is unlikely to have a material effect on the English Proceedings, although he points to GCUK’s acknowledgement that it would consider its position on the permission application if these proceedings were stayed. I have otherwise addressed the question of the effect of termination of one proceeding on the other above.

54. As to the public interest, Mr Maiden submits in reply that, if the English Proceedings were to determine that the Debenture and the SSD were valid, GCUK could seek to enforce them in this Court. That submission is at best incomplete, where Mr Maiden also makes clear that LHA and MDR may seek to raise other defences under the PPSA in this Court. It follows that LHA and MDR do not, in fact, accept that a determination of the English Proceedings in GCUK’s favour would allow GCUK to enforce the securities, and they accept that the English Proceedings would be final only if it determines matters in their favour and not if they are unsuccessful. Mr Maiden also submitted in reply that:

“Since the English Court can clearly determine all matters in genuine dispute between the parties (including who is entitled to benefit from the securities) and is more conveniently placed to procure documentary and oral evidence, there is public interest in conserving the resources of this Court to deal with other matters before it.”

However, the premise of this submission is falsified by the fact that, as noted above, LHA and MDR do not in fact accept that a determination of the English Proceedings that is adverse to them would determine all matters in dispute.

55. It seems to me that the public interest favours not declining jurisdiction in or staying the proceedings in this Court pending the determination of the English Proceedings, where all aspects of the dispute can be determined in these proceedings; (2) the issues under the PPSA reserved by LDA and MDR are not raised by them in the English proceedings and will not be determined in the English proceedings; and the proceedings in this Court will need to be determined if LHA and MDR are not granted permission to bring their claims against GCUK in the English Proceedings or fail in those claims.

56. In reply, Mr Maiden submits that it is undesirable for this Court to compete with the English Court to determine common facts first. As I have noted above, no such competition presently arises since the English Proceedings cannot go further until the permission application is determined; and, even if it did, it would not follow that this Court should necessarily decline to exercise its jurisdiction in favour of the English Proceedings, where the English Proceedings cannot resolve all matters in dispute between the parties for the reasons noted above.

57. I have addressed considerations relating to witnesses and the other factors noted in Sterling above. In reply, Mr Maiden submits that the preponderance of potential witnesses is most likely in England and is not in Australia. I am not persuaded of that submission, where it is not shown that any witnesses other than Mr Gupta, and possibly Mr Greensill, would lead evidence. In reply, Mr Maiden also submits that:

“Witnesses and production of documents are more likely compellable in England, or at least compellable without the need for expensive and time-consuming processes of international enforcement.”

58. I also do not accept that submission, for the reasons noted above, where it has not been shown that relevant documents, beyond those that are already held by the parties or would be available if disclosure is ordered, are likely to be in England, and the English Court would be in no better position than this Court so far as documents situated outside England are concerned.

59. The last of the matters noted in Sterling requires a balancing of the advantages and disadvantages to each party of the Court declining to exercise jurisdiction or staying the proceeding pending the determination of the English Proceedings. I here recognise that the English Proceedings cannot proceed unless and until permission is granted for the claims against GCUK and will at least be delayed until late April 2026 when that question is determined. By contrast, this Court could list the matter for final hearing from mid-May 2026 onward if the parties were then ready for hearing. Mr Sulan indicated that GCUK could be ready for hearing by that time; Mr Maiden submitted, at length, that LHA and MDR would not be ready for a hearing by that time; and I recognise that a hearing may possibly be delayed if GCUK seeks to join LCUK as party to the proceedings to challenge LHA’s grant of further securities to it at the time these proceedings were commenced. It seems to me that any advantage of declining jurisdiction or staying the proceedings as sought by LHA and MDR is speculative, where it largely turns on questions as to the need for witnesses beyond Mr Gupta and documents which are not established, and upon the prospect that the English Court would grant permission to pursue the English Proceedings where this Court can determine all relevant issues, including the issues as to the PPSA that LHA and MDR have not raised in the English Proceedings. On the other hand, the disadvantage of that course to GCUK is substantial, where it will deprive GCUK of an early hearing in these proceedings, at least by the second part of this year (if not as early as May 2026) in this Court, notwithstanding that the English Proceedings will likely not resolve all issues in dispute between the parties.

60. For these reasons, I am comfortably satisfied that, applying the approach in Sterling, I should not decline to exercise jurisdiction or stay the proceedings pending the determination of the English Proceedings, reaching the same result as would follow from the application of Voth in these circumstances*.*

Orders

61. I therefore order that the Interlocutory Process filed on 2 October 2025 by LHA and MDR be dismissed with costs. I will now hear the parties as to the orders necessary to bring these proceedings to a final hearing, at least in the second half of this year.

**********