Nature's Care Holdings Pty Ltd v Chen

FACTS

1. In 2018, after JIC and Tamar became majority shareholders, Nature's Care Group entered into a Syndicated Facility Agreement with Standard Chartered (Hong Kong) Ltd as Agent, Standard Chartered Bank as Security Agent and other Lenders. The documentation in respect of this facility included a Security Trust and Intercreditor Deed and General Security Deed, and was amended over time, as explained by Mr Hewer.
2. In addition, the shareholders entered into a Subscription and Shareholders' Agreement, which was also varied from time to time. In 2020, the shareholders also entered into a Shareholder Loan Agreement, by which the shareholders advanced funds to Nature's Care Holdings.
3. In February 2023, Nature's Care Manufacture employed Mr Chan as company secretary. In March 2023, Mr Chan was appointed as secretary of the Nature's Care Group companies. Whether Mr Chan's appointment required approval of the board was later the subject of dispute.

Default

1. In August 2023, the moneys advanced under the Syndicated Facility Agreement were due to be repaid. The facility was not repaid. The plaintiffs were in default. The Lenders agreed to take no action for varying periods of forbearance. On 29 August 2023, the Lenders extended the forbearance period until 11 September 2023. KordaMentha was retained by the Lenders to conduct an independent business review of the Nature's Care Group, including contingency planning in the event of the appointment of a receiver.
2. A board meeting was called for 5 September 2023. Board papers were circulated by Mr Chan. The solicitors for JIC and Tamar advised that their clients had not been informed of, and did not consent to Mr Chan's appointment as secretary; the validity of his appointment was challenged. In any event, the board meeting proceeded. The subject of Mr Chan's appointment was canvassed, as were efforts to refinance the Syndicated Facility Agreement. An obstacle appears to have been that the Lenders needed guarantees from all shareholders to refinance the facility, whilst the Wu family was not prepared to provide such a guarantee.
3. Following a discussion at the board meeting, Mr Niu was of the view that the prospects of being able to secure third-party external funding to refinance the facility were very low. Mr Niu understood from his enquiries of prospective lenders that they would require guarantees or cash collateral for the full amount of the new debt from shareholders. While JIC and Tamar were prepared to guarantee their portion of the new debt, they were unable to give guarantees for the Wu family's portion. Where JIC was a state-owned enterprise, Mr Niu understood that restrictions imposed by the Chinese Ministry of Finance prevented JIC giving a guarantee for a portion debt which exceeded its corresponding equity investment. The Wu family would not provide any credit support in relation to debt.
4. Also following the board meeting, the Wu family's solicitors suggested that Mr Chan's appointment as secretary be ratified at the next board meeting, where management were under the mistaken impression that his appointment did not require board approval. Mr Chan circulated proposed resolutions, both to appoint Ms Chen as Chief Executive Officer of Nature's Care Holdings and himself as secretary. The JIC and Tamar directors did not sign these resolutions.

Different strategies

1. The Lenders' solicitor proposed a further extension of the forbearance period on conditions, so that the borrowers could organise the commencement of a sale process for the Nature's Care Group. It would appear that the JIC and Tamar shareholders had a different view as to how the sale process should proceed, as compared with the Wu family. The Wu family did not agree with some of the conditions proposed by the Lenders and appear to have been interested in purchasing the business themselves.
2. Mr Niu said the board developed and agreed with the Lenders to progress a strategy under which the Lenders would appoint receivers and managers to the non-trading companies in the Nature's Care Group with a view to an eventual sale being executed by the receivers, without the value-destruction usually associated with such a process. The directors would instigate a series of management changes to protect the value of the business and resolve the position of conflict that arose from having prospective bidders also running the business on a day-to-day basis, including removing Ms Chen and Mr Wu from their management roles. The Senior Lenders would grant a longer-term standstill to the operating company, which was not subject to the receivership, to allow those changes to take effect. a sales advisor was also to be agreed and appointed, and the business stabilised and presented for sale.
3. The JIC and Tamar shareholders then expressed concern about a conflict of interest between the Wu family interests as potential purchasers and their obligations as fiduciaries to ensure that the business was sold for the best price. Perhaps prompted by this suggestion, on 13 October 2023, Ms Chen and Mr Wu resigned as directors of the Nature's Care Group companies.
4. Unrelatedly, on 22 December 2023, freezing orders were made in the Federal Court of Australia against Ms Chen, Mr Wu and others, on the application of the Deputy Commissioner of Taxation, on a without admissions basis. Ms Chen and Mr Wu were obliged to preserve unencumbered assets of some $200 million. The freezing order did not prohibit them from inter alia contributing debt or equity to, or directly acquiring debt or equity interests in, the Nature's Care Group.

