Yusuf Abdulla Yusuf Akbar Alireza v. Richard Samuel Elman

HCA 1381/2017

[2026] HKCFI 4060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1381 OF 2017

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J U D G M E N T

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A.  Introduction

1.The disputes between the plaintiff (“P” or “Mr Alireza”) and the 2^nd defendant (“D2” or “Mr Elman”) relate to a deed of agreement dated 20 November 2011 (the “Deed of Agreement”[1]). It was linked to the remuneration package of P’s employment which he shortly thereafter commenced with Noble Group Limited (“NGL” or “Noble Group”). P says that D2 was under the Deed of Agreement liable but failed to transfer to him in total 1.4% (in 2 tranches of 1% (the “1^st Tranche”) and 0.4% (the “2^nd Tranche”), and collectively the “2 Tranches”) of the issued share capital in NGL (“NGL Shares” or “Noble Shares”). He seeks, inter alia specific performance of the Deed of Agreement, alternatively damages in lieu (which he has subsequently in his witness statement indicated that he would opt for), or damages for misrepresentations. D2 denies liability. His primary case is that the Deed of Agreement was never executed and/or delivered as a deed and is therefore a nullity, and/or of no effect, and/or is invalid, and/or is in any event unenforceable. He also denies any misrepresentation.

2.Fleet Overseas (New Zealand) Limited (“D1” or “Fleet Overseas”) was originally named and sued as the 1^st defendant. The proceedings against it have since been discontinued. It was not represented during the trial.

3.This is the trial of those disputes. Mr Simon Westbrook SC leading Mr Toby Brown appeared for P. Mr Charles Manzoni SC leading Mr Justin Ho and Ms Celeste Chan appeared for D2.

B.  The parties

4.P was born in Egypt and grew up in Bahrain. He moved to the United States of America in 1988 to study International Economics and Relations at Georgetown University. Between 16 April 2012 and 30 November 2016, he was, through a service company of NGL by the name of Noble Executive Services Limited (“Noble Executive”), employed as the Chief Executive Officer (“CEO”) and Executive Director of NGL (the “Employment”). Prior to that, he was a senior executive with Goldman Sachs, which he first joined in 1992.

5.D1 is a company incorporated in New Zealand. Mr William Malcolm Patterson has been its director since 16 September 2015.

6.D2 was the founder of NGL. He was its Executive Chairman until May 2017.

7.NGL was at times material to this action a company incorporated in Bermuda and listed on the Singapore Stock Exchange (the “SGX”). It ceased trading on SGX on 16 November 2018, and was wound up by the Bermudian Court on 8 February 2019.

8.D2’s ownership or control of shares in NGL is in dispute:

(a)  It is P’s case that at the material time, D2 retained control over more than 20% of NGL’s shares. P uses the term “Controlled NGL Shares” to denote those shares. I adopt that same term just for ease of reference and presentation;

(b)  There is a trust called Chater Holding Trust (“CHT”) which precise nature and purpose of establishment is in dispute. In the Agreed Dramatis Personae, CHT is described as “A trust (purportedly, on P’s case) established by D2 for the benefit of D2’s family (but not D2 himself)”. D2’s case is that CHT is a trust he established in 1989 for the benefit of his 3 children, that he had never been its beneficiary, that the principal assets which he had transferred to it included shares in NGL, that he was not the legal owner of shares in NGL as alleged by P, that D1 was at the material times its trustee, and that D2 could not procure D1 to transfer any quantity of NGL’s shares to P as alleged by P or at all.

9.D2 and NGL had at different stages the following officers or employees:

(a)  Mr Christopher Pratt (“Mr Pratt”), Mr David Eldon (“Mr Eldon”) and Mr Paul Jeremy Brough (“Mr Brough”), who were members of the NGL board at the material time. Mr Brough had also been its former Chairman;

(b)  Mr Ricardo Leiman and Mr Toby Brown, who were at different times 2 of NGL’s former CEOs and board members;

(c)  Mr Jeffry Alam (“Mr Alam”), who was the Group General Counsel for NGL at the material time; and

(d)  Ms Edwina Pik Nai Chan (“Ms Edwina Chan”), who was D2’s secretary. She had an email address at NGL. Whilst D2 had his own email address, he often sent and received emails via Ms Edwina Chan’s email address.

10.Parties’ solicitors at different stages were/are:

(a)  P’s solicitors throughout have been Messrs. Gall (“Gall”). Ms Emily Duncan (“Ms Duncan”) was one of the partners of the firm;

(b)  D1’s solicitors, until discontinuation of the proceedings against D1, had been Messrs. Deacons (“Deacons”);

(c)  In respect of D2, Messrs. Reed Smith Richards Butler LLP (“RSRB”) were his former solicitors. His current solicitors are Messrs. MinterEllison LLP (“MinterEllison”).

C.  The Deed of Agreement

11.I set out in this section the relevant features and terms of the Deed of Agreement.

12.Its very first line reads “DEED OF AGREEMENT is made on the [20] date of [11] 2011”. The day and month in square brackets have been inserted by hand. The “0” of the “20” looks like it was written over something.

13.It is stated to be between D1, D2 and P. The addresses of D1 and D2 are not inserted, though there are 2 square brackets intended for them. P’s address is specified.

14.The 3 paragraphs of recitals next follow (“Recital (A)” to “Recital (C)”) read as follows:

(A)  Fleet Overseas is the legal owner of [number] of fully paid shares in Noble Group Limited (the “Noble Group”), listed on the Singapore Stock Exchange (SES: N21.SI) (the “Noble Shares”) which represents [X]% of Noble Group’s issued share capital (the “Issued Noble Shares”) as on the date of execution of this Deed.

(B)  Mr. Elman is the non-executive chairman of the Noble Group and has a [ ] interest in the Noble Shares as on the date of execution of this Deed.

(C)  Mr. Elman and Mr. Alireza have reached an agreement regarding the transfer of a number of the Noble Shares from Fleet Overseas to Mr. Alireza subject to certain conditions being met.

15.The following clauses are relevant:

1.  TRANSFER OF THE NOBLE SHARES

1.1   This Deed is made in consideration of Mr. Alireza entering into an employment agreement with Noble Executive Services Limited (“Noble Executive”) dated [1 January 2012] (the “Employment Contract”) and commencing employment thereunder as Chief Executive Officer and an Executive Director of the Noble Group (the “Employment”) [on or about 16 April 2012].

1.2   Mr. Elman undertakes and promises to procure and to do all things necessary to transfer Noble Shares held by Fleet Overseas to Mr. Alireza and to make payments to Mr. Alireza in accordance with the terms of this Deed.

1.3   Fleet Overseas agrees to make the transfer of Noble Shares in accordance with its obligations under this Deed.

2. TRANSFER OF 1% SHAREHOLDING

2.1   Provided that Mr. Alireza remains in the Employment on 2 January 2015, Mr. Elman shall procure and do all things necessary for Fleet Overseas to transfer and Fleet Overseas agrees to transfer to Mr. Alireza as soon as practicable and no later than 30 days from 2 January 2015, a number of fully-paid Noble Shares equal to 1% of the Issued Noble Shares as on the date of the execution of this Deed for nil consideration (the “1% Shareholding”).

2.2   Without prejudice to Clause 2.1, in the event that the Employment is terminated by Noble Executive for any reason other than for gross misconduct on the part of Mr. Alireza before 2 January 2015, Mr. Elman shall procure and do all things necessary as soon as practicable and no later than 30 days from the date that the Employment is terminated to transfer from Fleet Overseas and Fleet Overseas shall transfer the 1% Shareholding to Mr. Alireza for nil consideration.

3   TRANSFER OF THE ADDITIONAL 0.5% SHAREHOLDING

3.1   Mr. Elman shall procure and do all things necessary to transfer from Fleet Overseas and Fleet Overseas shall transfer to Mr. Alireza as soon as practicable and no later than 30 days from 2 January 2017 an additional number of fully-paid Noble Shares equal to 0.5% of the Issued Noble Shares as on 2 January 2017 for nil consideration provided that the following conditions are satisfied, namely:

3.1.1  Mr. Alireza remains in the Employment on 2 January 2017; and

3.1.2  the volume weighted average price (“VWAP”) of one (1) Noble Share as on 2 January 2017 is twice (or more) than Singapore $1.45.

3.2   Without prejudice to Clause 3.1, in the event that Noble Executive terminates the Employment for any reason other than gross misconduct on the part of Mr. Alireza after 1 January 2016 and as a consequence Mr. Alireza is not in the Employment on 2 January 2017, Mr. Elman shall procure and shall do all things necessary to transfer to Mr. Alireza an additional number of fully-paid Noble Shares equal to 0.4% of the Issued Noble Shares as on the date that the Employment is terminated.

…

5   WARRANTIES

5.1   Mr. Elman and Fleet Overseas hereby warrant, represent and undertake to Mr. Alireza as follows (the “Warranties”):

(a)   any and all of the Noble Shares to be transferred to Mr. Alireza under this Deed are duly authorised, validly issued and outstanding, and fully paid and non-assessable;

(b)   any and all of the Noble Shares to be transferred to Mr. Alireza under this Deed are not encumbered by any lien, charge, mortgage, option or right of pre-emption or right of first refusal or other interests of any other third parties whatsoever;

(c)   Fleet Overseas has good title to and together with Mr. Elman or alone has the power and authority to transfer the agreed amount of the Noble Shares to Mr. Alireza in accordance with this Deed;

(d)   except for this Deed, there are no outstanding options or other rights, encumbrances or charges granted by the Mr. Elman, Fleet Overseas or any third parties with respect to any of the Noble Shares to be transferred to Mr. Alireza under this Deed;

(e)   The transfer of the Noble Shares to Mr. Alireza under this Deed shall not:

(i)   conflict with or result in a violation or breach of any of the terms, conditions or provisions of the Memorandum and Articles of Association of the Noble Group; or

(ii)  conflict with or result in a violation or breach of any term or provision of any law or order of any administration or regulatory bodies applicable to Mr. Elman, Fleet Overseas, Noble Group or any of their respective assets and properties.

5.2   Each of the Warranties shall be given as at the date of signing this Deed and shall be deemed to have been repeated thereafter up to and including any date of the transfer of the Noble Shares to Mr. Alireza specified in this Deed. Each of the Warranties shall be construed as a separate and independent warranty and (save where expressly provided to the contrary) shall not be limited or restricted by reference to or inference from any other term of this Deed.

5.3   The Warranties in this Clause shall survive the dates of the transfer of the Noble Shares specified in this Deed to Mr. Alireza and the rights and remedies of Mr. Alireza in respect of any breach of any of the Warranties shall continue to subsist after and notwithstanding the completion of the share transfer of the Noble Shares to Mr. Alireza under this Deed.

6   TERMINATION

6.1   Notwithstanding the termination of the Employment Contract, Mr. Alireza’s rights shall survive in accordance with the terms of this Deed.

…

9   AMENDMENT

This Deed may not be amended unless such amendment is in writing and shall have been executed by all the Parties or their duly authorized representatives.

…

11  ASSIGNMENT AND BEST ENDEVOURS

…

11.2   Each of the Parties shall execute all necessary documents and do all other things as shall be reasonably necessary in order to give effect to the matters set out in this Deed. Without prejudice to the generality of the foregoing, Mr. Elman and Fleet Overseas shall execute all documents required by Mr. Alireza to perfect its title to the Noble Shares.

…

15   LAW AND DISPUTE RESOLUTION

15.1   This Deed shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. Each of the parties hereto irrevocably agrees that the courts of the Hong Kong shall have exclusive jurisdiction to hear and determine any suit, action or proceedings and to settle any dispute, which may arise out of or in connection with this Deed and, for such purposes, irrevocably submits to the jurisdiction of such courts.

16.There are execution pages and execution spaces with pre-typed words:

(a)  Clause 15.3 is the last clause of the Deed of Agreement, on page 6;

(b)  The execution pages start on page 6 immediately after Clause 15.3, with the following pre-typed clause:

IN WITNESS whereof the Parties have executed this Deed the day and year first aforewritten.

(c)  The execution space reserved for D1 then follows (bottom quarter of page 6):

(i)  There are the following pre-typed words, with execution space to their right:

SIGNED, SEALED AND DELIVERED BY	)
For and on behalf of	)
FLEET OVERSEAS (NEW ZEALAND) LIMITED	)
	)
In the presence of	)

(ii)  There is what appears to be a signature immediately underneath the words “New Zealand”. It is not specified whose signature it is. There is no company seal. There is no other signature in the execution space to the right. There is no particular or signature of any witness;

(d)  The execution spaces reserved for D2 and P are on page 7;

(e)  In relation to D2:

(i)  There are the following pre-typed words, with execution space to their right:

SIGNED, SEALED AND DELIVERED BY	)
RICHARD SAMUEL ELMAN	)
	)
In the presence of	)

(ii)  There is what appears to be a signature over the word “DELIVERED”. There is no other signature in the execution space. There is no particular or signature of any witness;

(f)  In relation to P:

(i)  There are the following pre-typed words, with execution space to their right:

SIGNED, SEALED AND DELIVERED BY	)
YUSUF ABDULLA YUSUF AKBAR ALIREZA	)
	)
In the presence of	)

(ii)  There is a signature in the execution space;

(iii)  After the words “In the presence of”, the words “Emily Susan Duncan Hong Kong” have been inserted by hand, with a signature in the execution space to their right.

D.  NGL’s Annual Reports

17.It is convenient to introduce here NGL’s 2010 Annual Report (“NGL 2010 AR”). A note therein (“Note 1”) features heavily in D2’s defence.

18.At page 77 of the NGL 2010 AR[2], the interests in securities of NGL’s directors are set out, as follows:

As at 21 January 2011, the directors who held office as at 31 December 2010 had the following interests in the securities of the Company:

Number of shares of HK$0.25 each held:

Name of director	Notes	Direct interest	Deemed  interest
[D2]	1	-	1,431,493,352
…	…	-	…
…	…	-	…
Milton M. Au	4	19,202,561	-
…	…	…	-
…	…	…	-

19.Notes 1 and 4 read as follows:

1.  Mr. Richard Samuel Elman is deemed to have an interest in an aggregate of 1,431,493,352 shares. These relate to shares which are held by Noble Holdings Limited (“NHL”) or which NHL is deemed to have an interest in. NHL’s aggregate interest in 1,431,493,352 shares comprises (a) 1,414,545,125 shares held by NHL; and (b) 16,948,227 shares held by NHL’s wholly-owned subsidiary, Temple Trading Asia Limited (“TTAL”). NHL is a company registered in Bermuda and TTAL is a company incorporated in Hong Kong. NHL is beneficially wholly-owned by a discretionary trust, the beneficiaries of which include the children of Mr. Elman but not Mr. Elman himself. Fleet Overseas (New Zealand) Limited, a company incorporated in New Zealand, is the trustee of the discretionary trust.

4.  These shares are registered in the name of nominees. During the year, no share option was exercised by Mr. Milton M. Au. As at 31 December 2010, the number of outstanding share options granted to Mr. Au was 386,361 (as adjusted as a result of the bonus issue of 6 bonus shares for every 11 shares on 21 May 2010).

20.Note 1 is the important and relevant one. Note 4 is referred to principally to contrast its wording with that of Note 1.

21.In gist, D2 relies on Note 1 and avers that the matters stated therein were matters of public record, such that P knew or ought to have known that (1) D1 was not the legal owner of the Controlled NGL Shares, (2) D2 could not procure D1 to transfer any quantity of Noble Group Shares, and (3) D1 did not hold shares in NGL on behalf of or subject to the direction of D2. I will come back further to the relevance of Note 1 later.

22.Also relevant is NGL’s Annual Report of 2005 (“NGL 2005 AR”):

(a)  It was referred to by Mr Westbrook during his cross-examination of D2. It was marked exhibit P-1;

(b)  The corporate statement therein is dated 23 February 2006. D2 was the CEO then;

(c)  At p.39 thereof, directors’ interests in share capital are set out. D2 is stated to have a deemed interest in 908,918,670 shares. That is explained by note 1 (“Note 1/AR 2005”), in the following terms:

The registered and beneficial owner of 905,494,920 shares is Noble Temple Trading Inc. (“NTTI”). NTTI is a company incorporated in Liberia and is wholly-owned by Noble Holdings Inc. (“NHI”), which is also a company incorporated in Liberia. NHI is, in turn, beneficially wholly-owned by Fleet Overseas (New Zealand) Limited (“Fleet”), a company incorporated in New Zealand. Fleet is the trustee of a discretionary trust, the beneficiaries of which include the spouse and children of Mr. Elman, except Mr. Elman himself. 3,423,750 shares are held in the name of a nominee.

E.  The current set of pleadings

23.The current set of pleadings comprises:

(a)  P’s Re-Amended Statement of Claim of 23 November 2022[3] (“RASOC”);

(b)  D2’s Re-Amended Defence of 20 December 2022 (“D2/RA-Def”)[4];

(c)  P’s Amended Reply dated 27 November 2019 (“A-Reply”)[5];

(d)  P’s 5 sets of answers to D2’s requests for further and better particulars (“P/F&B#1” to “P/F&B#5”); and

(e)  P and D2’s respective responses to notices to admit facts (“P/Admitted Facts” and “D2/Admitted Facts”).

F.  Parties’ respective pleaded cases

24.I have briefly introduced parties’ respective cases above. I give more details here.

25.P’s case is based on contract and, alternatively, misrepresentation:

(a)  On contract:

(i)  He pleads and refers to the Deed of Agreement. He then pleads as follows;

(ii)  He entered into an employment agreement with Noble Executive dated 1 January 2012, and commenced the Employment on about 16 April 2012. He remained so employed until he was given 6 months’ notice of termination on about 26 May 2016. The notice took effect on 30 November 2016. Hence, he remained in Employment on 2 January 2015, the Employment was terminated after 1 January 2016 for reasons other than his gross misconduct, and as a consequence he was no longer in Employment on 2 January 2017;

(iii)  Clauses 2.1 and 3.2 of the Deed of Agreement were therefore engaged and triggered;

(iv)  D2 was liable to deliver to him the 2 Tranches. D2 has failed to do so;

(b)  On misrepresentation:

(i)  P’s pleaded case is as follows;

(ii)  Prior to signing the Deed of Agreement, D2 made the following representations to P (§§1 to 2 of the RASOC):

(1)  D1 was the legal owner of certain fully-paid shares in NGL;

(2)  D2 was in a position to procure D1 to transfer the agreed quantities of shares set out in the Deed of Agreement, as and when the time came to do so;

(3)  D1 held all the said Noble Shares on behalf of and subject to the direction of D2, who was at all material times the Executive Chairman of NGL;

(iii)  By signing the Deed of Agreement, D2 made further representations and warranties to P, either expressly or by necessary implication (§§2A to 2B of the RASOC):

(1)  the aforesaid representations (Recital (A) and Clauses 1.2 and 1.3 as pinpointed by Mr Westbrook in his written opening);

(2)  the warranties contained in Clause 5 of the Deed of Agreement; and that

(3)  D2 had the necessary authority to sign for and on behalf of D1 so as to enter into valid and binding legal obligations on its behalf;

(iv)  P points to the Defences and evidence filed by D1 and D2[6], which suggest falsity of those representations (§§28 to 30 of the RASOC);

(v)  The representations were made fraudulently, recklessly, or alternatively negligently;

(vi)  D2 is liable to P for damages;

(c)  P hence claims:

(i)  For each of the 2 Tranches:

(1)  specific performance of the Deed of Agreement, in the form of delivery of the 1^st and 2^nd Tranches, which P avers amount to 63,887,170 and 52,283,276 fully-paid Noble Shares respectively (§§16 and 21 of the RASOC, and §§(A) and (E) of the Prayer);

(2)  damages for late delivery (§§17 and 22 of the RASOC, and §§(B) and (F) of the Prayer);

(3)  alternatively, damages in lieu, which P quantifies at HKD 402,278,854 and HKD 47,623,900 respectively (§§18 and 23 of the RASOC, and §§(C) and (G) of the Prayer);

(4)  further or in the alternative, damages to be assessed for the lost value of the share dividends and rights issue in 2016 (the latter for the 1^st Tranche only) (§§19 and 24 of the RASOC, and §§(D) and (H) of the Prayer);

(5)  I record that despite the Prayer, Mr Westbrook in the course of his oral closing confirmed that P will seek only damages in lieu, in terms of §§(C) and (G) of the Prayer;

(ii)  Damages for misrepresentation similarly quantified as the damages in lieu (§32 of the RASOC, and §(L) of the Prayer).

26.In respect of D2’s pleaded case:

(a)  His pleaded case is summarised at §3 of the D2/RA-Def, that:

In summary:

(1)   [D2’s] primary case is that the purported Deed of Agreement was never executed and/or delivered as a deed and is therefore a nullity and/or of no effect and/or is invalid and/or is in any event unenforceable. [P] therefore has no claim in respect of either the [1^st Tranche] or the [2^nd Tranche].[7]

(2)   If contrary to [D2’s] primary case the purported Deed of Agreement is enforceable any breach by [D2] of any obligation in respect of the [1^st Tranche] could only have arisen after the time for performance which was 6 February 2017, alternatively 31 December 2016. And in the event of a breach by [D2], damages must be assessed on this basis.

(3)   If contrary to [D2’s] primary case the purported Deed of Agreement is enforceable, [D2] was under no obligations and/or committed no breach of any obligation in respect of the [2^nd Tranche] because [P’s] Employment was not terminated by Noble Executive, as required for any entitlement to the [2^nd Tranche] to arise. The Employment was in fact terminated by [P’s] resignation.[8]

(4)   If contrary to the aforesaid, [D2] is found to have committed a breach of their obligations in respect of the [2^nd Tranche], such breach did not occur until 6 February 2017, alternatively until a reasonable time after 2 January 2017, i.e. 2 February 2017, alternatively 31 December 2016. Any damages must be assessed on this basis.

(5)   [D2] did not make the representations alleged in the [RASOC]. The true facts in respect of the matters alleged to have been represented by [D2] were matters of public record which were known or ought to have been known to [P] as a senior and highly experienced investment banker whose employer at the material time (Goldman Sachs International and/or Goldman Sachs Asia) had previously undertaken investment banking work for the Noble Group. That the purported Deed contained fundamental errors of fact is reflective of its status as a rough draft prepared without reference to [D2] before any or adequate due diligence was undertaken and which was never intended to create binding obligations between [P] and [D2].

(b)  I have introduced Note 1 above. D2’s reliance upon the same can be gleaned from the following paragraphs of the D2/RA-Def:

4.  Paragraphs 1, 2, 2A and 2B are denied. It is specifically denied [D2] made the representations alleged. It is averred that:

(1)  Between 16 December 2003 and 23 June 2017, [D1] was trustee of the Chater Holding Trust, a trust established by [D2] in 1989 for the benefit of his family.

(2)  At all material times, the Noble Group was a limited company incorporated in Bermuda whose shares were listed on the Singapore Stock Exchange.

(3)  At all material times,

(a)  Noble Group’s status as a limited liability company whose shares were listed on the Singapore Stock Exchange,

(b)  [D1’s] status as Trustee of the Chater Holding Trust and

(c)  [D2’s] relationship with [D1] and Chater Holding Trust

were matters of public record inter alia having been disclosed in the Noble Group’s Annual Reports from 2007, and materially, in the Noble Group’s Annual Report for 20l0 which was dated and published on or around 28 February 2011.

Particulars

(i)   Note 1 at page 77 of the 2010 Noble Group Annual Report dated 28 February 2011 states … [contents of which are pleaded]

(4)  That by reason of the matters pleaded in paragraph 4(3) above, [P] knew or ought to have known that:

(a)  [D1] was not the legal owner of shares in the Noble Group as alleged;

(b)  [D2] could not procure [D1] to transfer any quantity of shares in the Noble Group to [P] whether as alleged or at all;

(c)  [D1] did not hold shares in the Noble Group on behalf of or subject to the direction of [D2] whether as alleged or at all.

(5)  By reason of the matters in paragraphs 4(1) to 4(3) above, the preambles and associated warranties incorporated in the purported Deed and referred to in Paragraph 2A:

(a)  were materially wrong in fact;

(b)  were so incorporated by [P] and/or [P’s] lawyers on the instructions of [P] without the involvement of, or consultation with [D2]; and

(c)  were so incorporated before any or adequate due diligence was undertaken by [P].

(6)  With regard to Paragraph 2B, it is denied [D2] signed the purported Deed of Agreement. In the premises, it is denied any representations were made by [D2] in this regard whether as alleged or at all. [D2] further repeats the matters in paragraphs 4(1) to 4(5) above.

G.  3 case management matters

27.Having explained what the case is about, I can now record 3 case management matters which this Court dealt with and ruled on, the first 2 in the course of the first day of the trial, and the third one on the morning of the third day.

G.1.  D2’s summons of 27 August 2025 (the “VCF Summons”)

28.On 27 August 2025, with only 2 clear working days before commencement of the trial, D2 filed the VCF Summons and sought thereby leave for Mr Brough to give evidence via Video Conference Facilities (“VCF”) from Vancouver, Canada.

29.The application was supported by the 2^nd affirmation of Mr Alexander David Morrison (“Morrison/Aff2”). Mr Morrison is the senior partner of MinterEllison. Mr Brough himself filed no affirmation in support.

30.P opposed the same.

31.I heard Mr Ho for D2, who developed the application further via oral submissions. I also heard Mr Westbrook.

32.I had considered all the cases cited to me, which included, on the undesirability of solicitors filing on instructions evidence beyond the affirmants’ personal knowledge, Yahori Limited v Panagiotis Petropoulos (HCA 230/2015, 2 June 2016); on considerations relevant to the lateness of the application, Tao, Soh Ngun v HSBC International Trustee Limited [2018] HKCFI 2543 and Taishin International Bank Co Ltd v QFI Limited [2020] HKCFI 938; and specifically on the principles and considerations relevant to the application to receive evidence via VCF, Seto Sha Li v Lai Jin Tong [2021] HKCFI 3561 §§2-5, Sun Legend Investments Limited v Ho Yuk Wah David [2008] 4 HKLRD 239, Re Nobility School Limited [2020] HKCFI 891, and Imperial Pacific International (CNMI), LLC v Chan Chi Hung [2025] HKCFI 1512.

33.Having heard parties, and for the following reasons which I gave in court, I refused the VCF Summons:

(a)  The need to make the application was not raised during the pre-trial review;

(b)  The application was filed extremely late;

(c)  Taishin International Bank does not assist D2. That case in my view rather casts D2’s application in a bad light. In that case, the application was made during COVID time. The summons was nonetheless issued 1 month before commencement of the trial (§5(1)). Given the unpredictability of the pandemic and the quarantine policies, it was only still closer to trial before parties and the court would be in a position to reasonably assess the severity of the risks and the difficulties involved. Deputy Judge MK Liu agreed that whilst there had been delay in the defendant taking out the application, the outbreak was unexpected and unforeseeable, and that COVID-19 was very new even to scientists (§8(1) and (2));

(d)  In the present case, in Morrison/Aff2, no explanation is given at all for the lateness;

(e)  The majority of the contents of Morrison/Aff2 are background and submissions. What are provided as the reasons for the application are in §§12-14, in the following words:

12.  I am informed by Mr Brough that while he stands ready and willing to give evidence on oath in this matter, by reason of his family circumstances as explained below he will be in Vancouver, Canada, over the period fixed for the trial of this case.

13.  I am advised by Mr Brough and verily believe that he has a special needs son, who finds Hong Kong an extremely stressful environment. To support his son’s well-being, Mr Brough takes regular trips to a calmer, more natural environment. For this purpose, Mr Brough maintains a second home in Okanagan Valley, Vancouver, Canada where his son prospers and has a well-established support group to assist his well-being.

14.  Mr Brough’s present circumstances are such that he needs to take his son on a trip of this nature imminently and will be in the proximity of Vancouver, with his family during the trial.

(f)  In fact, and strictly speaking, only the 2-lined §14 sets out the reasons in support;

(g)  To start with, those facts are beyond Mr Morrison’s personal knowledge. He states only what he had been told;

(h)  At §17 of Morrison/Aff2, Mr Morrison says “Mr Brough has seen the final draft of this affirmation and has confirmed its accuracy to me”;

(i)  No reason has been given as to why, despite having the time to read and confirm Morrison/Aff2, Mr Brough does not himself swear an affidavit in support;

(j)  All the above apart, the reasons provided are sparse, and lack essential details – matters like what the “present circumstances” were, what in clearer term that “need” was, what had caused that “need” to have arisen “imminently”, when it was first perceived that that “need” would prevent Mr Brough from remaining in Hong Kong to give evidence, when Mr Brough left Hong Kong[9], when he would be back, whether consideration has been given to seek arrangement so as to accommodate him, bearing in mind the fact that the trial was set down for 2 weeks. None of these have been addressed;

(k)  Mr Brough’s evidence is said to be “very narrow in scope”. But with respect, that is off the point. Mr Brough’s intended evidence goes towards the Resignation Defence. The Resignation Defence is put forward as a complete defence to the 2^nd Tranche. More specifically, Mr Brough’s intended evidence relates to the meeting on 27 May 2016[10] (the “27 May Morning Meeting”). D2’s case is that P tendered his resignation during that meeting. D2 says that as any obligation to transfer the 2^nd Tranche would in any event arise only upon the termination of the Employment, given P’s resignation, no such obligation had arisen;

(l)  But D2 himself was not in attendance during that meeting. In his first witness statement (“D2/WS#1”), at §60, he only says that “I understand [P] tendered his resignation on 27 May 2016 in a meeting with NGL Board members [Mr Pratt], [Mr Brough], and [Mr Eldon].” Mr Pratt and Mr Eldon are not going to be called;

(m)  In his written submissions, Mr Manzoni submits that Mr Brough’s evidence “relates solely to the 0.4% in dispute”. But according to P’s RASOC, the quantum of damages arising from the 2^nd Tranche is nonetheless close to HKD 50M;

(n)  Mr Brough’s evidence is hence important in 2 senses: He is the only witness from the board who D2 is proposing to call; and if he is to be believed, his evidence would establish what is put forward as a complete defence to P’s claim in respect of the 2^nd Tranche;

(o)  Mr Ho, who developed the application further orally, submitted that this Court should have all the substantive evidence before me, and should not deprive D2 of the evidence of Mr Brough. But if D2’s case were to be run without Mr Brough’s evidence, it would unfortunately be the result of D2 not making sure that the evidence that he had wanted to adduce was to be adduced in manners governed by the prevailing rules and procedures;

(p)  I agree with Anthony Chan J’s (as he then was) observations in Re Nobility. Trials are to take place in court. That is the starting point. The solemnity of court proceedings is important. Sound reason is required to justify any exception. This is particularly so when the evidence concerned is not unimportant, and is beyond purely factual matter with no issue on credibility;

(q)  Whether to allow a witness to give evidence via VCF is a case management decision within the discretion of the court, to be exercised having regard to all the circumstances of the case;

(r)  For all the reasons set out above, I was of the view that no sound reason has been established to justify the exception being sought;

(s)  I however specifically informed parties that it was the VCF Summons which I refused. I was not disallowing Mr Brough to attend and testify;

(t)  I ordered that costs of and occasioned by the VCF Summons be to P in any event, with certificate for 2 counsel for the avoidance of doubt. I recorded that 45 minutes of court time had been used towards that application.

G.2.  D2’s intended use of bundle C14

34.The matter which I dealt with and ruled on in the course of the first day of the trial concerned an additional Bundle C14 (“C14”).

35.On 26 August 2025, D2 filed and served C14. It contained 15 items (“Item 214” to “Item 228”, collectively the “New Items”).

36.In their written submissions filed in support, counsel for D2 submitted that:

Bundle C14 contains materials which relate solely to credit that D2 intends to rely upon for cross-examination. These documents were provided to P pre-trial as a matter of fairness rather than obligation. However, since P has expressed his objection, to further assist the court, D2 sets out his position below as to why the proper legal position is that no application need (or indeed can) be taken out.

They submitted that the New Items are all publicly available information which relate solely to P’s credit, that it is trite that a witness can be cross-examined as to credit, that discovery does not encompass and will not be granted on matters which relate solely to credit rather than on the pleaded issues, and that evidence needs not be admitted to be used for cross-examination on credibility. They submitted therefore that it was entirely proper for D2 to include the New Items in C14 as a matter of case management.

37.Mr Westbrook objected to their intended use. On the issue of cross-examination on collateral issues, he referred to this Court’s earlier decision in Re the Estate of Chow Yei Ching [2024] HKCFI 887.

38.Mr Ho supplemented their written submissions orally. He submitted that apart from Item 223, all other items related to the circumstances in which P left Goldman Sachs, and his remuneration package while employed by it.

39.I noted that D2’s team had not made clear in their written submissions what parts of the New Items D2 intended to use, and for what specific purposes. I hence stood the matter down for about 2 hours so that D2 could make that clear in writing. In my view, such written clarifications would be important in 2 ways: (1) as the basis for this Court to properly consider whether D2 should be permitted to refer to and rely on the New Items, and (2) if D2 was to be permitted to do so, as the check to make sure that they would not be used for purposes outwith the stated purposes.

40.In the afternoon when the proceedings resumed, Mr Ho handed up a table entitled “Schedule of References Relied on in Bundle C14” (the “C14 Schedule”). The C14 Schedule in 12 rows made references to 7 of the 15 New Items. Mr Ho confirmed that D2 no longer intended to pursue the rest.

41.Having heard counsel, I did not permit D2 to refer to the New Items. Below were the reasons I gave in court.

42.The New Items, on the basis of the purposes of the intended uses, can be divided into 3 general categories: 

(a)  The first category was Item 223:

(i)  Item 223 was described as “Historical share price of Glencore Plc obtained from the London Stock Exchange webpage on 24 August 2025”;

(ii)  Mr Ho informed this Court that Item 223 was intended to be used to challenge P on the strategy of shorting Glencore Shares which he says at §114 of his first witness statement (“P/WS#1”) that he would have put in place had he been given the 1^st Tranche. What P says in that paragraph is as follows:

I would also like to state my position if the 1% shares had been delivered on time (or at all). As I have explained above, this was by far the most important element of my financial compensation for joining and working for Noble. As a highly experienced investment banker, I can say without doubt that if the shares had ever been delivered, I would have hedged this very significant shareholding, probably by a combination of methods. Firstly, I would have checked with my lawyers whether there were any trading restrictions or reporting obligations according to the rules of the SGX if I, as CEO of Noble, were to trade call and put options on Noble shares. If I could, I would have sold a call option and then used that to fund a put option, which would have limited any downside price movement in Noble’s share price. The other strategy I would have put in place was shorting Glencore shares on the London stock exchange. In my view Glencore was the best comparable stock to Noble as it was also a large publicly traded commodities giant with a heavy exposure to coal, which by then I could see was a problem area for Noble. If I had hedged in this way, I estimate that would have more than covered any loss associated with a decline in the Noble share price. However, I could not put this strategy into effect, without first having received the Noble shares I was due. My actual loss therefore from Mr Elman’s failure to deliver the shares is their value on the original due date of delivery (1 February 2015) which I could and would have hedged to protect their value at that time, if only they had been delivered on time as per the Deed of Agreement.

(iii)  The intended use of Item 223 clearly would go beyond credit. It ought to have been disclosed. Most likely, expert directions might even be necessary. It had not been disclosed until 26 August 2025. Allowing its late production and use would be prejudicial to P. I did not permit its inclusion in C14, nor its use during P’s cross-examination;

(b)  The second category comprised rows 1 to 7, and rows 11 to 12 of the C14 Schedule:

(i)  The purpose was to, with reference to the documents specified in the C14 Schedule, make serious allegations against P on matters relating to his activities while under the employ of Goldman Sachs. Those activities had no connection with the Deed of Agreement that this case is concerned with. Towards the end of his oral submissions, Mr Ho said that the intention was to suggest to P that he was an unscrupulous businessman who wanted to make as much money as possible;

(ii)  The documents in support are mostly (1) selected passages and exhibits from an investigation by a US Senate Permanent Subcommittee on the reasons for the financial crisis back in 2008. That had no bearing on the facts of the present case. We did not even have a full copy of the report; and (2) selected references of the submissions made by the losing party against Goldman Sachs in a legal action in England;

(iii)  I referred to §§33 and 34 of Lam PJ’s observations in HKSAR v Ng Fan Ying (2021) 24 HKCFAR 428, which clearly point against any use of the New Items:

33.  Recently, the Judicial Committee of the Privy Council examined the common law principles governing cross-examination of a witness as to credit in Clarke v Trinidad and Tobago.  Lord Lloyd-Jones succinctly summed up the position as follows at [40]:

At common law, therefore, the judge had a discretion to permit cross-examination as to credit. In exercising that discretion he was required to have regard to whether such questions would seriously affect the jury’s view of the credibility of the witness, to whether the misconduct relied upon had a solid foundation, to the fairness to the witness of permitting such cross-examination and to whether such cross-examination would be a distraction from the real issues in the case. An appellate court may not interfere with the exercise of such a discretion unless it is clearly wrong or wrong in principle.

34.  The need for having a solid foundation for an imputation of misconduct was explained in Persad v Trinidad and Tobago which was cited at [39] of Clarke v Trinidad and Tobago:

Behind all this is the necessity of securing a fair trial for the accused person consistently with fairness to a witness. It is not fair for a witness to be assailed with unproven allegations of misconduct or with mere suspicions of past malpractice. Nor is it acceptable for the time of the court to be taken up with matters extrinsic to the case in hand nor for the jury to be distracted from the issue before them by inquiries into uncertain and unresolved issues about the earlier conduct of a witness. The investigation of a witness’s reliability in the course of cross-examination must be kept within bounds. It cannot be allowed to degenerate into a ranging and speculative inquiry into any or all of the occasions on which the witness has given evidence in the past.