Change in management

1. On 27 December 2023, KordaMentha partner, Ryan Rabbitt, was appointed as an independent director to the board of the Nature's Care Group of companies. Vincent Cheung was appointed as Chief Financial Officer. Hawk Liang was appointed as Chief Operating Officer.
2. The same day, AS Investment Vehicle was incorporated. Mr Wu was the sole director and secretary. His company, Aussie Source, was the sole shareholder. Aussie Source had 100 ordinary shares held by Mr Wu. Further shares were issued to Ms Chen, Alex Wu and Jack Wu (each for 100 ordinary shares) and to Mr Chan (one ordinary share).
3. On 28 December 2023, Mr Niu emailed Ms Chen and Mr Wu to advise that the board had resolved to terminate any role held by them, effective immediately. Further, the directors had determined to appoint new management to the business and to appoint a new independent director. Mr Niu also emailed Mr Chan to request that he immediately cease and desist from holding himself out as company secretary.
4. In reply, Mr Wu advised that Ms Chen and Jack Wu had been appointed as directors of the Nature's Care Group. Mr Wu also reinstated Ms Chen as Chief Executive Officer in accordance with the Shareholders Agreement. Mr Wu expressed concern that board members may have been engaged with the Lenders in advocating for a receivership "despite the presence of an offer for the acquisition of the senior debt … covering 100 cents in the dollar for 100% of the Senior Lender Debt."
5. On 29 December 2023, JIC and Tamar maintained that Ms Chen and Mr Wu's appointments had been terminated and that neither had authority to hold themselves out as the Chief Executive Officer or general manager respectively. The reinstatement of Ms Chen as Chief Executive Officer was said to be ineffective. The consultancy agreements attached to Mr Wu's previous email had not been put to the board for approval, nor previously provided and, in any event, were said to have been terminated.
6. On 1 January 2024, Mr Wu maintained that Ms Chen continued as Chief Executive Officer. Her removal was said to be part of a strategy to put the group into receivership where "there exists an offer to purchase 100% of the debt at par value, which could immediately avert potential insolvency." On 2 January 2024, Ms Chen issued a message to Nature's Care staff as "CEO & Managing Director", suggesting that recent changes may not be valid and she would continue to serve as Chief Executive Officer. (The defendants have since given undertakings not to make further representations along these lines.)
7. On 5 January 2024, JIC and Tamar wrote to the Lenders' solicitor, outlining the difference in approach of JIC and Tamar shareholders - who wanted a trade sale of the business in order to fully repay the debts - and the apparent approach of the Wu parties. JIC and Tamar asked that the Lenders appoint receivers and managers to two holding companies in the group in accordance with an earlier agreed "light-touch receivership" strategy.
8. On 9 January 2024, JIC and Tamar requested information from the Wu family in respect of the offer to acquire some or all of the senior secured debt. JIC and Tamar suggested that it was inappropriate for Ms Chen or Mr Wu to remain on the board or in management positions, where they continued to progress their personal interests in seeking to gain control of the group through the lenders' existing security rights. In response, the Wu family sought undertakings from JIC and Tamar not to take steps to appoint a receiver to the Nature's Care Group, where it was said that this would cause substantial and irreparable harm.
9. On 10 January 2024, Mr Wu ceased to be a director of AS Investment Vehicle or Aussie Source, replaced by Mr Chan. On 11 January 2024, Mr Wu notified the board of Nature's Care Group that Ms Chen and Jack Wu were removed as directors of the Nature's Care Group companies; Louis Chen was appointed instead.
10. On 12 January 2024, Mr Niu wrote to Ms Chen, Mr Wu and Mr Chan on behalf of Nature's Care Group, maintaining that Ms Chen and Mr Wu's positions had been terminated and Mr Chan held no valid position. Ms Chen and Mr Wu were said to be in a position of irreconcilable conflict between their personal interests and their statutory and fiduciary duties to Nature's Care Group as directors and officers. All were asked to return their laptops and keys, together with banking access details and passwords. JIC and Tamar's solicitor also followed up the Lenders' solicitor in respect of their request that the Lenders appoint receivers to two holding companies in the group in accordance with the previously agreed strategy. Information was also sought on the status of the Wu family's proposed acquisition of the debt.
11. On 14 January 2024, Mr Chan notified the Australian Securities & Investments Commission (ASIC) of Ms Chen and Jack Wu's resignation as directors of Nature's Care Group companies, with Louis Chen appointed as a director with effect from 11 January 2024. On 15 January 2024, Louis Chen notified ASIC that Mr Chan had ceased to be a secretary of the Nature's Care Group with effect from 28 December 2023. Mr Chan also became the sole shareholder of AS investment vehicle. Mr Niu also wrote to Mr Chan, requesting return of the corporate key for Nature's Care Group, but this was not provided.
12. At this juncture, the plaintiffs contend that the defendants, or their agents, instructed Nature's Care staff to call in sick, not respond to work calls or emails and, generally, not assist the new management. These allegations were addressed by way of undertakings.