(c)  The third category comprised rows 8-10:

(i)  They related to certain news articles;

(ii)  The purpose of their use was to demonstrate that Goldman Sachs was at the relevant time entering into a cost-cutting exercise by sacking a record-number of partners;

(iii)  Mr Ho was not suggesting that P was about to be sacked by Goldman Sachs. Those articles, apart from the use of some very oblique languages, do not talk about any sacking;

(iv)  Those articles simply could not support the purpose for which they were intended to be used.

43.All the above problems were on top of the lateness of the production of C14.

44.For the above reasons, I did not permit D2 to refer to the New Items. I ordered that the costs of and occasioned by the application be P’s costs in any event, with certificate for 2 counsel, again for the avoidance of doubt. I recorded that after resolution of the VCF Summons, the balance of the first day of the trial was spent on the matter.

G.3.  D2’s application to interpose Mr Brough

45.In the course of Mr Manzoni’s opening submissions, upon this Court’s request for clarification, Mr Manzoni informed this Court that D2’s side had been in contact with Mr Brough for him to come back to Hong Kong to testify. Mr Manzoni stated that at that stage, the position had not been confirmed, but that if Mr Brough were to attend to testify, the window for him doing so could be small, and might involve interposing him out of order. I directed that in the eventuality of that being envisaged, prompt fore-warning to P should be given.

46.By letter faxed by MinterEllison to Gall on the late afternoon of 2 September 2025, MinterEllison informed Gall that Mr Brough would return to Hong Kong to testify, and would be available to do so on the morning of 4 September.

47.On the third morning of the trial, P was ready to commence his testimony. Before P doing so, Mr Manzoni updated the Court on the position of Mr Brough, and applied to interpose out of order.

48.Mr Westbrook objected.

49.Having heard counsel, I allowed D2’s application. I gave reasons, along the following lines:

(a)  Whether to allow D2’s application to interpose Mr Brough out of order was a case management issue which I had to make with all the circumstances in mind;

(b)  Mr Brough was the only witness from the board who could give direct evidence on what happened during the 27 May Morning Meeting[11]. His evidence, as I have observed when ruling upon the VCF Summons, if accepted, could substantiate a full defence in respect of the 2^nd Tranche. His evidence was clearly important. I could see the tension between parties;

(c)  I appreciated Mr Westbrook’s submissions on the lack of reasons as to why Mr Brough could only be in Hong Kong on 4 September 2025. But albeit without full particulars, Mr Morrison had provided the broad reason for Mr Brough’s absence from Hong Kong;

(d)  Having balanced all factors, I was prepared to accommodate Mr Brough, not because of what Mr Manzoni told me about Mr Brough’s seniority, but because of the need for ensuring overall fairness to both sides and the trial as a whole;

(e)  The option was therefore whether to interpose Mr Brough in the middle of P’s evidence, or to adjourn for the rest of the third day. Interposing Mr Brough in the middle of P’s evidence would in my view be clearly unsatisfactory, both to P, and also to the cross-examiner with all the distractions associated with the interposing;

(f)  The only viable option in my view was to adjourn for the rest of the third day;

(g)  That need for fairness which had led this Court thus far to inclining towards adjourning also suggested that the costs wasted by the adjournment should be to P in any event, and I so ordered. The adjournment is through no fault of P’s, which also meant that he could only rejoin his family one day later;

(h)  I hence ordered that the proceedings be adjourned for the rest of the third day, and that Mr Brough be interposed first thing on the fourth day before commencement of P’s evidence. The costs of and occasioned by the adjournment shall be to P in any event, with certificate for 2 counsel for the avoidance of doubt.

H.  Witnesses

50.P has called 2 witnesses. They are:

(a)  P himself, who has given:

(i)  2 witness statements dated 18 December 2021 (i.e. P/WS#1 referred to above) and 20 April 2022 (“P/WS#2”);

(ii)  2 affidavits filed for the purpose of discovery (“P/Aff2” and “P/Aff3”), which are referred to in his witness statements; and

(iii)  a set of his answers to interrogatories (“P/Interrogatories”);

(b)  His wife, Mrs Dina Alireza (“Mrs Alireza”), who has given 1 witness statement dated 29 April 2022 (“DA/WS”).

51.In respect of D2:

(a)  D2 himself testified. He has given 2 witness statements of 21 December 2021 (i.e. D2/WS#1 referred to above) and 11 May 2022 (“D2/WS#2”);

(b)  As I have recorded above, Mr Brough was interposed on the fourth day of the trial. He has given 1 witness statement dated 20 December 2021 (“PB/WS”).

52.All witnesses are on facts. No expert has been called.

I.  The factual matrix

53.It is useful to summarise here the contemporaneous correspondence and conduct between and of the parties. They are either not disputed, or are undisputable. They are important for the purpose of considering the witnesses’ credibility and reliability. They also form an integral part of the factual matrix against which the issue of intention to create legal relation should be considered.

54.The first documented pre-contractual discussion was an email dated 20 September 2011 from P to D2[12]. He expressed honour to be considered as the CEO of NGL. He said that he was hoping to get from the role an entrepreneurial opportunity. He stated that the “key for me in terms of delivering long term commitment and success is ownership.”  He stated further that:

From a big picture perspective my aspirations would be to have accumulated a 5% ownership stake in the company if it achieves a 20b valuation and a 10% stake if it reaches a 40b valuation. This will require yourself and other shareholders to be diluted but at levels that would be rewarding to everyone. One would need to achieve this via three mechanisms. 1)ownership stake granted upfront that would vest in 5 years which I would suggest should be between 1-2%. 2)otm[13] options granted upfront and on an annual basis based on levels of performance that allow me to increase my stake as the company performs 3)annual performance driven compensation that again is linked to the annual performance of the company.

I am assuming based on our conversations that this is probably more than what you were thinking but it’s consistent with how I want to position this opportunity.

55.On 30 September 2011, D2 emailed[14] to P a one-page document with the heading “FOR DISCUSSION” (the “For Discussion Document”). It set out the following points:

1. Using Base Date as contract signing date.

2. RSE[15] to give 1% of his holding FOC[16], on joining to vest on 2^nd anniversary provided share price not less than base +15%.

2A. On each anniversary, RSE to give 5% in stock or cash of the difference between base and the VWAP of the market last week closing price in December.

3. Noble to give not less than:

A. 30 million options on Base Date; and

B. 20 million on anniversary of Base Date each year for 4 years.

Value on each anniversary 3 day VWAP prior to anniversary date.

4. Noble to pay 2.0pct on NPAT each year in March the following year. 50% cash and 50% stock, which vest 3 and 5 years.

5. If employee leaves options forfeited. If Company triggers leaving, options will vest on Due Date.

5A. Subject to Option Rules attached.

6. RSE to maintain not less than 15% for minimum 2 years.

7. Base salary US$1.5 plus car and club, but to include housing.

56.By email of 1 October 2011[17], P responded to those points. In particular, in respect of point 2, P responded:

Point 2: RSE 1 %. the requirement of 15% increase of share price i do not think should apply. While not a significant increase over the 2 years i have no real control of positioning of the company over a short period of time and also hard for me to know what the market will look like. The 1% immediately locks me into the firm and insures that i feel the pain on the way down. I am happy to have this vest in 3 years rather than 2. In addition i would like to ask for another 1% to be vested on the 5th year assuming the stock is 2x base date price.

57.By email of 2 October 2011[18], P said to D2, inter alia:

Hello Richard. As agreed.

1: 1% vests in 3 years. .5% in 5 years assuming 2x initial market cap.

…

58.On 3 October 2011, D2 emailed P:

(a)  He said:

Three documents, if they are ok, I will fill in the details.

Missing one letter which should have tomorrow.

(b)  3 draft employment contract letters[19] (Employment Contract letter 01.doc, Employment Contract letter 02.doc and Employment Contract letter 03.doc) were attached. They related to P’s participation in NGL’s share option scheme[20], the P’s employment[21], and P’s entitlement to annual bonus[22]. They bore the date of 1 January 2012. They were not signed.

59.On 3 and 4 October 2011, there were further email exchanges between P and D2 on his employment terms[23]. On 4 October 2011, P wrote “Thank you Richard. Just landed. All agreed.”[24]

60.On 4 October 2011, D2 emailed P and said “Here’s the last document. I think it still need some work but please review and let me know.”  A file with the name “Draft letter.doc”[25] was attached (the “Draft 4/10 Letter”). It was unsigned, and had blanks to be filled in. Its contents are as follows:

Draft Letter on Richard Elman’s personal notepaper

Name and Address of Addressee

STRICTLY PRIVATE AND CONFIDENTIAL

Date [                  ]

Dear [        ]

I am writing to confirm the agreement I have reached with you concerning the transfer of shares (“Noble Shares”) in Noble Group Limited (“Noble”) to you and the payment of an incentive fee to you calculated by reference to the market price of Noble Shares. This agreement is made in consideration of you accepting employment with Noble as the Chief Executive Officer and an Executive Director of Noble by signing a formal employment contract with Noble (“Service Contract”) and commencing employment thereunder, the date of commencement being your “Start Date”.

1. Provided you then remain employed by Noble as the CEO and an Executive Director of Noble, I shall procure the transfer to you on the day which is the third anniversary of your Start Date of [        ] fully-paid Noble Shares, being 1% of the now existing issued share capital of Noble.

2. Provided (a) you remain employed by Noble as the CEO and an Executive Director of Noble on the day which is the fifth anniversary of your Start Date and (b) the share price of a Noble Share on that day is [        ] or above ([        ] being twice the share price of a Noble Share as at today’s date), I shall procure the immediate transfer to you of [        ] fully-paid Noble Shares, being 0.5% of the now existing issued share capital of Noble.

3. Provided you remain employed by Noble as the CEO and an Executive Director of Noble on the relevant Payment Date (see below), on each anniversary of your Start Date up to each such anniversary being a “Payment Date”, I will procure the payment to you in cash or equivalent in Noble Shares (valued by reference to their market value on the relevant Payment Date) of an amount equal to 7.5 per cent of the amount by which [  ] exceeds [        ], being the [        ] on your Start Date.

4. [The number of Noble Shares referred to in paragraphs 1 and 2 above shall be adjusted as appropriate if the share capital of Noble is altered by a capitalization of profits or reserves, a rights issue, a consolidation, sub-division or reduction of capital or some other similar event by reference to which such an adjustment is customary, fair and reasonable.]

5. The proviso in [paragraph 1] shall cease to apply if you cease to be employed by Noble or cease to be an Executive Director of Noble in circumstances whereby you are a “good leaver” for the purposes of your Service Contract.]

6.	(a)	This agreement is personal to you, and your rights under it may not be charged, transferred or assigned.
	(b)	You are responsible for any and all liabilities for tax or other duties arising in connection or by reason of this agreement.
	(c)	Each of us confirm that this agreement is strictly confidential and neither of us shall disclose it to any third party unless required to do so as a matter of law.
	(d)	The arrangements set out in this agreement are subject to the rules and regulations of the Singapore Stock Exchange (and any other exchange on which Noble Shares may be listed from time to time) and each of us shall comply with the same in all respects.
	(e)	This agreement shall be governed by, and construed in accordance with, Hong Kong laws and each of us agrees that the Courts of the Hong Kong SAR shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning this Agreement and any matter arising therefrom.

Please confirm your agreement to this letter by signing the acknowledgment below.

Yours [Sincerely]

Richard Elman

I agree to the above.

_________________

[        ]

_________________

[        ] October 2011

61.There were then some correspondence and discussions between P and D2 on the terms of the Draft 4/10 Letter[26]. In one of the emails, P asked “in terms of this agreement you say it’s private, which I agree, but is there anyone in your company that is aware of it?” D2 replied “David Eldon”[27].

62.On 7 October 2011[28], P wrote to D2 and said “I think we should use today’s close as the strike for our agreement.”  He further clarified 3 things:

3 things to clarify in terms of our side agreement.

1: unless I leave or get fired for cause then our side agreement still holds.

2: we haven’t agreed any guidelines for how much you hold beyond 2 years. Obv the 7.5% carry will be a function of how much you hold so that’s an important point.

3: was not in the agreement you sent me but as agreed if you sell during the year the 7.5% carry still applies on any sale proceeds.

63.The Draft 4/10 Letter was then converted into a letter[29] (the “7/10 Letter”). P says that it was prepared with the help of staff in NGL’s Legal Department. It was on D2’s letter head. It was signed by D2, but not by P. Its contents were mostly similar to the Draft 4/10 Letter. The blanks had however been filled in. Some further details had also been added. I set out its relevant contents for ease of reference:

Mr Yusuf Alireza

-Present-

STRICTLY PRIVATE AND CONFIDENTIAL

Date: 7 October 2011

Dear Yusuf,

I am writing to confirm the agreement I have reached with you concerning the transfer of shares (“Noble Shares”) in Noble Group Limited (“Noble”) to you and payments to you calculated by reference to the market price of Noble Shares. This agreement is made in consideration of you accepting employment with Noble as the Chief Executive Officer and an Executive Director of Noble by signing a formal employment contract with Noble (“Employment Contract”) and commencing employment thereunder.

1. Provided you remain employed by Noble as the CEO and an Executive Director of Noble on 1st January, 2015, I shall procure the transfer to you as soon as practicable after 1st January, 2015 of fully-paid Noble Shares equal to 1% of the Noble Shares now in issue.

2. Provided (a) you remain employed by Noble as the CEO and an Executive Director of Noble on 2nd January, 2017 and the VWAP of a Noble Share on that day is twice (or more) the VWAP of a Noble Share on 2nd January 2012, I shall procure the transfer to you as soon as practicable after 2nd January 2017 of fully-paid Noble Shares equal to 0.5% of the Noble Shares then in issue.

3. Provided you remain employed by Noble as the CEO and an Executive Director of Noble on the relevant Payment Date (see below), as soon as practicable after 2nd January, 2013 and each 2nd January thereafter (each such date being a “Payment Date”), I will procure the payment to you in cash or equivalent in Noble-Shares (valued by reference to the VWAP of a Noble Share on the relevant Payment Date) of an amount equal to 7.5 per cent of X - Y x Z where:

X equals the VWAP of a Noble Share on the Payment Date in question;

Y equals the highest VWAP of a Noble Share on any past Payment Date; and

Z equals the number of Noble Shares that I own or control on the Payment Date in question.

(NB no payment will be made in respect of a Payment Date if the calculation is negative).

4. The proviso in paragraph I shall cease to apply if you cease to be employed by Noble or cease to be an Executive Director of Noble in circumstances whereby you are a “good leaver” for the purposes of your Employment Contract.

5.	(a)	This agreement is personal to you, and your rights under it may not be charged, transferred or assigned.
	(b)	You are responsible for any and all- liabilities for tax or other duties arising in connection with this agreement.
	(c)	Each of us confirms that this agreement is strictly confidential and neither of us shall disclose it to any third party unless required to do so as a matter of law.
	(d)	If for any reason this agreement works unfairly in relation to either of us (i.e. it does not produce the results we intend), we will re-negotiate it in good faith.
	(e)	The arrangements set out in this agreement are subject to the rules and regulations of the Singapore Stock Exchange (and any other exchange on which Noble Shares may be listed from time to time) and each of us shall comply with the same in all respects.
	(f)	This agreement shall be governed by, and construed in accordance with, Hong Kong law and each of us agrees that the Courts of the Hong Kong SAR shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning this Agreement and any matter arising therefrom.

Please confirm your agreement to this letter by signing the acknowledgment below.

Yours Sincerely

[signed]

Richard Elman

I agree to the above

_________________

Yusuf Alireza

_________________

October 2011

64.On 10 October 2011, D2 responded to P’s email of 7 October 2011 and the 3 matters he raised therein[30]. D2 said:

In answer to your 3 questions.

1. Correct.

2. It must be fair on my side. Can we talk? I think we should talk it out. I’m not sure how to make a cast iron agreement, but I hope and should hold 15 pct or not less than.

3. OK correct.

On strike date on equity it does not make any difference as vesting only in future whatever the price will be. On options, I need you to be on board as per terms and agreement I sent you. Happy to explain further, but I assure you that I will be totally fair.

65.In his email to D2 of 24 October 2011[31], P addressed both the “contract between myself and Noble” and “our agreement”. He said:

Lawyer comments on contract between myself and Noble. For comment on our agreement they needed to go to Singapore lawyers which hopefully they will get back to me before we meet so we can discuss and finalise.

P’s lawyers’ email containing comments on the employment contract letters was forwarded to D2. Copies of those draft employment contract letters were also attached. They had apparently been signed by D2. There were handwritten comments on them. P and D2 were further making arrangement to meet to discuss further[32].

66.On 27 October 2011, P emailed D2 in relation to both his employment agreement with NGL and the agreement between themselves[33]. He wrote:

Trying to finalise the contracts. A couple of points left.

1: In annexe 1 the additional language that the lawyer put in on the first page about if I am let go during the year I should get a pro-rated payment of bonus. Are you fine with this or not as it didn’t make it into your version?

2: In terms of the contract between us and strike starting price for the stock as we agreed we should use the date that I confirmed that I will join. From my perspective that would be the day i resigned and called and confirmed that we were done. That date was oct 14th. If that is fine with you we should use that price in the contract.

3: Finally lawyer is asking if stock you own are in scripted or scripless form.

67.On 28 October 2011, D2 by email replied[34]. He said:

1.  OK

2.  OK

3.  Scriptless

68.On 6 November 2011, P emailed D2[35]:

(a)  He said:

Some final comments from the lawyer on the bonus letter and the share options. They will come back to me on monday with final comments on the agreement between you and i.

(b)  The comments were then set out;

(c)  In the last paragraph, P asked:

Finally can you please give me the registered office address of Fleet Overseas (New Zealand) Limited?

69.On 7 November 2011, D2 sent P 2 emails. In the first one, he said that he would study the document. He said that it was highly unlikely that termination would happen if everything was ok, such that he thought a lot of P’s lawyer’s concerns were not valid. In the second, he asked:

Yusuf, are we done now please?

70.On 8 November 2011, D2 replied[36] and said:

Fleet Overseas (NZ) Limited

25 Earle Street

Parnell

Auckland

New Zealand

71.On 8 November 2011, Ms Duncan sent an email to P[37]. She said:

Further to our conversation this morning, please find attached the Deed with the amendments at paragraphs 3.1.2 (the strike price has been inserted) and 3.2 (I have changed this to 0.4%).

•  Clause 5 of the Deed contains a number of warranties on behalf of Fleet Overseas and Mr. Elman.

•  As discussed, we need to establish whether Mr. Elman’s Noble Shares which are owned by Fleet Overseas (NZ) Limited are subject to any third party interests.

•  We have advised you that the most risk-free way of effecting the share transfer is to hold the shares in escrow.

•  If the shares are not held in escrow, then in the event that circumstances arise where you need to enforce the deed, it is imperative that the Shares are not subject to any claim from a third party and can be transferred to you directly by Fleet Overseas.

72.On 9 November 2011, P forwarded to D2[38] the above email from Ms Duncan together with the attachment and said:

Please see final comments from lawyers on Deed between you and I. Thank you.

There is no evidence of any email in response from D2.

73.On 10 November 2011, P and D2 arranged via email to have lunch together[39] that day.

74.On 11 November 2011, Ms Duncan emailed P and asked whether he needed to discuss the matter with them further. P replied on the next day and said “Thank you very much but all agreed”[40].

75.On 1 January 2012, P and Noble Executive entered into the employment contract. Correspondence relevant to the Deed of Agreement stopped, and did not resume until a couple of years later, as follows.

76.On 26 March 2015, P emailed D2[41] and said inter alia that:

On your and my agreement I didn’t want to mention anything as not my style but the share transfer was meant to happen by end of Jan. I am assuming with everything going you have forgotten as I did as well. Happy to discuss when you are back.

77.On 13 April 2015, D2 replied (“13/4/15 D2 Email”)[42] and said that:

Let’s sort this out today or tomorrow.

Can you bring along the agreement please so we don’t get it wrong please? Thanks.

I must admit, I forgot about it and I thought we have to settle around now.

78.On 14 April 2015, P replied[43] (the “No Urgency Email”) and said:

Sorry sir. got tied up today. No urgency. Thank you.

79.Between 2 September and 14 October 2015, there was this email chain between variably P, D2 and Mr Alam[44]:

(a)  On 2 September 2015, D2 said to Mr Alam:

I have a personal commitment to give Yusuf 1.5% of Noble equity (1% now and 0.5% in 2017).

Can we discuss how to handle this please? Thanks

(b)  On the same day, Mr Alam replied:

I don’t see any issues except that YA’s a director, therefore his new ownership would be announceable, You ok with that?

(c)  On 14 October 2015, D2 wrote to Mr Alam, copied to P:

Can we do this transfer as long as Yusuf and you are OK with this please?

(d)  On the same day, Mr Alam replied:

Richard, we can do it, although it must be announced straightaway. Yusuf has a higher EQ than me so I’ll leave him to decide timing with you, as no doubt he will want to consider any effect this announcement will have on our workforce.

Miles above my paygrade, but I do think announcing now will evoke a hostile reaction.

Announcing after a decent Q3 and after some strategic deals are public would make a lot more sense.

(e)  P then said (at 4:21 pm):

agree. lets discuss tomorrow both legal and perception issues.

(f)  On the same day, P wrote to D2 (the “No Rush Email”):

Lets talk tomorrow sir. No rush. Neither you or I are going anywhere anytime soon. :-)

I think we both need to understand if we have to give any information about this in terms of why and how the transfer happened.

(g)  D2 replied on the same day:

OK, I Just wanted to get it done, tend to forget otherwise.

(h)  P then on the same day replied:

me to [sic.], will discuss tomorrow. tks

80.On 14 April 2016, P emailed D2[45] and said:

We have both been very busy/distracted but given 15 months have passed since we were supposed to take care of it  I think we should take care of the 1% transfer over the next few days if possible. I don’t know how you want to execute it and I am fine to do it any way you think works best for you.

81.On 22 May 2016, P emailed himself a long email he intended to send to D2[46] (the “Intended Email to D2”):

(a)  The first paragraph read as follows (underline added for ease of presentation):

While I did not send this email out when I wrote it I think I need to because it’s important for you to know exactly how I feel. I don’t want to keep anything away from you as I have always worked under the policy of no secrets between us. When I wrote the below I was going to send it to you and a few members of the Board because I think it’s important for everyone to have full disclosure. Those members where going to be: David, Chris, Irene and Paul. I will not send anything to them till you have had a chance to read it and we have had a chance to discuss it. I’m sorry in advance if anything in this email upsets you, I promise you it is not meant to, but I need you to know exactly how I feel about things and I want to work with you not against you on getting to the right answer, even if that means the right answer is me making room for another CEO.

(b)  He addressed certain differences between himself and D2. He explained why he thought NGL should become a private company. He said “I want to be 100% transparent with you on what my vision for the company is as a public company and under what circumstances I would have conviction and passion to continue serving as CEO.”  He addressed his performance over the last 4 plus years. He set out his vision for the company. He then said “The only way I can continue as CEO of a public company is under the following conditions.” He set out 4 conditions. He said that “This is my vision for what needs to be done”. He said as the last 2 paragraphs:

I am the first one to admit that my vision might be wrong and what matters is what vision the Board has. I do hope that you and the Board can support that vision because I have a lot of passion for the firm, I do strongly believe I am the right leader for the firm and I do think that even as a public company with the right kind of conditions, empowerment, hard work and a bit of good luck we can succeed over time.

If yourself and the Board do not support that vision than we should start a discussion on my transition out of the firm. While I have willingly given up on my contractual compensation rights from the firm because of the overall performance of the firm and the fact that I wanted to pay my people before I pay myself, I do think you need to fullfill your obligations to me as I have done so for you. I will do what is required to transition in the most professional way with the least negative impact to the firm. I can assure you that I would never do anything to harm you or the firm. Noble, like GS, is part of my legacy and reputation and I will always do what I can to support its future success. I am proud of my contribution over the last 4+ years and if I was asked to leave I would want the firm to continue to succeed without me. One of things I am most proud of at GS is all the businesses I was part of building at GS continue to perform well after I left them and continue to deliver results for GS Shareholders. I would want the same for Noble. Clearly, my preference is to stay and continue the journey I started 4+ years ago. I have never given up on anything in my life and don’t want to start now but I can only truly have conviction and passion for the CEO role if the Board is willing to put in place the conditions that I believe are required for our future success.

82.On 26 May 2016, P and D2 had a meeting (the “26/5/16 Meeting”). What happened during that meeting is in dispute.

83.On 26 May 2016 at 4:50 pm, P sent an email to inter alios Mr Pratt, Mr Eldon and Mr Brough[47] (the “26/5/16 1650 Email”, with emphasis added for ease of presentation):

(a)  The subject was “FW: Message to Chairman”;

(b)  It read:

Dear fellow Directors,

I wrote this letter to Richard last week and was planning on giving it to him tomorrow but obviously some of this is less relevant given the meeting I just had with Richard.

I still thought it is important for me to share this with all of you as well.

I respect the decision of the Board and will implement it in whatever way causes the least disturbance to the firm.

I would like the opportunity to sit down with a few members of you to discuss this today if possible. Maybe if at least Chris and David can accommodate a meeting today that would be much appreciated.

(c)  The intended email to D2 was attached, with some amendments to only the first paragraph, by changing the parts underlined at §81(a) above to the following:

I want to give you the opportunity to read it and think about it and then I think I should also give it to the independent directors so they also know how I feel. I am sorry if anything in this letter upsets you …

84.On the morning of 27 May 2016, P had a meeting with Mr Pratt, Mr Brough and Mr Eldon (i.e. the 27 May Morning Meeting).

85.After that meeting, on the same day at 11:49 am, P issued an email to Mr Pratt, Mr Brough and Mr Eldon[48] (the “27/5/16 1149 Email”, with emphasis added for ease of presentation). It was copied to D2. P first thanked the 3 for attending the meeting. A number of paragraphs followed:

(a)  At §1, P asked for the opportunity to review the announcement of his departure before it went out;

(b)  §2 read:

I expressed my concern for the implications for the firm of this decision. I do hope I am wrong and I do hope our internal and external stakeholders will take it ok. I feel very comfortable after the meeting that you have considered these issues and have made the decision for all the right reasons.

(c)  §§4 and 5 read:

4.  I will work with Jeff on my contractual rights and responsibilities so there is no confusion or misunderstanding going forward. A few to highlight:

a. I will confirm my contractual garden leave and non compete with Jeff. I believe they are 6 months.

b. I highlighted that I have an employment contract that obligated the firm to deliver 25mm of options a year for 5 years and 2.5% of the profits of the firm. I have not received these payments and have been fine with that given I was focused on paying my people rather than paying myself.

c. Part of my contract is that if I am fired, not for cause, that all my stock and options vest and deliver immediately. I would like confirmation of that and I would like to confirm that I am inclined to sell the stock immediately but of course want to be sensitive to perception issues of that action so happy to discuss.

d. I informed you that Richard owes me 1 % of the company in shares. This was due in Jan 2015 and Richard has always confirmed that he recognizes that obligation and is ready to full fill it but timing was never right given all the things that have been going on. There is an additional .5% that was due to me as of jan 2017 and according to the contract if I get fired, not for cause, during 2016 then .4% (instead of .5%) of the company needs to be transferred to me immediately. The only issue here is again my preference would be to sell the shares but I am sensitive to perception issues and don’t want to harm the firm and happy to take guidance on how to resolve. Potentially a payment in cash would be better for all involved. (All employment contracts have been scanned and attached to this email for reference)

e. It would give me great comfort if all these matters could be agreed and documented immediately so that there are no misunderstanding going forward.

5. I am proud of what I have done for the firm and I care a lot for the firm and its people, including its Chairman. Noble is part of my reputation and legacy and I only want it to succeed. While I disagree with the decision made and do not think it’s in the best interest of the firm I will support the decision and never say otherwise. With that said, I am very concerned about the things that have been done to former CEOs after they have left and I expressed that concern in the meeting. I am relying on all involved to insure that those same mistakes of the past are not repeated and I was assured of that.

86.D2 responded to that email later that day[49], that:

1.  We will certainly show you the announcement before issuing it …

4.  Please work with Jeff Alam, who has been advised.

4.c  I have no issue in principle but I would request you to not sell the shares until after we have completed our fund raising.

4d.  I will settle this matter with you in cash. Let’s work out the numbers.

87.On 27 May 2016 at 1:08 pm, there was the following email exchange between Mr Alam and P in relation to the wording of the announcement on P’s departure[50]:

(a)  Mr Alam said that the wording of the draft announcement had been “primarily driven by the INEDS”. He sought P’s comments. The draft read:

The Directors of Noble Group announce that they have accepted the resignation of Yusuf Alireza, Chief Executive Officer.

Mr. Alireza has helped guide Noble through a very challenging period, moving the company to an asset light, merchant focused model; he played a pivotal role in the successful sale of Noble Agri to a group of investors led by COFCO, and has also been instrumental in securing the recently announced re-financing, a crucial element in the process of giving the group a stable base from which to develop.

With this transformation process now largely complete, Mr. Alireza considered that the time was right for him to move on. The Board wishes to thank Mr. Alireza for his dedication and commitment to the company over the last four years, and in particular for his huge commitment of time and energy over the past eighteen months, as Noble has navigated some of the most difficult market conditions ever seen in commodities markets.

A separate announcement will be made about succession to Mr. Alireza.

(b)  P at 1:12 pm in reply said that he was fine with it.

88.On 27 May 2016, shortly after his reply to Mr Alam above, P emailed D2[51] (“27/5/16 1322 Email”, with emphasis added for ease of presentation). He said inter alia that:

While I disagree with your decision and don’t think it’s in the best interest of the firm I am entirely at peace with it and I do not hold any hard feelings at all. I want you, the Board, the mgt team and the firm to succeed and I will always be available to help in any way you want me to.

In reply, D2 at 4:43 pm said inter alia:

I thank you for your good wishes and naturally hope I didn’t make a mistake.

89.At 5:12 pm that day, Mr Alam emailed P (copied to D2) on the subject of “Settlement Agreement”[52]. He sent to P a draft settlement agreement. He said:

Here is the settlement agreement dealing with your corporate entitlements.

Richard is going to deal with you direct about the amount due under the Fleet Overseas (New Zealand) Limited contract.

90.P replied in the small hours of 28 May 2016[53]. He first addressed the “Agreement with NESL[54]”. He started off by saying:

Agreement with with [sic.] NESL

Options & Stock

My agreement was that if I was fired for anything besides cause that my shares and options would continue to vest. As you know I was entitled to 2.5% of of the profits on an annual basis which I did not take and 25mm options each year for 5 years which I only took first year and second year took 15mm options. I didn’t take my contractual compensation because I was working under the assumption that I would earn the upside when we turned things around. That opportunity has now been taken away from me and the firm should compensate me for that. As you know by cancelling my options the firm will be able to release about $30mm+ of costs.

Then, in respect of the “Agreement with Richard”, he said:

Agreement with Richard

This needs to be finalised at the same time. 1.4% of company converted to $s using the closing price on Friday is $20.2mm. Consistent with my contract this should be a clean payment with no conditions attached.

91.On 29 May 2016, P emailed D2 and a number of NGL directors[55]. The subject was “My concerns”. The first paragraph read:

I have been debating in my mind if I should send this message as I know it can be perceived as self-interest and/or desperate but having not been able to sleep for the last two days I felt like I have the responsibility, as the former CEO, to send it to all of you and I am confident that with the right information you will reach the right conclusions even if they are different than mine.

He then stated his views on the “Liquidity position of the firm”. Then, under the heading of “NAES”, which stands for Noble Americas Energy Solutions, he said that:

NAES

I want to make it clear that I really thought that we had concluded the last Board discussion on this subject with an agreement that we would focus first and foremost on the refinancing and then come back to this subject. My intention was at the next Board meeting to run through the pros and cons of a sale and allow the Board to make an informed decision. As I said in the meeting, I looked at this option in early summer last year. Nigel and his team did the work and concluded that a sale was not in our best interest and after looking at the facts i agreed with them. My view has not changed for the following reasons but I do think it’s essential that you consider all the facts before you make this decision. Again I am confident that you will make the right decision as long as you have all the facts. As discussed the reasons I don’t think it make sense are the following.

He then stated a number of reasons. He next addressed the “Lone Star” matter. He concluded by saying:

I am not suggesting any change in action or strategy on the back of the information I have provided as I have full faith that whatever decision you all make will be the right one. I just want to make sure you have all the information that I have and think is relevant to these decisions.

I do hope you all take this message in the spirit it is meant. I hope and pray that the next few days and weeks will go well for the firm and that all our internal and external stakeholders react calmly and thoughtfully. I am sure all of you will do what is required to make sure that happens.

92.On 30 May 2016, a general announcement was issued by NGL[56] (the “General Announcement”). Its contents were the same as those discussed between Mr Alam and P.

93.At [C5/130] is the “Extract Minutes of a meeting of the Board of Directors of [NGL] held at 5.02pm … on Tuesday 31 May 2016…” (the “Extract Minutes”). It was dated 11 July 2017. Item 2 read, inter alia:

Senior Management Changes

A paper was considered, and it was noted that:

(i)  Yusuf Alireza - the Directors had accepted the resignation of Mr. Yusuf Alireza, Chief Executive Officer, with effect from 30 May 2016;

(ii)  William Randall and Jeff Frase - Mr. Randall and Mr. Frase had been appointed as Co Chief Executive Officers with effect from 30 May 2016; and

(iii)  Richard Elman - Mr. Elman would continue in his role as Chairman and Executive Director.

94.On 1 June 2016, P wrote to Mr Alam, as follows[57]:

Thank you for taking the time and trying to get to right answer. Please keep in mind that when Richard agreed to give me 1.5% of the company the value at that point 1.5% was $100mm. I left a job that was earning me 25-30mm a year and he knew what I was earning and what I was leaving behind. The value of the 2.5%, options and 1.5% should have been worth hundreds of millions. That is what I was assuming when I gave up my role at GS. I had no idea the mess that was on the balance sheet and how little real businesses we had that were making franchise money. He felt comfortable giving me 1.5% when it was worth 100mm so he should feel comfortable giving me 1.4% when it’s worth 20mm. The last 4.5 years were bad for all of us but worse for me than anyone as I saw none of the upside of the previous 10 years and walked away from a job that probably would have paid me $100mm over that time period. For the foreseeable future I am unemployable. I think I am being more than reasonable. I have no hard feeling and and never regret any decisions made. I want to look forward and I want the firm to succeed and I don’t want to feel like Richard is the kind of person who does not full-fill his contractual obligations. Others said he wouldn’t and I always defended him and said he is a man of his word when it matters and has always been generous with people. I am not asking for generosity, I am just asking for what he owes me.

95.On 3 June 2016, P emailed D2 and Mr Alam[58]. He gave them a summary of meetings he had had with stakeholders. Under the heading of “Settlement”, P said:

If liquidity is an issue for you sir, while i would prefer all in cash, i am happy to take some in shares and commit to participate in the right issue. I want to show support for the firm and its mgt and if you and the Board think that will be helpful i am happy to do it.

In reply, D2 said:

On settlement, please speak to Jeff as I have a locked up position now so I think cash is best.

96.On 3 June 2016, P emailed Mr Alam[59]. He said:

Good to talk to you today.

Would be good to finalise this before i take off on Wednesday morning.

I thought it was fair to use the price of the stock and Foxtail on the friday when i was fired. I send that suggestion last weekend so not like i am saying it now just because the stock is down.

I think that is fair but if Richard thinks that there is another proposal that is more fair then i am happy to consider but don’t want this issue hanging over us.

97.On 7 June 2016, there was another chain of emails between P and Mr Alam[60]:

(a)  P emailed Mr Alam for an update;

(b)  Mr Alam replied and said:

Yusuf, the latest, and I spoke to RSE this morning, is 10mm from the company in full and final settlement, and 10mm from Richard in full and final settlement.

(c)  In reply, P said:

Sorry to hear. I know you tried.

My lawyers will be in touch.

(d)  Mr Alam replied:

Yusuf, happy to talk to your lawyers although I fail to see why. In London you said you didn’t want to put Noble under too much stress and that 10mm from Noble was about right. On RSE, you have told us that a payment in cash is better for all involved, and you have told us also that you are also happy to take some in shares and participate in the rights.

I, for one, am a little confused.

As you have said, I am doing my best here. Most people who have led a company to a 1.67bn dollar loss would accept 20mm in cash as very fair.

(e)  P replied and said inter alia:

Jeff, you, more than just about anyone, should know that I feel 100% comfortable with what i did for the company over the last 4.5 years so you can imagine that mentioning the $1.7bln loss has zero impact on me.

Now that I have taken legal advise, my lawyers have advised me that I am entitled to multiples of what i had suggested as a compromise for a quick and amicable resolution.

Just some examples:

The 1% was due to me in January of last year. The monetary value of that 1% at that time was approx $50mm.

The 2.5% of firms profits is significantly more than i have been paid. It should have been paid to me 50% in cash and 50% in stock. I can and will claim for all of that.