Assignment of debt

1. On 16 January 2024, AS Investment Vehicle executed assignment agreements with nine Lenders. The assignments were completed on 17 January 2024, when AS Investment Vehicle also executed assignment agreements with two further lenders. Correspondence from the plaintiffs' solicitors to the Wu family solicitors, seeking details of any offer to buy the Senior Debt, went unanswered.
2. On 18 January 2024, completion of the "second tranche" of assignments was effected. The Wu family's solicitor advised JIC and Tamar that they had no entitlement to information in respect of the proposed purchase of the Senior Debt and declined to provide it.
3. On 19 January 2024, AS Investment Vehicle executed a further assignment agreement, which was also completed. AS Investment Vehicle then held 93% of the Senior Debt, being some $138 million of the $148.5 million facility. The Agent and Security Agent under the Syndicated Facility Agreement resigned. These proceedings were commenced.
4. Mr Niu said he is very concerned that, where Nature's Care Group is currently in default under the Syndicated Facility Agreement, the Wu family will enforce their rights against Nature's Care Group in a manner that is adverse to the interests of the group as a whole. I note that the inter partes correspondence is littered with allegations of conflict of interest in both directions.

Submissions

1. As to the serious question to be tried, the plaintiffs submitted that Ms Chen and Mr Wu were no longer appointed directors or authorised officers of Nature's Care Group but may be acting as shadow directors and officers, particularly in circumstances where they asserted contractual rights of direction and management. Ms Chen and Mr Wu owed fiduciary obligations to Nature's Care Group as directors and officers. Fiduciaries owe a duty to avoid conflicts and not to profit from their position as fiduciaries. By acquiring the Senior Debt, this was said to have placed Ms Chen and Mr Wu in a position of conflict of interest. They, as directors, are obliged to act in the best interests of Nature's Care Group: Re Cawley & Co (1889) 42 Ch D 209 at 233. An equitable duty of disclosure arises when a fiduciary uses their position to advance their own or a third party's interests: Meagher, Gummow and Lehane 5th ed (2015) at [5-400]. If a fiduciary acts to the detriment of the fiduciary, the fiduciary duty has been breached, and such breach is liable to be restrained by injunction: Meagher, Gummow and Lehane 5th ed (2015) at [5-400].
2. In addition, the plaintiffs submitted that Ms Chen and Mr Wu owed statutory duties to disclose any "material personal interest": Corporations Act 2001 (Cth) ('Corporations Act'), section 191. Ms Chen and Mr Wu were said to owe statutory duties as directors and officers under ss 180-184 of the Corporations Act, which may be enforced through an injunction under section 1324 of the Corporations Act.
3. The plaintiffs submitted that Ms Chen, Mr Wu and Mr Chan each came into possession of information in respect of the opportunity to acquire the Senior Debt whilst serving as officers of the company. Those rights were acquired by the third defendant, either in breach of Mr Chan's fiduciary duties as company secretary, to which Ms Chan and Mr Wu were knowing assistants or knowing recipients, or in breach of Ms Chen and Mr Wu's fiduciary duties, either in their capacity as directors or officers of the company. While Ms Chen and Mr Wu were not directors at the time, they held themselves out to be officers of the company. There was said to be a serious issue to be tried as to whether Ms Chen and Mr Wu had acted in breach of fiduciary duty, either directly or through their agent or an entity under their control, being the third defendant.
4. As to the balance of convenience, the plaintiffs submitted that the interim injunction should be ordered to maintain the status quo and enable final relief to be determined without the possibility of purported enforcement of the Syndicated Facility Agreement against Nature's Care Group without notice; rights under the Syndicated Facility Agreement were presently able to be exercised without notice, as the facility was in default. The Lenders had extensive powers, including to encumber or sell the assets of Nature's Care Group, or to appoint a Security Agent with enforcement powers under the General Security Deed. The existing Agent had resigned. A new agent, whose identity was unknown, could be appointed to exercise such powers without notice to the company. The fact that Ms Chen and Mr Wu's assets were the subject of the freezing order was said to provide additional motivation to exercise such rights, which would have a deleterious effect on the Nature's Care Group.
5. The defendants submitted that no fiduciary obligation arose, as Ms Chen and Mr Wu were not directors at the time. The defendants conceded that, whilst Ms Chen had disputed the validity of the termination of her role as chief executive officer, she now accepted that termination. Ms Chen and Mr Wu no longer contended that they were still employees or consultants to Nature's Care Group. Where the plaintiffs contended that Ms Chen and Mr Wu were not in fact employees at the time, it was difficult to see how they could owe fiduciary duties. Nor was it obvious how steps taken to acquire the debt could amount to a breach of fiduciary duty, where the plaintiffs were in default under the Syndicated Loan Facility and the majority shareholders had themselves been pressing the lenders to appoint a receiver. Nor could it be said that the acquisition of the debt by one of the companies' shareholders was to the disadvantage of the companies, where the facility was in default and the lenders were able to put in a receiver at any time. In the circumstances, the plaintiffs had not identified a serious question to be tried with a sufficient colour of right sought to be vindicated by final relief.