My proposal was more than fair. The $20mm value that I came up with was the value of the 1.4% on Friday not taking into account the fact that the 1% was worth $50mm when it was contractually required to be delivered to me. Even as of today that value is $17mm so how you could possibly think $10mm is fair and consistent with Richard’s contractual obligations is beyond me. The $10mm from the company is a fraction of what i am contractually entitled to have been paid over the last 4.5 years.

For 4.5 years i put the company’s interests ahead of mine and my families and now that i have been fired it is very reasonable for me to expect a fraction of what i was entitled to during those 4.5 years to be paid to me. Even if we have differing views on my performance during that 4.5 years those views are irrelevant to what my contractual compensation rights are.

98.There was no contemporaneous denial, whether from Mr Alam or any other person, that P had been fired.

99.On 12 June 2016, P emailed D2[61] (the “12/6/16 0533 Email”, with emphasis added for ease of presentation). The subject was “Personal Message”. He said relevantly the following matters:

After the initial shock of the decision I have to admit I have moved to a state of anger over a bunch of things. While I guess it’s a natural part of the healing process it’s not one I am proud of and it’s one that I want to move beyond as soon as possible. It’s not my nature to be angry at people. It’s my nature to try to understand, accept, forgive and move on. I think writing you this email is an important part of that process of forgiveness and moving on.

I am angry that the Board made this decision without even discussing it with me and understanding clearly what my issues were and what my vision for the firm was and that they didn’t make the effort of getting you and I to sit down and see if there was a middle ground …

I am angry that if you had decided that the right thing for the company was a transition to Will and Jeff that you would not have executed it in a way where it would look like a natural transition rather one that was forced on me …

I am angry that it was clear that I was key to the financing of the firm but once that was completed the decision to remove me was quickly made and executed. Makes me feel like the decision may have even been made before the financing.

I am angry at the suggestion that I disregarded the Board’s instructions to sell NAES. First, I am not sure how the Board could have reached that conclusion without a proper presentation from Mgt on pros and cons of that action. More importantly, I am hugely disappointed that any member of the Board, and especially you, would believe that I would disregard a direct instruction from the Board.

I am angry about how this settlement discussion has developed. After being told by Jeff on Friday that you accepted that your contractual obligations to me where 1.4% of the company (which is something you have always been very clear about) Jeff came back with a final offer that was not consistent with these contractual obligations at all and exactly in line with his first offer to me.

I am angry that Jeff would suggest in his email that I was responsible for the $1.7bln loss the firm took in 2015. Given what I did for the firm over the last 4.5 years it’s insulting.

It’s this anger as well as a fear that I would not be treated the way I think I should be treated that led me to reach out to the law firm that was involved in putting together the documents for us in the first place.

…

100.On 23 June 2016, Gall wrote to D2[62]. It referred to the Deed of Agreement, and specifically Clauses 1.1, 2.1, 3.2, 9, 11.1 and 15.1 thereof. It alleged breach on D2’s part, and demanded him to on or before 23 July 2016 procure the transfer of 67 million NGL Shares to P, and to make payment of SGD 56,280,000 for the loss in value of those shares.

101.RSRB on 22 July 2016 wrote back[63]. It said that Gall’s letter “is incorrect in material respects and the demands made are legally unsustainable”. It said that the date for delivery of the 1% shares under Clause 2.1 had been varied, such that “there was a suspension of the time for delivery of the Noble Shares until a demand for delivery has been made”, that “there has in any event been a waiver by estoppel of any alleged non-compliance”, that “it is an implied term (implied by reasons of both law and necessity) that where the delivery date of the Noble Shares is varied, the new delivery date should be within 30 days of Mr. Elman being legally permitted to make such delivery following a demand for delivery”, that “Mr Elman is subject to a “lock up” period”, and that that lock up period would only expire at the start of November 2016. It also said that it “is also worthwhile noting that the Agreement is not a Deed (although so entitled) as inter alia, it does not comply with the required formalities of execution.”  It concluded by saying that:

In light of the above it is plainly arguable that your letter of 23 June 2016 is not a valid demand for delivery, nevertheless in full and final discharge of his obligations under Clause 2.1 of the Agreement, our Client will deliver to your Client the Noble shares within 30 days of the expiry of his lock up period above. Kindly advise your Client’s nominated securities account for delivery. Note however, that while effecting this delivery of shares, our Client reserves all his rights and does not make any admission or grant any form of waiver to your Client.

102.On 12 September 2016, D2 emailed P[64]. He said that:

I must admit I was surprised when you rejected our offer that Jeff brought to London, which I thought was more than fair given the position the Company was left in and the legal problems you will have both as regards your employment position and in respect of the so called “Deed”.

I would of course prefer to resolve this issue on an amicable basis but I don’t think your lawyer’s letters can be described as “amicable”.

Please refer to my letter to your lawyer dated 22 July, 2016 on the shares. But just so you know, I have received legal advice to the effect that the Deed is a mess with the result that there is a good chance it is not what you think it is. If you wish, I’ll withdraw the offer to deliver the shares. We can then litigate and find out whose lawyers are right.

103.In a chain of emails between 15 August and 18 September 2016, P checked with Mr Alam as to whether Mr Alam would need to report any of P’s purchase or sale of NGL shares. In his email of 18 September 2016, P asked Mr Alam to confirm as “I will selling my shares over the next few days”[65].

104.There was other correspondence between parties’ respective legal advisers. In particular, by letter of 4 October 2016 to Gall, RSRB asserted that “your demand dated 23^rd June 2016 is invalid and of no legal effect.”  By letter of 6 January 2017 to RSRB[66], Gall amongst other matters stated P’s nominated securities for transfer of the 1^st Tranche, and invited D2 to fulfill his promise to do so.

105.On 13 June 2017, the Writ herein was issued.

106.It is relevant to note also that on divers dates, P acquired the following numbers of NGL Shares or share options via divers means (the “Acquisition Table”):

Date	No of shares/options	Acquired via
19-03-12	35m options	NGL Share option Scheme 2004
15-11-12	7.25m shares	Open market purchase
05-04-13	25m options	NGL Share option scheme 2004
23-09-13	12,988,429 shares	Employment bonus for year-end 31-12-12
28-04-14	15m shares options	NGL Share option scheme 2004
08-07-14	1.9m shares	Employment bonus for year-end 31-12-13
05-03-15	5m shares	Market transaction
17-04-15	4,286,181 shares	Vesting of share awards
06-04-16	4,912,357 shares	Vesting of share awards

J.  Credibility and reliability of witnesses

J.1.  General principles

107.I have considered Hui Cheung Fai v Daiwa Development Ltd (HCA1734/2009, 8 April 2014) §§77-83 and Chen Tek Yee v Chan Moon Shing (HCA 954/2010, 7 May 2015) §42 which Mr Manzoni has cited to this Court. They are not in dispute.

J.2.  Mrs Alireza

108.Mrs Alireza’s evidence in DA/WS may be summarised as follows:

(a)  She and P have been married since 2002;

(b)  She received a call from P in the afternoon of 26 May 2016. He told her words to the effect that “you are not going to believe this but Richard just called me into his office and fired me”. She describes her feelings when she was so told. She says that she felt a knot in her stomach and utter shock. She recalls having feelings of embarrassment as that was not something she wanted to share with her family or friends;

(c)  P was not someone to walk away from anything, and certainly not without the direct support and foreknowledge of his wife. She says that she and P have a very close relationship, and it is inconceivable to her that P would have tendered his resignation to NGL without first discussing with her the ramifications for all the family and then planning for his exit;

(d)  She says that that call from P on 26 May 2016 is one of the events in her life that she recalls very clearly and with all the unfortunate feelings associated with it;

(e)  P told her that he wanted to talk to the other board members to get some clarity surrounding his termination. He said that when the board members met with him the following day, they said the decision to terminate him was in the best interest of the firm, given his deteriorating and dysfunctional relationship with D2. He also told her how disappointed and shocked he felt by their lack of support;

(f)  On 27 May 2016, P called her in the morning and asked her to find the Deed of Agreement. He wanted to read over the details, as his termination was totally unexpected. She sent him an email to confirm that the document she had found was the one he wanted. She identified that email[67].

109.The main theme of Mr Manzoni’s cross-examination concerned whether P discussed with her matters about his work. She was shown for that purpose the Intended Email to D2[68]. Her answers were consistently that whereas P would not discuss details of his work with her, he would discuss the big things with her. P would not stress her till they needed to cross the bridge.

110.Her evidence as to what she says P told her over the phone on 26 May 2016 was not challenged. Rather, during Mr Manzoni’s cross-examination of P, he suggested to P that P lied to his wife when he told her that he had been fired. I will deal with P’s credibility further below. I reject the suggestion that he lied to his wife during that call.

111.I have considered Mr Manzoni’s submissions in relation to Mrs Alireza’s evidence[69]. Those submissions go primarily to the weight of her evidence.

112.I have considered all matters in the round. I find that Mrs Alireza’s evidence is inherently probable, consistent with contemporaneous documents, and does not suffer from any inconsistency. I find that Mrs Alireza is a credible and reliable witness. I accept her evidence.

J.3.  Mr Brough

113.I have considered all matters in the round. Mr Brough’s credibility was not challenged. His evidence is not inherently improbable, and is not inconsistent with contemporaneous conduct. I find him to be an honest witness.

114.I have set out what D2 has said at §60 of D2/WS#1. He states that “1 understand [P] tendered his resignation on 27 May 2016 in a meeting with NGL Board members [Mr Pratt], [Mr Brough] and [Mr Eldon].”

115.Mr Brough at §14 of PB/WS says:

At no time during the meeting with Mr Alireza on 27 May 2016 did any of Mr Eldon, Mr Pratt or myself purport to terminate Mr Alireza’s employment. While Mr Alireza leaving NGL in the strained circumstances seemed likely, it was Mr Alireza who offered and then decided to resign as he considered doing so to be in his own best interests.

No particulars have been provided as to how and when P allegedly “offered and then decided to resign”. Though not clear, Mr Brough does not appear to be saying there that P actually tendered his resignation and resigned during that meeting.

116.In fact, under cross-examination, Mr Brough made it clear more than once that P in fact did not tender any resignation during that meeting. Mr Brough said that he knew about the 26/5/16 Meeting. He however did not know what happened. He knew about it because another meeting scheduled for that afternoon was cancelled, as P requested a meeting with some directors that afternoon to discuss what had happened during that earlier meeting. Mr Brough confirmed receipt of the 26/5/16 1650 Email together with the attachment[70]. A meeting that afternoon was not possible, and one at 8:00 am the following morning was arranged instead. It was attended by him, Mr Pratt, Mr Eldon and P. Mr Brough said that P presented that email to them as his appeal against what he thought was his termination, and he came to the meeting looking for support. They did not give it to him. Mr Brough said that in the circumstances, P said he thought it was best that he resigned. But P did not tender his resignation during that meeting. Specifically, Mr Brough said that “[P] had the capacity to resign, but he didn’t do so in that meeting”. He said that P leaving the company was in everybody’s mind, that there was discussion on what to do to suit everybody. They did not want to smear P’s reputation. They also wanted to avoid any public spat between NGL and its CEO. Mr Westbrook told Mr Brough that no document had ever been discovered showing any resignation from P in writing. Mr Brough said that he had nothing to contradict that. Mr Brough said that that was the last time he talked to P, and he did not know whether P subsequently did resign, and the matter was a bit of a mystery to him.

117.I accept the clarifications Mr Brough gave under cross-examination. P did not tender his resignation during the 27 May Morning Meeting.  Mr Brough’s evidence does not support D2’s alleged belief that P did. Mr Brough’s evidence contradicts it.

J.4.  P

118.P:

(a)  I have considered P’s evidence in the round. There is no material inconsistence between his evidence and the contemporaneous correspondence and documents, which he has made extensive reference to. His evidence is also inherently probable;

(b)  I have considered Mr Manzoni’s observations on P[71]. He submits that certain aspects of P’s evidence “stood out as surprising”. He points to P’s evidence that he did not read Note 1, his apparent lack of understanding of how a trust works, and whether he played any role in relation to Goldman Sach Asia Pacific’s drop in earnings in 2011;

(c)  In respect of Note 1, P said that he did not read it, and that it was not the role of a CEO to read and comprehend each of the notes in NGL’s annual reports. That is not incredible. More importantly, the Deed of Agreement was for his benefit. If he had indeed read Note 1 and had understood its contents as meaning that D1 or D2 was not the owner of the Controlled NGL Shares, the Deed of Agreement would as a matter of inherent probabilities have been structured differently;

(d)  In this regard, there is Ms Duncan’s email to P of 8 November 2011. She described the shares concerned as “Mr. Elman’s Noble Shares which are owned by Fleet Overseas (NZ) Limited”. She mentioned the need to clarify whether they “are subject to any third party interests”; 

(e)  I do not find the other points raised by Mr Manzoni as being “surprising”;

(f)  The suggestion put to P that he had lied to his wife is totally unconvincing;

(g)  D2’s case about P having somehow obtained a copy of the version of the Deed of Agreement signed by D2 is speculative, devoid of particulars and proper evidential support, and is utterly unconvincing. I will deal with this issue further when I consider D2’s credibility later;

(h)  In my view, P is clearly an honest and reliable witness.

J.5.  D2

119.I have considered all matters in the round. For the following main reasons, I find that D2 is neither an honest nor reliable witness.

120.I have summarised D2’s No Agreement Defence above. He accepted that there was a gentleman’s agreement between him and P. He calls it the “Agreement in Principle” in D2/WS#1. He says that its crux should be (1) P leaving Goldman Sachs and joining NGL (the “Employment Limb”), (2) P acquiring an equity interest in NGL of 1% of its then issued share capital, and that if P continued in the CEO role on a long term basis, he would get a further 0.4% or 0.5% at an unspecified date in the future (the “Equity Limb”), and (3) P agreeing that NGL shareholder interests would be aligned with his own interest as CEO, such that they would get richer or poorer together (the “Alignment Limb”). Upon further negotiation, he came up with the Draft 4/10 Letter and 7/10 Letter. P dismissed the 7/10 Letter, and requested the preparation of a more formal agreement in the form of a deed. He subsequently received the draft deed from P. A core aspect D2’s case is that the draft deed had not been signed by P, and that whilst he (D2) did “initial” it, he did so not to signify his agreement to its contents, but just to show that he had reviewed it (I call this the “Initialled Version” as appropriate for ease of reference). That he says has been his practice. He was in his office when he initialled it. He did not give P the Initialled Version. He does not know how P subsequently got hold of it. He presumes that P got it from his secretary. His case is that after P had got hold of the Initialled Version, he (P) added to it his (P’s) and Ms Duncan’s signatures (I call this the “Executed Version” as appropriate for ease of reference) and then presents it as the basis of the present action. What D2 says in D2/WS#1 are, relevantly, as follows (emphasis added):

37. The document provided to me by Mr Alireza was clearly a draft for me to review and comment upon, and which was provided in the context of incomplete and ongoing negotiations. This was also apparent on the face of the document as it was rough, incomplete and littered with various blanks, square brackets and had factual errors …

…

39. When I received the draft document, it had not been signed by Mr Alireza and there was no suggestion that it was intended to be signed or used as a final or operative document. To the contrary, the context was it was a draft of one part of the Agreement in Principle and other parts needed to be put in place (being the Employment and the Alignment Limbs). No execution instructions were provided nor any steps taken in that regard to facilitate formal execution of the draft document. I have executed formal Deeds before and I am aware that this is a solemn and technical legal process with strict requirements.

40. I recall I spoke to Mr Alireza having received the draft document and told him that draft was still incomplete and only part of the documents required. Mr Alireza wanted me to confirm that we were making progress and that we should continue negotiating. Mr Alireza’s employment position with NGL / NESL had not yet been resolved but was getting closer so I initialled the draft (not in the execution space) as this was (and remains) my practise to record that I had reviewed the document. I did not execute or intend to execute the draft document such as make it a Deed or enter an enforceable contract and this was clearly understood and known to Mr Alireza.

41. The draft document I initialled and which Mr. Alireza now holds out as the Purported Deed was plainly a draft and patently incomplete when presented to me and we needed a complete document or set of documents to legally formalise our Agreement in Principle …

44. I do not know how the document I initialled came to be in Mr Alireza’s possession. I did not return it to him and must presume he obtained it from my secretary. …

121.Another core aspect of D2’s case is the Resignation Defence. He says that it was only after P’s resignation when he (D2) first saw the Executed Version. D2 says, relevantly, the following in D2/WS#1:

63. Mr. Alireza’s resignation was thereafter accepted by the Board on 31 May 2016. This was noted in the Extract Minutes of a meeting of the Board held on 31 May 2016 ...

64. In order to have minimum adverse impact on NGL which was then struggling to survive, I tried to smooth Mr Alireza’s exit and avoid a public dispute that would have further rocked confidence by agreeing a generous termination settlement with Mr Alireza, but Mr Alireza demands for severance payments became totally unreasonable and unjustified:

(a)  Mr Alireza conflated his employment entitlements from NGL with the Equity Limb of the Agreement in Principle with me which was not enforceable.

(b)  Mr Alireza sought in effect to retract his resignation in an effort to increase his negotiating leverage for a severance payment.

(c)  Mr Alireza also made false allegations of irregularities in NGL’s expenses in an effort to extract a larger severance payment.

I found Mr Alireza’s approach to be highly unsatisfactory and it was in this context that I first saw the altered version of the draft document Mr Alireza now purports to rely on as the “Deed of Agreement”. The Purported Deed had been changed from the draft I had initialled, and was purportedly executed by Mr Alireza and dated 20 November 2011, all of which came as a surprise to me. However, while I did not accept the document as an enforceable contract and felt cheated by Mr Alireza, I had little choice but continue efforts to compromise with Mr Alireza as NGL was by then urgently trying to raise funds in a desperate effort to survive and Mr Alireza knowing this, was using the threat of a public dispute to get leverage by putting NGL’s negotiations and survival at risk.