6. The defendants submitted that damages were an adequate remedy. Further, where the defendants had recently injected over $100 million into Nature's Care Group, it was difficult to see why they had any interest in damaging its business. There was no evidence of what damage would be suffered by Nature's Care Group if one lender, as opposed to another, sought to enforce its rights. The defendants referred to the principles relevant to an application to restrain an exercise of a mortgagee's powers, referred to in Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161.
7. Further, the defendants submitted that any undertaking as to damages should be given by JIC and Tamar, rather than by the plaintiffs, where the benefit of the injunctive relief accrued to those shareholders: Targus Group (UK) v Targus Australia (No 2) [2018] NSWSC 1322 at [197]-[202] (McDougall J). Where the plaintiffs had been in default under the loan and were clearly not in a position to refinance or repay the loan, there was concern that the plaintiffs may not be able to compensate the defendants for any damages they may suffer. In reply, the plaintiffs submitted that, where their claim was based on fiduciary duties owed by the defendants to the plaintiffs, the usual undertaking was appropriate.

PRINCIPLES

1. The test in Australian law as to whether an interlocutory injunction should be granted is set out in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 by Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed) at 81 [65] (quoting with approval Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1): The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
2. The first question does not require a plaintiff to demonstrate that it is more probable than not that at trial it will succeed. Rather, it is sufficient to show a sufficient likelihood of success to justify the preservation of the status quo pending trial: Australian Broadcasting Corporation v O'Neil (2006) 227 CLR 57 at 81 [65]. How strong the probability needs to be "depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks": Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 at [87].
3. Relatedly, an interlocutory injunction can only be granted in aid of final relief and a cause of action must be claimed in the proceedings in which the application for an injunction is sought. As Gleeson CJ observed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, "If the respondent cannot show sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears": at 218. The plaintiff must also show that they are likely to suffer injury for which damages are not an adequate remedy: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [19].
4. The principles in respect of the fiduciary obligations of a corporation's directors and officers are uncontentious. Drawing on my judgment in City Garden Australia Pty Ltd (in administration) v Dai [2023] NSWSC 1498, directors and officers of a corporation have a duty to act in good faith and for a proper purpose under section 181(1) of the Corporations Act, which provides: Good faith-directors and other officers (1) A director or other officer of a corporation must exercise their powers and discharge their duties: (a) in good faith in the best interests of the corporation; and (b) for a proper purpose. (2) A person who is involved in a contravention of subsection (1) contravenes this subsection.
5. Section 182(1) of the Corporations Act also provides: Use of position-directors, other officers and employees (1) A director, secretary, other officer or employee of a corporation must not improperly use their position to: (a) gain an advantage for themselves or someone else; or (b) cause detriment to the corporation. Similarly, section 183 provides that a person who obtains information because they are a director of a corporation must not improperly use that information to gain an advantage for themselves or someone else or cause detriment to the corporation.
6. Fiduciary duties operate alongside the statutory duties in sections 180 to 183 of the Corporations Act: section 185. The director, as fiduciary, has a duty not to promote their personal interests by making or pursuing a gain in circumstances where there was a conflict or a real or substantial possibility of a conflict between those personal interests and the interests of the company (the "no conflict" rule). Directors have a duty not to obtain any unauthorised benefits or profits from their positions as directors (the "no profit" rule): Chan v Zacharia (1984) 154 CLR 178 at 198-199 (per Deane J, Brennan and Dawson JJ agreeing); Clay v Clay (2001) 202 CLR 410; [2001] HCA 9 at [56] (per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ); Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165; [2001] HCA 31; Breen v Williams (1996) 186 CLR 71; [1996] HCA 57. A fiduciary may overcome the operation of the "no profit" rule by making a full and frank disclosure of their material interest in the outcome of the relationship subject to that duty and seeking the active consent of the other party: Parker v McKenna (1874) LR 10 Ch App 96.