122.In my view, D2’s factual case and evidence are contrived, inherently improbable, repugnant to commercial and common senses, and conflict with a long course of contemporaneous communications and conduct. They also suffer from material inconsistencies. I highlight specifically the following matters:

(a)  I have set out the factual matrix above;

(b)  In the contemporaneous correspondence, D2 had never mentioned the need for any Alignment Limb, or that what they had agreed upon was only an agreement in principle or gentleman’s agreement, or that the Deed of Agreement was not a valid deed and was legally unenforceable. The contemporaneous conduct points towards the contrary, and suggests that the factual case D2 now puts forward was made up after the events;

(c)  P clearly stated from the outset that the key for him in terms of delivering long term commitment and success is ownership. It is inherently improbable that he would have left his job at Goldman Sachs and started the Employment without having first secured what he and D2 both regarded as a legally enforceable agreement on his future equity interests in NGL;

(d)  On 3 October 2011, D2 sent P the 3 draft employment contract letters. He said it was “missing one letter”, and then on 4 October 2011, said that “Here’s the last document”, which was the Draft 4/10 Letter;

(e)  In neither of the Draft 4/10 Letter nor the 7/10 Letter was the Alignment Limb mentioned;

(f)  In the correspondence with D2, P drew a distinction between the contract “between myself and Noble” on the one hand and “our agreement” on the other. He told D2 that his lawyers “needed to go to Singapore lawyers” in respect of the latter. He asked whether “stock you own are in scripted or scriptless form”, to which D2 answered “scriptless”. P asked for the address of Fleet Overseas, which D2 provided. D2 in the correspondence and documents used terms like “RSE to give 1% of his holding”[72] and “Noble Shares that I own or control”[73]. D2 had never said over correspondence that D1 was not the right party, or that D1 did not own the shares, or that he could not procure D1 to do so. I reject his evidence asserted during cross-examination that those were only his colloquial ways of putting things;

(g)  On 7 November 2011, D2 asked “are we done now please”. He was clearly impatient, and was trying to conclude the negotiations. There was no mention by him of any need for any additional agreement on the Alignment Limb, or for a binding legal agreement on top of any gentleman’s agreement;

(h)  Put in neutral terms, D2’s marks appear twice on the Deed of Agreement. He says that they were his “initials” but not his “signatures”. He tried to explain the differences between his initial and signature with reference to his other signatures amongst the trial bundles (for example the one on the 7/10 Letter). I do not find his explanations convincing at all. There is no discernable difference between them;

(i)  He claim that “I initialled the draft (not in the execution space) as this was (and remains) my practise to record that I had reviewed the document”. That alleged “practice” is nothing more than his bare assertion. No other similarly “initialled” documents have been produced in support;

(j)  I have described above where D2’s marks appear on the Deed of Agreement;

(k)  He does not provide details on that alleged “practice”, and in particular where on the document he would put his initial according to that “practice”. If the practice were for him to initial any reviewed document over the pre-typed words just to the left of the execution space, I find that practice odd and inherently most unlikely. That is also repugnant to common and commercial senses. He could easily have just initialled the document anywhere, or put a diagonal line across the execution page with the word “reviewed”. Doing it as he claim he did with the Deed of Agreement is conducive towards misunderstanding with serious consequences. There is further no need for him to have initialled the Deed of Agreement twice. He explained during cross-examination that he did so because he reviewed it for himself and on behalf of D1. I find that explanation contrived and unconvincing;

(l)  His reaction upon discovery of the Executed Version according to his case is in my view entirely unbelievable. I have set out his relevant evidence above. He said that he saw it for the first time after P’s resignation when P was negotiating for settlement. D2 said that he was surprised when he saw it. Context is important. D2 in fact saying that P was perpetrating a fraud on him. He believes that P somehow got hold of the Initialled Version. D2 presume P obtained it from his secretary. P then must have added his (P’s) and Ms Duncan’s signatures on it, and then presented it as the Executed Version. According to D2’s version of events, P’s entire claim is based on a fabricated document;

(m)  Yet, under cross-examination, when asked whether he had checked with his secretary as to whether she had given P the Initialled Version, D2 said:

A. I almost certainly didn’t because I was unaware of it. So why would I have -- why would I have checked if I was unaware of it?

Q. This statement was made by you in December of 2021 and you were aware of the deed from at least May 2016?

A. But I did not check -- at that time I did not check. In fact, I didn’t check at all.

Q. In the previous five years before making this statement, you never checked with your secretary?

A. I didn’t know he had possession of it for five years.

Q. Well, we’ll get to that in a moment. I suggest that’s not true.

A. Okay.

Q. But let’s stick with this point. You never checked with your secretary whether she gave this agreement to Mr Alireza?

A. I did not specifically. I do not recollect specifically checking with her, no.

123.His oral evidence as to when he first became aware of the existence of the Executed Version conflict with what he has said in D2/WS#1. But that apart, and more importantly, for him to say that he did not even check at any stage with his secretary the correctness of his presumption (that she had given the Initialled Version to P), that document being the basis of P’s whole case, renders in my view his evidence in this regard utterly incredible. If his version of event were a truthful one, inherent probability and common sense dictate that he would, upon first sight of the Executed Version (whenever that was), immediately have first questioned P about its provenance, and then checked with his secretary how P got hold of a copy of the Initialled Version. For him to say that he did not even do so during the years when preparing for the case is beyond belief.  

124.I am not drawing any adverse inference here for D2’s failure to call his secretary. But his assertion that he did not even check with his secretary by itself renders his evidence in this regard utterly incredible.

125.In this context, the correspondence between P and D2 between March 2015 and April 2016 is important. On 26 March 2015, P raised with D2 the transfer of the 1^st Tranche. In reply, D2 in the 13/4/15 D2 Email suggested that they should sort the matter out that day or the next. He further asked P to “bring along the agreement please so we don’t get it wrong”. P clearly had in his mind a written document. That could not have been the 7/10 Letter. P had never signed it. In my view, D2 was in that email clearly asking P to bring along the Executed Version, which he knew existed.

126.Throughout that period, there was no suggestion by D2 that P was not entitled to the 1^st Tranche. D2 himself told Mr Alam that “I have a personal commitment to give Yusuf 1.5% of Noble equity (1% now and 0.5% in 2017)”. He said to P that “I just wanted to get it done”.

127.Then came end of May 2016 when the Employment, described neutrally, came to an end. P says that he was fired by D2 during the 26/5/16 Meeting. D2 says that P had tendered his resignation, which he “understands” P did so in the 27 May Morning Meeting.

128.Context is again important. If the Deed of Agreement was not a binding and legally enforceable agreement, P would not be entitled to anything under the same, the 1^st or the 2^nd Tranche. If P had resigned but was not fired, that would be an additional reason why he would not be entitled to the 2^nd Tranche.

129.But as shown by the correspondence and negotiations starting from end of May 2015 and 2016, both P and D2 had been proceeding on the basis that P was entitled to both of the 2 Tranches.

130.In the contemporaneous correspondence over that period, P mentioned a number of times the “decision of the Board”. P says that he was referring to the decision to fire him. D2 suggests that it was the decision to sell the NAES which P refused to accept or implement. I have set out those correspondence above. Read objectively overall and in context, that decision in my view referred clearly to the Board’s decision to fire P. D2’s case is a strained, contrived and unrealistic way of interpreting the correspondence. P has in fact on 2 occasions (on 3 and 8 June 2016) further and specifically said that he had been fired. If he had not been, he would not have so written. Any incorrect statement by him could have been refuted and corrected. As things turned out, there has been none, whether from Mr Alam or otherwise. During cross-examination, D2 claimed that he was busy running a big company in crisis, and that he had no time to write long letters. I do not accept that excuse. It would not have wasted him much time to state, if P had in fact resigned, that P did, so that he was not entitled to the 2^nd Tranche. Not even once had D2 said that. That is inherently most improbable if D2’s version of events were in fact correct. There are further §§4.c. and 4.d. of D2’s 27/5/16 1149 Email and D2’s contemporaneous replies thereto, which are clearly inconsistent with D2 having any belief that the Deed of Agreement was unenforceable or that P had resigned.

131.At that stage, and even came July 2016 after the involvement of RSRB, D2 remained willing to settle the dispute with P by paying him USD 10m or making delivery to P Noble Shares within 30 days of the expiry of the lock-up period. D2 during cross-examination claimed that he was under pressure from the directors to do so. He claimed:

A. I explained that to you already twice. I said the company was in dire straits and we needed desperately to control the rumour and gossip around the company, and in order that he would not create any further problems for us, we should settle with him something. And I was against it, as I said earlier today, but the board insisted or convinced me that it's the best thing to do.

Hence, we made a proposal to him which may not be 100 per cent of what he was expecting, but it certainly was a very considerable contribution to solve the problem.

Q. There was nothing about this so-called discussion in Mr Brough’s witness statement or his evidence, was there?

A. Mr Brough was not there at that time.

Q. I thought you said that the board persuaded you not to go after him?

A. Okay. I don’t know who on the board put the most pressure on me, but I do remember that board members requested me to do that. And very likely Mr Brough was included.

Q. You’re just making this up as you go along, aren’t you?

A. Well, then I think we have nothing more to say.

But none of those appears in his witness statements, which I reject.

132.As to whether P had resigned or was fired:

(a)  The sequence of events is important:

(i)  According to Mr Brough, the 27 May Morning Meeting started at 8:00 am;

(ii)  P did not tender his resignation during that meeting;

(iii)  After the meeting, P issued the 27/5/16 1149 Email;

(iv)  In that email, P asked for the opportunity to review the announcement of his departure before it went out and sought various clarifications in respect of his contractual rights and responsibilities upon departure;

(v)  Shortly afterwards, at 1:08 pm on the same day, Mr Alam emailed P on the wording of the announcement;

(b)  Hence, if he had tendered his resignation, he must have done so during the short gap after the end of the 27 May Morning Meeting and his issue of the 27/5/16 1149 Email;

(c)  There is no evidence that P did. D2’s alleged understanding that P resigned during the 27 May Morning Meeting is not supported by any evidence;

(d)  I find it also intriguing that D2 was content to have left this important matter as a vague understanding in his statement, and saw fit not to check. This reflects adversely upon his credibility and reliability;

(e)  Given the tempo at which things progressed on the morning of 27 May 2016, inherent probabilities point clearly towards a prior decision to remove P as the CEO. This clearly supports P’s case that he was fired by D2 on 26 May 2016, and is against D2’s case that P somehow resigned on 27 May 2016.

133.I have specifically reminded myself of Chen Tek Yee which Mr Manzoni has cited. In my view, all the problems which I have highlighted above cannot possibly be explained by D2’s advanced age.

134.For all the above reasons, I find that D2 is neither an honest nor truthful witness. His evidence is in my view not reliable.

135.Having considered all matters in the round, unless supported by contemporaneous documents or other undisputable evidence, I reject D2’s factual evidence. Further, in cases of differences, I prefer P’s factual evidence to that of D2’s.

136.I will make specific factual findings when considering the issues involved.

K.  Issues

137.It is unfortunate that parties could not, despite directions from this Court, agree upon an agreed list of issues.

138.I have considered the pleadings. I have also considered the lists of issues which parties have separately put forward (“P LOI” and “D2 LOI”). I have also considered the way counsel have respectively developed the issues which they deem germane. In my view, the following issues are determinative of the issue of liability.

K.1.  Whether the Deed of Agreement binding and enforceable

139.In his written closing, Mr Manzoni puts forward as issue 1 what he calls the “Overarching Liability Issue” of whether the Deed of Agreement is legally binding and enforceable. He summarises D2’s stance as follows, that “the Deed is not legally enforceable as it was subject to contract, or more accurately, subject to deed. In other words, the Deed is not a document that was one upon which the parties had intended to create legal relations”[74], and that “this is a case subject to deed. Although D2 agreed, in principle, to transfer shares in NGL to P in consideration of P acting as CEO, there was no intention for the document that P now seeks to enforce (viz the Deed) to be binding. Having lacked the intention, the Deed is not legally enforceable”[75].

140.That Overarching Liability Issue, as developed by Mr Manzoni, covers most of the main relevant issues which Mr Westbrook puts forward in P LOI (in particular issues 1 and 2 therein[76]).

141.I am satisfied that that is indeed the main issue.

K.1.a  Legal principles

142.The following legal principles are relevant.

143.In common form, a deed is stated to be “signed, sealed, and delivered”.

144.But as explained at §7-04 of Cartwright, Formation and Variation of Contracts, 3^rd edn:

The common law required a deed to be written on paper or parchment, and sealed and delivered by the party or parties executing the deed. A signature was not required; nor was a witness; and the deed did not need to be dated in order to be validly executed.

145.The common law, at least in so far as “signed” and “sealed” are concerned, has in Hong Kong been modified by section 19 of the Conveyancing and Property Ordinance (Cap 219) (“C&PO”), that:

(1)  A deed by an individual shall be signed by him.

(2)  A document shall be presumed to have been sealed by an individual if the document signed by him—

(a)  describes itself as a deed; or

(b)  states that it has been sealed; or

(c)  bears any mark, impression or addition intended to be or to represent a seal or the position of a seal.

146.Whilst section 19(1) now requires a deed by an individual to be signed, attestation remains not necessary. The pre-C&PO position, as explained by Godfrey J in Champhon Industrial Ltd v Hight Projects Industrial Ltd (HCMP 3631/1992, 29 December 1992)[77], has remained the same.

147.Under section 19(2), a document shall be presumed to have been sealed if any of sections 19(2)(a) to (c) is fulfilled.

148.That leaves “delivered”:

(a)  As explained in Chitty on Contracts, 35^th edn at §1-107:

“Delivered”, however, in this connection does not mean “handed over” to the other party. It means delivered in the old legal sense, namely, an act done so as to evince an intention to be bound. Any act of the party which shows that he intended to deliver the deed as an instrument binding on him is enough. He must make it his deed and recognise it as presently binding on him.

(b)  There was some discussion in England on the abolition of delivery as a requirement. Whilst that requirement was ultimately largely retained, the reasons which the Law Commission gave for the proposal are useful in understanding the concept of delivery, that[78]:

Originally delivery involved a physical handing over of the deed which obviously signified the intention of the grantor of the deed to be bound by it. However, a deed is now effectively delivered in law ‘as soon as there are acts or words sufficient to shew that it is intended by the party to be executed as his deed presently binding on him’. It is thus essentially a question of the grantor’s intention, but it does not matter whether this intention is communicated to the grantee provided it is in fact evinced by some sufficient act or words. Since delivery no longer requires any physical handing over, a deed may be taken as delivered even when kept with the grantor’s own papers if there is evidence that he evinced an intention to be bound by it. Laymen might well think the word ‘delivery’ here to be a dangerous misnomer as it does not accord with their understanding of the word. This may lead them to believe that until the deed is handed over to ‘the other side’ it is still capable of recall.

(c)  In Wong Yiu Ting v Kwok Wing Chiu [2009] 1 HKLRD 399 which Mr Manzoni cites, Johnson Lam J (as he then was) at §20 explained:

Delivery takes place when the party executing a document intends it to take effect and it is usually inferred from conduct in terms of signing and sealing, see Barnsley’s Conveyancing Law and Practice 4th Edn, p.449. But it ultimately depends on the intention of the executing party, see Bolton Metropolitan Borough Council v Torkington [2004] Ch 66; Longman v Viscount Chelsea (1989) 58 P & CR 189; Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 88.

(d)  Mr Manzoni has also cited Bibby Financial Services Ltd v Richard Magson [2011] EWHC 2495 §335, that:

The critical thing is that the person who has signed the deed must have separately indicated that he intends to be bound by the deed. Mere signature is not enough. Nor is it enough that what looks like a deed has been given to the person who appears to be the beneficiary of it – the issue is not whether the document has been physically handed over to the beneficiary, but whether the person whose deed it is supposed to be intended to be bound by it. The point was explained by Sir Charles Hall V.C. in Watkins v. Nash (1875) LR 20 Eq 262 at page 266:-

“You cannot deliver the deed to the grantee himself, it is said, because that would be inconsistent with its preserving the character of an escrow. But if upon the whole of the transaction it be clear that the delivery was not intended to be a delivery to the grantee at that time, but that it was to be something different, then you must not give effect to the delivery as being a complete delivery, that not being the intent of the persons who executed the instrument.”

149.The concept of delivery in the context of the execution of a deed hence overlaps significantly with the question of intention to create legal relation in the context of a contract under hand (or a simple contract):

(a)  On the question of intention to create legal relations in the context of a simple contract, I have been cited a number of authorities. They include Bonds Group Co Ltd v Kwan Daniel [2024] 1 HKLRD 541, per Cheung JA at §§30-32, 38; Rotam Agrochemical Company Ltd v GAT Microencapsulation GmBH [2018] EWHC 2765, per Butcher J at §§139-141; Lei Shing Hong Trading Ltd v Wong Kwing Keung [2024] HKCFI 2130, per DHCJ Jonathan Wong at §13.16; Yu Man Fung Alice v Chiau Sing Chi Stephen [2021] HKCA 1456 at §§49-50; and Hadley v Kemp [1999] EMLR 589 at 623 to 624;

(b)  I heed the discussion of certain factual presumptions in some of the authorities, and their effects on the incidence of burden of proof depending on whether the case concerned is in the family or commercial context. But as the Court of Appeal in Yu Man Fung observed, it is not profitable to consider the strength of any presumption of fact, nor will considering who bears the onus of proof be generally determinative, or even very helpful;

(c)  In gist, the question of intention to create legal relations is a question of fact, to be inferred from the terms of the agreement and the surrounding facts and circumstances. The test is an objective one. As explained recently by Cheung JA in Bonds Group Co Ltd at §§30-32 (emphasis being original):

30.  … ultimately the question whether an agreement consists of the essential terms and is binding, or put it in another way, whether the parties intended to create legal relations, is fact-specific. It is a matter of construction of the agreement in the light of the context or factual matrix of the case. Hence, in British Steel Corp v Cleveland Bridge & Engineering Co Ltd [1984] 1 All ER 504, Robert Goff J (as he then was) stated the inquiry is to be determined by reference to the circumstances of the particular case. He held at p.509:

Now the question whether in a case such as the present any contract has come into existence must depend on a true construction of the relevant communications which have passed between the parties and the effect (if any) of their actions pursuant to those communications. There can be no hard and fast answer to the question whether a letter of intent will give rise to a binding agreement: everything must depend on the circumstances of the particular case. …

As a matter of analysis the contract (if any) which may come into existence following a letter of intent may take one of two forms: either there may be an ordinary executory contract, under which each party assumes reciprocal obligations to the other; or there may be what is sometimes called an ‘if’ contract, ie a contract under which A requests B to carry out a certain performance and promises B that, if he does so, he will receive a certain performance in return, usually remuneration for his performance. The latter transaction is really no more than a standing offer which, if acted on before it lapses or is lawfully withdrawn, will result in a binding contract. (emphasis added)

31. Robert Goff J further elaborated at p.510 the difficulties of construing the letter of intent in that case as an executory contract:

… It is only necessary to look at the terms of CBE’s letter of intent in the present case to appreciate the difficulties. In that letter, the request to BSC to proceed immediately with the work was stated to be ‘pending the preparation and issuing to you of the official form of sub-contract’, being a sub-contract which was plainly in a state of negotiation, not least on the issues of price, delivery dates, and the applicable terms and conditions. In these circumstances, it is very difficult to see how BSC, by starting work, bound themselves to any contractual performance. No doubt it was envisaged by CBE at the time they sent the letter that negotiations had reached an advanced stage, and that a formal contract would soon be signed; but, since the parties were still in a state of negotiation, it is impossible to say with any degree of certainty what the material terms of that contract would be. I find myself quite unable to conclude that, by starting work in these circumstances, BSC bound themselves to complete the work. In the course of argument, I put to counsel for CBE the question whether BSC were free at any time, after starting work, to cease work. His submission was that they were not free to do so, even if negotiations on the terms of the formal contract broke down completely. I find this submission to be so repugnant to common sense and the commercial realities that I am unable to accept it. It is perhaps revealing that, on 4 April 1979, BSC did indeed state that they were not prepared to proceed with the contract until they had an agreed specification, a reaction which, in my judgment, reflected not only the commercial, but also the legal, realities of the situation.

32. On the issue whether the parties intended to create legal relations, Aikens LJ in Barbudev v Eurocom Cable Management Bulgaria EOOD [2012] 2 All ER (Comm) 963 stated that one must look at the objective conduct of the parties as a whole and emphasised again that one must look at the whole circumstances of the case:

[30] The legal principles to be applied to these issues are not in doubt. On the issue of whether the parties intended to create legal relations, the leading case is now RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG. The court has to consider the objective conduct of the parties as a whole. It does not consider their subjective states of mind. In a commercial context, the onus of demonstrating that there was a lack of intention to create legal relations lies on the party asserting it and it is a heavy one.

[31] If, as I conclude below, the agreement is found to be wholly in writing (which must be a question of fact), then the exercise of construction is a ‘unitary exercise’ in which the court must consider the language used and ascertain what a reasonable person (ie one with all the background knowledge reasonably available to the parties in the situation that they were in) would have understood the parties to have meant. The court must have regard to all the relevant circumstances and, in a business context, it should prefer the construction that is more consistent with business common sense.

[32] On the question of an enforceable contract or not, it is for the parties to decide at what stage they wish to be contractually bound. To use the vivid phrase of Lord Bingham of Cornhill (as Bingham J) the parties are ‘masters of their contractual fate’. They can agree to be bound contractually, even if there are further terms to be agreed between them. The question is whether the agreement is unworkable or fails for uncertainty. However, where commercial men intend to enter into a binding commitment the courts are reluctant to conclude that such an agreement fails for uncertainty.

150.In his written closing[79], Mr Manzoni has also cited a number of “subject to contract cases” which he submits belong to a “particular subset of cases which tests whether there is intention to create legal relations”. They include Halsbury’s Laws of England (5^th edn, 2019) Vol 22 §68; RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG [2010] 1 WLR 753 §47; British Steel Corp v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504 511h-j; and Raymond Bieber v Teathers Ltd [2014] EWHC 4205 (Ch) §14. I have considered them.

K.1.b  The focus, and the factual matrix reminded

151.First off, I reiterate the gist of this issue. The key, as highlighted and stressed by Mr Manzoni[80], “is whether D2 intended the Deed to be legally binding.”

152.I have considered the Deed of Agreement and all evidence in the round. I have also considered the law discussed above. I am satisfied that, save this issue on D2’s intention to be legally bound, the Deed of Agreement is legally valid and enforceable.

153.I now focus on this issue of intention. I focus upon D2’s intention at the time when the Deed of Agreement was entered into. To ascertain that, the full factual matrix will have to be considered. The test is an objective one.

154.In support of his contention that D2 did not have the intention to be bound, Mr Manzoni has put forward a number of specific matters. He submits[81] that:

When assessing whether there was such requisite intention, the Court is invited to take into account each of the following factors as part of the overall factual matrix. While it is accepted that these factors alone do not invalidate the Deed …, it is submitted that all of these factors show that the parties did not intend for the Deed to be final and binding …

155.Those specific factors raised by Mr Manzoni relate to certain specific aspects of parties’ pre-contractual negotiations and post-contractual conduct.

156.I will consider those specific factors. But before doing so, I point out the following matters:

(a)  Whilst those specific factors are relevant, it is important not to lose sight of the overall and full factual matrix;

(b)  I have set out above all the relevant contemporaneous documents and correspondence. I have also, when considering D2’s credibility and reliability, discussed them in some detail. I repeat those discussions, and in particular those in §§120 to 131 above;

(c)  Importantly, in none of the contemporaneous correspondence has D2 ever said that what they had agreed upon was only an agreement in principle or gentleman’s agreement, or that the Deed of Agreement was not a valid deed and was legally unenforceable. The contemporaneous documents and conduct in fact suggest objectively the contrary;

(d)  There can be cases where a party’s contrary belief may not adversely affect the merits of their case. A typical example is when that party runs a case on law that, despite their belief to the contrary, the law is against the other side’s case. But this is not one of them. D2 is not claiming any factors vitiating his agreement or parties’ consensus. Nor is he suggesting any lack of formality independent of his intention. He is suggesting that he did not intend to be bound by the Deed of Agreement;

(e)  There is further the question of how the Executed Version came about. I have explained above why I am of the view that D2’s case and evidence in this regard are utterly incredible. I have also pointed out the significance of the 13/4/15 D2 Email;

(f)  I have considered all evidence in the round. I reject specifically D2’s evidence as to how he claimed the Initialled Version and Executed Version came about. His evidence in those regards is at odds with common sense, inherently most improbable, and is inconsistent with contemporaneous documents and conduct;

(g)  As to the circumstances in which the Executed Version was signed, I specifically accept P’s evidence and find that D2 signed the Deed of Agreement on 20 November 2011 in duplicate in front of him. I have considered in the round its contents. Whilst there are some blanks, the nature of the information that has been left blank does not negate its binding effect, and does not indicate absence of agreement between parties. I specifically accept P’s following evidence in this regard[82]:

I met with Mr Elman on Sunday 20 November 2011 and he executed the Deed of Agreement in front of me (in duplicate) which I dated the day he signed it. He kept one copy and I kept one. I can no longer recall where we met on this specific occasion, although most of our meetings took place at the Hong Kong Cricket Club which was close to our houses. Although there are a few empty square brackets in the Deed of Agreement, it was not intended that we would revisit the Deed of Agreement. This was the final version as far as Mr Elman and I were concerned, and any missing details were considered irrelevant by Mr Elman and me as they did not affect the true intention of the Deed of Agreement and were well known to us. To be specific, the only missing details concerned the addresses of Fleet and Mr. Elman, which we all knew … and the number of shares issued by Noble and the number owned by Fleet and Mr. Elman’s interest in them (as he had claimed) which were public information and could be found e.g. in Noble’s latest Annual Report.[83]

(h)  By accepting P’s evidence on execution of the Deed of Agreement, I am not equating mere execution with “delivered” or “delivery” in the technically sense. There can be difference between the 2 concepts[84]. But the fact that P and D2 specifically met after a long process of negotiation to sign the Deed of Agreement in duplicate is one relevant factor that points objectively towards the conclusion that D2 did intend the same to be legally binding.

157.I now, having reminded myself of the full factual matrix, consider the specific factors which Mr Manzoni has raised.

K.1.c.  The pre-contractual negotiations raised

158.Mr Manzoni has raised a number of points under this topic.

159.First, Mr Manzoni submits that:[85]

… P admitted under cross-examination that certain terms that P and D2 had agreed on did not make its way into the Deed. This strongly suggests that the Deed is not final as it does not contain all the terms that the parties had agreed upon.

160.Central to this point are the 3 things which P in his email of 7 October 2011 clarified. I have recited its contents above. Mr Manzoni submits that the third point dealt which therein, albeit agreed upon, did not find its way into the Deed of Agreement.

161.I have considered the nature of that third point. I have considered P’s relevant oral evidence which Mr Manzoni and Mr Westbrook have respectively cited and stressed upon in their written submissions. Most relevantly, P explained, which I accept, that:

So I know for a fact that the agreement we signed was not a draft and it was a final agreement, so if a point that was referred to earlier is not in that agreement, it’s either a function of the fact that we forgot to put it in or because Richard and I spoke about it and decided not to put it in, but I can’t go back -- I don’t know why that specific point is not in there.

162.In my view, that third point is a matter of detail. I accept Mr Westbrook’s submissions that it is not surprising that after the lapse of time, P could no longer remember the precise reason why it had been left out. I also accept his submissions that as a matter of commercial sense, it is not surprising that terms initially agreed upon do not all find their way into the final agreement, and that is particularly so when parties are in a rush to finalise the agreement, as P and D2 were in the present case.

163.Second, Mr Manzoni submits that:[86]

… the Deed contains a number of material inaccuracies and omissions. Indeed, the document itself lacks the hallmark formality of a deed.

164.I have set out above the terms of the Deed of Agreement. I have described the presence of certain blanks (or empty square brackets) therein.

165.Mr Manzoni fairly accepts[87] that none of those matters by themselves render the Deed of Agreement unenforceable, but are, he submits, glaring when viewed against the background that it was P who requested that the agreement be more formally documented.

166.I have considered the nature of the omissions and blanks. They are factual matters. They could be ascertained and inserted after execution. Against the background of parties endeavouring to get the agreement finalised in a hurry, I do not find the omissions glaring. Nor do I find them indicative of any absence of intention to be bound.

167.Third and fifth, Mr Manzoni submits that:[88]

… the Deed wrongly records Fleet Overseas to be the legal owner of the NGL shares, when in fact, Fleet Overseas was the trustee of the discretionary trust which holds the shares on behalf of D2.

… if D2 is right that P’s lawyers had all the information it needed to establish the precise structure through which D2 had his deemed interest in the share, P would have known that D2 was not a beneficiary of the discretionary trust which held the shares in NGL. To iron out any agreement, it would have been necessary to involve other stakeholders, not least the beneficiaries of the trust.

168.I have set out the contents of Note 1 above, which is the core basis of these points which D2 relies upon. I have also set out the relevant correspondence between the parties. I have also considered the factual analysis which Mr Manzoni has undertaken down to very fine details and set out at §§110.5 to 110.10 of his written closing. But the important facts remain these, that P had in the correspondence asked D2 whether “stock you own are in scripted or scriptless form”, to which D2 answered “scriptless”. P asked for the address of Fleet Overseas, which D2 provided. D2 in the correspondence and documents used terms like “RSE to give 1% of his holding” and “Noble Shares that I own or control”. D2 had never said over correspondence that D1 was not the right party, or that D1 did not own the shares, or that he could not procure D1 to do so. I accept P’s evidence that he had not read Note 1. In any event, whilst what Note 1 described might have been the strict legal position, given the above correspondence between parties, it is hardly surprising that Recital (A) was drafted in the way it was. I do not find Recital (A) indicative of any absence of intention to be bound.

169.Fourth, Mr Manzoni submits that:[89]

… the manner in which P says that the Deed was allegedly executed also raises more questions than answers.

Those alleged questions are principally why P did not call Ms Duncan[90], for which Mr Manzoni invites this Court to draw an adverse inference against P, and why P, “having gone through the trouble of having his own signature witnessed, did not ensure that D2’s execution was fool-proof”[91].

170.The drawing of adverse inference is not an automatic exercise. There is no presumption for an adverse inference to be drawn from the mere absence of a witness or documents. Whether an adverse inference should be drawn in a particular case is a matter of discretion for the trial judge based on all the relevant circumstances of the case including the quality of the other evidence.

171.I have considered the totality of the evidence. P’s evidence on the facts leading to the execution of the Executed Version is inherently probable, and is consistent with contemporaneous documents and conduct. D2’s case on how the Initialled Version came about is in my view utterly incredible. His case on how the Executed Version came about is essentially one of fraud. But he has not pleaded one. There is no property in witnesses. D2 could have called Ms Duncan himself. I refuse to draw any inference adverse to P for not calling Ms Duncan. I accept his evidence that D2 executed the Deed of Agreement in front of him. I have recited above his evidence in this regard.

172.Further, the relationship between P and D2 was obviously good and trusting at the time when the Deed of Agreement was executed. P would not have anticipated D2 subsequently trying to deny ownership of his signatures. He simply would have no contemporaneous basis to try to ensure that D2’s execution of the document was “fool-proof”.  

173.Sixth, Mr Manzoni submits that:[92]

… it is submitted that a concluded side agreement would have needed to be disclosed to the SGX …

174.There is no expert evidence on this issue. I accept Mr Westbrook’s submissions that this alone is fatal to the point.

K.1.d.  Post-contractual conduct

175.Mr Manzoni accepts that post-contractual conduct is relevant when it comes to ascertaining whether parties intended to be legally bound.

176.Mr Manzoni however submits that such conduct in the present case carries less weight, because it has to be viewed through the prism that there had been an agreement in principle. He submits that D2 has been consistent that there had been an agreement in principle (or gentleman’s agreement). He submits that that explains the context and background to the post-contractual conduct between the parties.

177.I reject those submissions. I have set out parties’ post-contractual conduct and communications in detail above. Viewed objectively, both P and D2 clearly regarded the Deed of Agreement as legally binding. I point, without trying to be exhaustive, in particular to the 13/4/15 D2 Email, and D2’s email of 2 September 2015 to Mr Alam. During that period, D2 had never even claimed that he did not have any legal liability to perform the Deed of Agreement. If there were only an agreement in principle or gentlemen’s agreement between P and D2 which D2 did not intend to be legally enforceable until the conclusion of a deed, inherent probability suggests that D2 would immediately have stated so. He did not. Nor did RSRB in their letter in reply of 22 July 2016.  

178.In my view, parties’ conduct, D2’s in particular, suggests clearly and objectively that D2 had intended, and did regard, the Deed of Agreement to be and as being legally binding.

K.1.e.  Conclusion on the first issue

179.I have considered the totality of the evidence. I have considered all that had taken place and passed between parties. I have carefully considered at the same time and in the round the specific matters which Mr Manzoni has raised, individually and collectively. I am of the view that the entirety of the circumstances objectively points clearly towards the conclusion that parties, D2 included, did have the intention to be legally bound by the Deed of Agreement. I conclude further for the avoidance of doubt that this is not a case of “subject to contract” or “subject to deed”. The contemporaneous documents and conduct show objectively and clearly that at the time when the Deed of Agreement was executed, both P and D2 intended it to be legally binding. I reject D2’s case and assertion to the contrary.

180.I have considered the pleadings and counsel’s submissions as a whole. I see no other matters which derogate from the legal enforceability of the Deed of Agreement.

181.I conclude that both P and D2 intended the Deed of Agreement to be binding, that it had been delivered, and that the Deed of Agreement is legally enforceable.

182.I find against D2 on the Overarching Liability Issue.

K.2.  The “Resignation Issue”

K.2.a  The issue explained

183.The Resignation Issue, as Mr Manzoni calls it, relates to the Resignation Defence.

184.At §121 of his written closing, Mr Manzoni submits that:

Even if the Court finds against D2 on the Overarching Liability Issue, D2 maintains that there is no breach under Clause 3.2 with respect to the 0.4% Shareholding and P is not entitled to the Second Tranche Shares.

185.Mr Manzoni summarises the bases of his submissions as follows (his emphasis):[93]

… there is an insurmountable gap in the evidence, which precludes P from discharging his burden of showing that P was fired …. Specifically:

8.1  P cannot pinpoint just when a board decision was made to fire him. There is no evidence showing that a board decision had been made.

8.2  Nor can P demonstrate that D2 had made the decision to fire him, which was subsequently ratified or “rubber-stamped” by the board.

8.3  While the burden is not on D2, the background facts most sensibly lead to a conclusion that P had in fact resigned.

186.I have set out Clause 3.2 of the Deed of Agreement above.

187.Mr Manzoni submits that the operation of Clause 3.2 was subject to 3 conditions precedent:

(a)  Noble Executive “terminates the Employment for any reason other than gross misconduct on the part of [P]”;

(b)  The termination occurred after 1 January 2016; and

(c)  P was no longer in employment on 2 January 2017.

188.D2 does not dispute that the last day of P’s garden leave was on 30 November 2016 ((c) above), and that the events that triggered P’s leave occurred in May 2016 ((b) above).

189.The only issue which D2 disputes, as summarised by Mr Manzoni, is whether Noble Executive terminated the Employment ((a) above).

K.2.b.  D2’s submissions

190.Mr Manzoni has made a number of highly elaborate submissions, as follows: the burden is on P to show that he was fired. That is a fact-sensitive issue. P’s case is however unclear as to whether he was fired by D2 or by the Board. P faces evidential hurdles either way. Mr Manzoni then embarks upon an analysis of different possibilities and scenarios (that spans over 30 pages):

(a)  If P says he was fired by the Board, he is unable to show that there had been a board decision to that effect, whether before or at the 26/5/16 Meeting, or whether at or after the 26/5/16 Meeting;

(b)  If P says that he was fired by D2, he faces both evidential and legal problems:

(i)  It was impossible for D2 to fire P unilaterally;

(ii)  This Court is further invited to accept D2’s evidence as to what happened during the 26/5/16 Meeting;

(iii)  There is an evidential blackhole in respect of any case of ratification by the Board;

(c)  Whilst the burden is not on D2 to show that P had resigned, the evidence supports “D2’s story that P in fact resigned”[94] and D2’s claim that it was P who himself tendered his resignation; and

(d)  By approving the wording of the draft General Announcement, P was in any event estopped by convention to contend otherwise.

K.2.c  Findings of facts

191.Relevant to this issue, I first make the following observations and findings of facts. I state that before reaching those observations and findings, I have considered all the evidence in the round:

(a)  I have, when considering D2’s credibility and reliability, discussed the evidence relevant to this Resignation Issue. I repeat those discussions;

(b)  I accept P’s evidence, and so find, in relation to what happened during the 26/5/16 Meeting. I specifically accept his evidence at §§94 and 95 of P/WS#1 that:

94.  A Board meeting was scheduled for the morning of 26 May 2016. When I saw the meeting added to my calendar, I sent a message to Mr Elman to ask him if he wanted me to prepare anything for the meeting. He replied “no”. Right before the Board meeting was to commence it was cancelled and Mr Elman called me into his office instead. His office was right beside mine.

95. I walked into Mr Elman’s office and sat down at his desk. He then told me that he had decided to terminate my employment and that Board Members [Mr Pratt] and [Mr Brough] had led the decision. I was surprised and shocked by this decision. I asked Mr Elman why my employment was being terminated to which Mr Elman told me the Board believed that I had not followed their directive to sell Noble Americas Energy Solutions, that there were differences of opinion as to how the Company was to be run in the future, and that their decision was final. Given that my employment contract provided that the notice period for termination was 6 months (except in circumstances of gross misconduct, which did not apply in this case), I understood that my employment would terminate on or around 30 November 2016.