CONSIDERATION

1. Turning to whether the plaintiffs have made out a prima facie case, it is relevant to assess this question in the circumstances in which this application has been brought, commenced before the duty judge on Friday 19 January 2024, and now determined on Tuesday 23 January 2024. It is fair to say that there has been a flurry of affidavits and documents in the intervening period as, it will appear, the plaintiffs have become more appraised of recent events, in particular, the third defendant's acquisition of the Lender's rights under the Syndicated Facility Agreement. As a consequence, the state of the evidence is, with no disrespect intended, slightly chaotic. However, it may be unsurprising on an urgent application that evidence may be in general terms and contain some assertion and speculation, sometimes without supporting documents: Siemens Gamesa Renewable Energy Pty Ltd v Bulgana Windfarm Pty Ltd [2019] VSCA 318 at [108].
2. As presently framed in a Further Amended Summons filed today, the plaintiffs seek final relief against the defendants in the form of final injunctive relief from inter alia, effectively, enforcing their rights against the plaintiffs under the Syndicated Facility Agreement. The plaintiffs have yet to file a Commercial List Statement pleading the material facts and causes of action said to give rise to an entitlement to such relief. As articulated by the plaintiffs' senior counsel during the hearing yesterday and today, the plaintiffs will contend that Ms Chen and Mr Wu owed fiduciary duties to Nature's Care Group. As a consequence, the defendants were not unconstrained in the steps they were taking to seek to gain control of the Nature's Care Group, where they held the roles of chief executive officer and general manager at the time. Although the plaintiffs terminated Ms Chen's appointment as the chief executive officer, Ms Chen continued to hold herself out as the Chief Executive Officer; that role plainly carried fiduciary duties. Using information which Ms Chen obtained as a fiduciary, she acquired rights adverse to the interest of the Nature's Care Group.
3. The central allegations which are put is that in acquiring the Lenders' rights in these circumstances, there has been a breach of fiduciary duty by the defendants in circumstances where, and various times, Ms Chen and Mr Wu were directors of the Nature's Care Group companies, or perhaps de facto directors, and at various times held positions, including the position of chief executive officer in the case of Ms Chen and general manager in the case of Mr Wu.
4. Whether, in fact, Ms Chen and Mr Wu held these positions when the debt facilities were acquired is itself a matter of controversy. The plaintiffs sought to terminate Ms Chen and Mr Wu's roles on or about 28 December 2023. Ms Chen and Mr Wu have variously maintained that those terminations were invalid. This afternoon, the defendants accepted that the terminations were valid, but that concession may be tinged with self-interest, installing distance between Ms Chen, Mr Wu, and the Nature's Care Group companies at the time of contentious events.
5. It is apparent from the material before the Court that Ms Chen and Mr Wu have had important roles in the Nature's Care Group of companies since, likely, the inception of the business some years ago. From time to time, they have been appointed, or resigned, as directors and officers of Nature's Care Group. Ms Chen resigned as a director (again) shortly before the acquisition of the debt facility. Whether the director appointed in her place, Louis Chen, is someone who could be considered to act at her or Mr Wu's direction, is not known. But in circumstances where Ms Chen, in particular, maintained that she held the role of Chief Executive Officer at the relevant time, notwithstanding the plaintiffs' efforts to terminate her retainer, I am satisfied there is a serious issue to be tried as to whether the defendants acquired the Lenders' rights in breach of their fiduciary duties, including where the third defendant appears to be a nominee company. The director and shareholder, Mr Chan, may also be someone who may be considered to act at the direction of Ms Chen and Mr Wu. I accept, of course, that the defendants may put on evidence to the contrary.
6. As to the defendants' reliance on Inglis v Commonwealth Trading Bank, as a general rule, the Court will not interfere to deprive the mortgagee of the benefit of its security "except upon terms that an equivalent safeguard is provided to him, by means of the plaintiff bringing in an amount sufficient to meet what is claimed by the mortgagee to be due": Inglis at 164. Reliance on Inglis is somewhat hypothetical, where AS Investment Vehicle has yet to exercise any of the Lenders' rights and the defendants were silent as to their intentions. I draw no inferences. There may also be a question as to whether the third defendant's ability to exercise such rights ought to be restrained where the plaintiffs contend that these rights were acquired as a consequence of the defendants' breach of the fiduciary obligations, as opposed to a bona fide third party lender as was the case in Inglis.
7. Turning to the balance of convenience, the Syndicated Facility Agreement has been in default since August 2023. Since then, the Lenders have issued various standstill letters. Mr Niu has sought to refinance that facility or, failing refinance, to embark upon a sale process. The Wu family interests appear to have taken a different approach, or wish to have a different outcome, than JIC/Tamar. These different positions have been advanced from time to time since August 2023. The evidence does not suggest any particular urgency in achieving either outcome. There is no evidence of any statutory demands issued or any suggestion that the appointment of liquidator is imminent or that there are any crippling cashflow concerns of the business that may warrant immediate steps being taken.
8. That said, the facility is presently in default, which gives the Lenders a wide range of rights which can be exercised without notice. In the absence of any evidence that the Lenders' rights will be seriously damaged if they are not permitted to exercise such rights for a short period, I am satisfied that the balance of convenience favours granting an interim injunction until this matter can be considered in more detail by a judge with more time than the duty judge and with the benefit of a proper pleading from the plaintiffs and evidence from the defendants, so that a full picture may be obtained. I am also not prepared today to decide whether the usual undertaking as to damages should be given by the plaintiffs or by JIC and Tamar; this issue can also be determined by the judge before whom this application comes for further consideration.

ORDERS

1. For these reasons, I make the following orders: 1. Grant leave to the plaintiffs to file in Court a Further Amended Summons, which is initialled, dated today and placed with the papers. 2. Abridge time to serve the Further Amended Summons on the third defendant until 5pm today by email to philchan@asinvest.com.au. 3. Grant leave to the plaintiffs to file in Court an affidavit of Stephanie Huts dated 23 January 2024 which is initialled, dated today and placed with the papers. 4. On the usual undertaking as to damages given by the plaintiffs' senior counsel, order that the defendants be restrained until 5pm on 5 February 2024 from enforcing, or procuring the enforcement of, any rights that the Lender, the Agent or the Security Agent may have against the plaintiffs under the Syndicated Facility Agreement dated 6 August 2018 (as amended). 5. In respect of the third defendant: 1. direct the plaintiffs to provide a copy of these orders to the third defendant by 8.00 pm today. 2. grant liberty to third defendant to apply in respect of the interim injunction on one day's notice. 1. Direct the plaintiffs to file and serve a Commercial List Statement by 5.00 pm on 25 January 2024. 2. Direct the defendants to file and serve any evidence in respect of the application for interlocutory relief by 5.00 pm on 31 January 2024. 3. Direct the plaintiffs to file and serve any evidence in reply by 5.00 pm on 2 February 2024. 4. Tentatively list the plaintiffs' application for interlocutory relief before Stevenson J on 5 February 2024. 5. NOTE that the associate to Rees J will confirm the listing as soon as possible. 6. NOTE that the undertakings given by the first and second defendants in Order 6 on 22 January 2024 are extended until 5.00 pm on 5 February 2024, varied such that the first and second defendants may perform the actions described in Order 6 (a) to (e) with the plaintiffs' consent given in writing by their solicitors. 7. Reserve all question of costs. 8. Vacate the hearing on 25 January 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 January 2024