(c)  I find that P had never tendered any resignation. No written resignation by P has been disclosed or discovered by D2;

(d)  I find that P’s evidence about his Employment having been terminated is consistent with contemporaneous conduct and documents (which I have detailed above), and is not inherently improbable;

(e)  Importantly, had he not been told by D2 of the termination of his Employment during the 26/5/16 Meeting:

(i)  he would not have told his wife on that afternoon that D2 had fired him. I specifically reject any suggestion that he lied to his wife;

(ii)  he would not have at §4(d) of the 27/5/16 1149 Email addressed the 2^nd Tranche and said that “according to the contract if I get fired …”;

(iii)  he further would not have said expressly in his contemporaneous correspondence with Mr Alam (and in particular his emails of 3 June and 8 June 2016) that he had been fired. D2 on 27 May 2016 asked P to work with Mr Alam on his contractual rights and responsibilities, and said that he (Mr Alam) “has been advised”. I find it telling that neither D2 nor Mr Alam had ever retorted and said that P had not been fired, but that he himself resigned;

(f)  I find that P’s references to the “decision of the Board” or “decision” in various emails (specifically in the 26/5/16 1650 Email, the 27/5/16 1149 Email, the 27/5/16 1322 Email and the 12/6/16 0533 Email, as underlined above) were references to the Board’s decision to terminate his Employment. This in my view is the only sensible interpretation upon consideration of the full context;

(g)  I find, as I have observed above, that D2’s interpretation of the contemporaneous correspondence is strained, contrived and unrealistic. I reject D2’s understanding that P tendered his resignation during the 27 May Morning Meeting. That understanding is not supported by Mr Brough’s evidence. P did not tender any resignation during that meeting;

(h)  Whilst Mr Brough in PB/WS at §14 says that “While [P] leaving NGL in the strained circumstances seemed likely, it was [P] who offered and then decided to resign as he considered doing so to be in his own best interests”, he had no personal knowledge of P having actually resigned. He himself said that the matter was a bit of a mystery to him;

(i)  In respect of the General Announcement and the Extract Minutes, I accept Mr Westbrook’s submissions that at a time when NGL was undergoing a difficult spell, it is understandable for it not to announce to the public the termination of its CEO. P’s cooperative attitude in protecting NGL by agreeing to the wording of the General Announcement is not surprising, is consistent with the contemporaneous correspondence, and is inherently probable. I accept further Mr Westbrook’s submissions that the Extract Minutes would then have been drafted in line with the General Announcement. In fact, as can be seen from the contemporaneous correspondence between Mr Alam and P, even after the General Announcement, P continued to state that he had been fired, and Mr Alam and D2 had never contradicted him;

(j)  I find that the contents of the General Announcement and the Extract Minutes about P having tendered his resignation did not reflect the true fact. The true fact was that his Employment had in fact got terminated;

(k)  I repeat P’s evidence which I accept, that D2 told him during the 26/5/16 Meeting that “he had decided to terminate my employment and that Board Members [Mr Pratt] and [Mr Brough] had led the decision”. P asked why, to which D2 replied “the Board believed that I had not followed their directive to sell Noble Americas Energy Solutions, that there were differences of opinion as to how the Company was to be run in the future, and that their decision was final”. I repeat also the subsequent contemporaneous correspondence which I have summarised above. I reiterate my finding that P’s references to the “decision of the Board” or “decision” in various emails were references to the Board’s decision to terminate his Employment. I stress again P’s express statements that he had been fired. There was no retort from D2, Mr Alam, or any director. From all the evidence, I infer and find that P’s Employment was indeed terminated by Noble Executive with the authority of the Board, and it was conveyed to him by D2 during the 26/5/16 Meeting.

K.2.d  Back to D2’s submissions

192.I have considered D2’s submissions in the round. I have also considered the evidence highlighted by Mr Manzoni in those 30 odd pages of submissions of his. My findings above are dispositive of those submissions.

193.In any event:

(a)  I repeat Clause 3.2 of the Deed of Agreement. The triggering words are “in the event that Noble Executive terminates the Employment for any reason other than gross misconduct”;

(b)  There is no express requirement that the termination by Noble Executive had to be a lawful or valid one. That is in any event not D2’s pleaded case;

(c)  I accept Mr Westbrook’s submissions that P’s entitlement under Clause 3.2 arises even if the termination was strictly speaking not properly authorised by NGL, the crucial question being whether P chose to leave or was forced to leave;

(d)  In the present case, and as I have found, P had never resigned. He himself did not choose to leave. It was Noble Executive who terminated the Employment. The exact mechanism and legal basis of the termination are not prerequisite of P’s entitlement under Clause 3.2.

194.In respect of the allegation of estoppel by convention:

(a)  As explained in First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd (2012) 15 HKCFAR 569 at §79, an estoppel by convention arises when

(1)  the parties entered into some transaction or legal relationship on the basis of an assumption that was shared by or common to them both, and it was the element of commonality of the assumption that marked out estoppel by convention as a distinct form of estoppel;

(b)  I reject D2’s contention that there was a common assumption that P had resigned. My finding is that both sides knew that P had not resigned, just that his departure was announced as such to lessen its impact upon NGL;

(c)  In my view, the allegation of estoppel fails in limine.

K.2.e  Conclusion on the Resignation Issue

195.For the reasons set out above, I rule that P had never tendered any resignation. He had never resigned. P’s Employment was terminated by Noble Executive with authority of the Board, and conveyed to him by D2 during the 26/5/16 Meeting.

196.I find against D2 on the Resignation Issue.

K.3.  The Misrepresentation Issue

197.I have set out above P’s case based on misrepresentation.

198.That claim is alternative to P’s claim based on the Deed of Agreement. It is pleaded to cater for the eventuality of this Court finding that “D2 signed the Deed without the intention to create a binding contract”[95].

199.Given my conclusions on the Overarching Liability Issue and the Resignation Issue, the alternative claim based on misrepresentation is not engaged. I will hence in relation to that alternative claim only make the following brief observations:

(a)  If necessary, on the totality of the contemporaneous correspondence and D2’s execution of the Deed of Agreement which I have found, I would make the following findings of facts:

(i)  D2 clearly had in fact made the representations pleaded at §§1, 2, 2A and 2B of the RASOC. The existence of Note 1 is not inconsistent with D2 having made those representations;

(ii)  On D2’s own case, those representations were false;

(iii)  Those representations were made by D2 with knowledge that they were false, or that he was reckless as to the falsity, not caring whether the representations were true or false;

(iv)  D2 had the intention that the representations should be acted upon by P;

(v)  P acted on the faith of the representations pleaded at §§1 and 2 of the RASOC, and was induced thereby to sign the Deed of Agreement and enter into the Employment;

(b)  On the question of damage, I would however if necessary find against P’s case as pleaded:

(i)  At §32 of his RASOC, P pleads that:

By reason of the said fraudulent, alternatively negligent, misrepresentations, [P] has suffered loss and damage, as particularized in paragraphs 18 to 19 and 23 to 24 above, whereby [P] is entitled, by an award of damages, to be put into the position in which he would have been, if the said representations had been true.

(ii)  P is hence claiming in effect a contractual measure of damages for tortious misrepresentation;

(iii)  But the measures of damages for contract and tort are not the same. Mr Manzoni has cited 2 authorities to illustrate the point:

(1)  Long Year Development Ltd v Tse Fuk Man Norman [1991] 2 HKC 393, where Deputy Judge Andrew Li QC (as he then was) at 408B-C considered the correct measure of damages under section 3(1) of the Misrepresentation Ordinance (Cap 284), and explained:

Accordingly, I hold that the measure of damages for s 3(1) of the Ordinance is the same as that for deceit.

However, it is essential to remember that the measure of damages for deceit is the tortious measure. Damages are awarded on the basis that the plaintiff is to be put in the position he would have been in, had the representation not been made. The measure of damages is not the contractual one of putting the innocent party in the same position he would have been in if the representation had been true.

(2)  Joytex Development Ltd v Super Homes Ltd [2018] HKCFI 2286 at §142, per DHCJ Alexander Stock SC, that:

Pursuant to section 3(1) of the Misrepresentation Ordinance, damages are available in respect of a non-fraudulent misrepresentation which induces a contract, on the same basis as for the tort of deceit. Damages are awarded so as to put the plaintiff in the position it would have been in, had the representation not been made.

(iv)  At §219 of his written closing, Mr Manzoni submits that:

A tortious measure would involve pleading a counterfactual loss of what P had given up by entering into the Deed, such as P’s remuneration had he continued to stay at Goldman Sachs. But P has pleaded nothing of the sort. Save for a post-dated letter (see §48 above), there is also no evidence of P’s continued prospective remuneration had he stayed in Goldman Sachs in evidence.

(v)  There is in my view clear force in those submissions;

(vi)  With reference to that analysis, Mr Westbrook submits[96] that:

However, this analysis ignores the peculiar facts of this particular case. P is not saying, if he had not been induced by the Misrepresentations over the FOC transfer of shares, that he would have stayed at GS and not joined NGL; he is saying that if the Misrepresentations regarding the true ownership of the NGL shares had not been made, he would have discovered the true position, which accordingly would have found its way into the wording of the Deed …  He would still have joined NGL and would then have had the benefit of a binding deed to deliver the promised shares, as and when they became due.

(vii)  Irrespective of the validity of those submissions of Mr Westbrook’s, that is simply not P’s case as pleaded in his RASOC (and in particular §32 thereof, as reproduced above);

(viii)  I would hence if necessary hold that P has failed to prove damage in relation to his alternative claim.

K.4.  The Quantum Issue

200.The final issue which Mr Manzoni has framed in his written closing is the Quantum Issue.

201.I consider the Quantum Issue in the context of P’s contractual claim based on the Deed of Agreement, which I have found to be legally binding.

K.4.a.  Quantum in relation to the 2^nd Tranche

202.I consider first of all the 2^nd Tranche.

203.As I have recorded above, P’s claim in relation to the 2^nd Tranche is now confined to §(G) of the Prayer, in the sum of HKD 47,623,900.

204.Particulars of that sum can be found under §23 of the RASOC, that:

Particulars of the Plaintiff’s loss and damage

Value of 52,283,276 fully-paid Noble Shares as at the date of breach, being 31 December 2016 @ SGD 0.17 x 52,283,276 = SGD 8,888,157. At the exchange rate prevalent on 31^st December 2016 being 5.35813 this equates to HKD 47,623,900.

205.Mr Manzoni accepts both the date of assessment and the calculations as set out in that paragraph, such that the damages for the 2^nd Tranche is the pleaded amount of HKD 47,623,900.

206.In his written reply[97], Mr Westbrook also states that parties are in agreement that the date of assessment of the 2^nd Tranche should be 31 December 2016, with a value of SGD 8,888,157.

207.Subject to the currency to be entered in the Judgment, I assess P’s damage in relation to the 2^nd Tranche accordingly.

K.4.b.  Quantum in relation to the 1^st Tranche

208.I now consider the 1^st Tranche.

209.As I have also recorded above, P’s claim in relation to the 1^st Tranche is now confined to §(C) of the Prayer, in the sum of HKD 402,278,854.

210.Particulars of that sum can be found under §18 of the RASOC, that:

Particulars of the Plaintiff’s loss and damage

Value of 63,887,170 fully-paid Noble Shares as at the date of breach, being 1 February 2015 @ SGD 1.10 x 63,887,170 = SGD 70,275,887. At the exchange rate prevalent on 1 February 2015 being 5.72428 this equates to HKD 402,278,854.

211.The date of 1 February 2015 is taken from Clause 2.1 of the Deed of Agreement (I will hence call it the “Clause 2.1 Date”), which stipulates that the 1^st Tranche shall be transferred “no later than 30 days from 2 January 2015”.

212.D2 does not accept that the Clause 2.1 Date is the appropriate date of assessment. He puts forward 4 alternative dates, which Mr Manzoni sets out and summarises in the Annex to his written submissions, as follows (the “Event” column stating the bases for putting forward the corresponding dates, and the “Routes” inserted just for ease of reference):

Date	Event	Share Price [C13/213]	1% Shareholding	1% in SGD	Exchange SGD:USD[98]	1% in USD
1.2.2015	Due date under Clause 2.1	1.100	63,887,170	70,275,887	0.7395	51,969,018.44
14.4.2016	Route 3: Equitable Forbearance/ Promissory Estoppel	0.435	63,887,170	27,790,919.39	0.734	20,398,534.83
18.9.2016	Route 2: First date P would have sold his shares	0.1390	63,887,170	8,880,316.77	0.7310	6,491,511.56
31.12.2016	Route 1: After the 2016 Rights Issue	0.1700	63,887,170	10,860,819.07	0.6913	7,508,084.22
6.2.2017	Route 4: Date P provided his account details	0.1790	63,887,170	11,435,803.61	0.6992	7,995,913.88

213.I will consider the Routes in turn.

K.4.b.i  Route 1 and Route 3

214.As can be seen, Route 1 and Route 3 can be considered together.

215.As developed by Mr Manzoni, Route 1 leads to the date of 31 December 2016 (the “Route 1 Date”) in the following steps (“Route 1 Steps”):

(a)  The combination of the No Urgency Email (14 April 2015) and the No Rush Email (14 October 2015) operated as an equitable forbearance, which suspended D2’s obligation to transfer the 1^st Tranche;

(b)  The transfer was next mentioned in P’s email of 14 April 2016, which lifted the suspension;

(c)  But the evidence suggests that P would not have sold his shareholding until, at the earliest, 18 September 2016;

(d)  NGL on 3 June 2016 entered into an underwriting agreement to raise equity (the “Underlying Agreement”), under which D2 agreed to a lock-up period (the “Lock-up” and the “Lock-up Period”) whereby he would not transfer the NGL Shares he had a deemed interest in to third parties until after 30 November 2016;

(e)  Accordingly, by reason of the Lock-up, the earliest date that D2 could have reasonably been expected to transfer the 1^st Tranche to P was 31 December 2016, being a reasonable period after the end of the Lock-up Period.

216.The validity of the Route 1 Date as the assessment date hinges on the proposition that the combination of the No Urgency Email and the No Rush Email having operated as an equitable forbearance.

217.In Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 at §§55 and 56, Ribeiro PJ summarised the requirements of promissory estoppel as follows:

55.  A promissory estoppel may be said to arise where (i) the parties are in a relationship involving enforceable or exercisable rights, duties or powers; (ii) one party (the promisor), by words or conduct, conveys or is reasonably understood to convey a clear and unequivocal promise or assurance to the other (the promisee) that the promisor will not enforce or exercise some of those rights, duties or powers; and (iii) the promisee reasonably relies upon that promise and is induced to alter his or her position on the faith of it, so that it would be inequitable or unconscionable for the promisor to act inconsistently with the promise.

56. While it is necessary for the purposes of exposition to identify the separate elements of the doctrine, it should be borne in mind that when applying them to the facts, each element does not exist in its own watertight compartment to be kept separate from the others. Each element acquires its meaning and content in the context of the other elements. This was emphasised by Robert Walker LJ in Gillett v Holt in relation to proprietary estoppel in the following terms:

… the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. … [The] quality of the relevant assurances may influence the issue of reliance … reliance and detriment are often intertwined, and … whether there is a distinct need for a “mutual understanding” may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.

218.On the sufficiency of the promisor’s promise or assurance:

(a)  Ribeiro PJ explained further and emphasised at §§59 and 60 that:

59.  While the promise need not be express, the meaning of the promise conveyed by the promisor’s words or conduct must be clear and unequivocal. He must make it clear that he is promising not to enforce the relevant rights or powers. This message must be conveyed with a clarity similar to that needed to vary a contract. Whether there is sufficient clarity is to be assessed objectively by the court.

60.  The court will seek to ascertain the meaning in substance of the promise. It is the substance of its meaning that must be clear and unequivocal …

(b)  In Wilken and Ghaly on The Law of Waiver, Variation and Estoppel, 3^rd edn, at §8.17, the learned authors commented:

8.17.  … A finding that the alleged promisee might reasonably have arrived at that conclusion is insufficient. Put another way, there could only have been a clear and unequivocal representation if that party could not reasonably have arrived at any other conclusion.

219.I have set out above the contents of the No Urgency Email and the No Rush Email.

220.In my view, and for the following reasons, those 2 emails are a long way from having the sufficient clarity and unequivocalness to ground any equitable forbearance or promissory estoppel:

(a)  By the time P issued the No Urgency Email, the Clause 2.1 Date had passed, and D2 was already in breach;

(b)  P raised the issue by email of 26 March 2015. I have set out that email above. P’s language was respectful, but specifically said that the transfer “was meant to happen by end of Jan”;

(c)  D2 replied via the 13/4/15 D2 Email. I have referred to that email a number of times above. Viewed objectively, D2 via that email acknowledged his liability for the transfer. He suggested that the matter be sorted out “today or tomorrow” or “around now”;

(d)  It was in response to the 13/4/15 D2 Email when P issued the No Urgency Email;

(e)  There is evidence that during that period, NGL was in a bit of a crisis as a result of attack by a series of anonymous reports published by Iceberg which accused it of inter alia fraud, false accounts and valuation inflation;

(f)  I have referred to above the email chain between variably P, D2 and Mr Alam between 2 September and 14 October 2015. On 14 October 2015, D2 himself raised the transfer again with Mr Alam, and it was in reply when P issued the No Rush Email, but prefacing the words “No rush” with “Let’s talk tomorrow”;

(g)  Viewed objectively, the No Urgency and No Rush Emails were emails issued by P, whilst using respectful language so as not to be seen as pushing, to enforce his contractual rights. He was not promising not to enforce the relevant rights. There is no objective basis to interpret them as having such effects;

(h)  It is unfortunate that such emails, read objectively clearly meant to be nothing but well-mannered and light-hearted replies, got somehow twisted around and became used as the bases for grounding promissory estoppel.

221.In my view, and on the above basis alone, and without the need for considering the compensatory principle which Mr Manzoni has made submissions on (which in any event I will come to later), Route 1 fails.

222.In addition, I accept Mr Westbrook’s submissions that Route 1 also fails for want of reliance by D2.

223.In the end, I also bear in mind the fundamental principle that equity is concerned to prevent unconscionable conduct. I have looked at the matters in the round. I see no infringement by P of that fundamental principle.

224.Route 1 fails.

225.Route 3, as Mr Manzoni explains[99], leads only up to Route 1 Step (b), relying only upon the doctrine of equitable forbearance/ promissory estoppel (without reliance upon the compensatory principle or the further Route 1 Steps down the route). The Route 3 Date put forward therefore is 14 April 2016.

226.Route 3 hence fails for the same reasons as Route 1 does.

K.4.b.ii  Route 2

227.I now consider Route 2. The Route 2 Date put forward is 18 September 2016.

228.Route 2 focuses upon Route 1 Step (c) (that P would not have sold his shareholding until, at the earliest, 18 September 2016). Mr Manzoni submits that the Route 2 Date can be arrived at by pure operation of the compensatory principle.

229.The essence of Mr Westbrook’s response is that whether P would have waited until 18 September 2016 (or any other time) to sell the 1^st Tranche is legally irrelevant[100].

230.For the following reasons, I accept Mr Westbrook’s submissions.

231.The compensatory principle has been explained in many cases. The one cited to me is Johnson v Agnew [1980] AC 367, wherein Lord Wilberforce explained:

The general principle for the assessment of damages is compensatory, i.e., that the innocent party is to be placed, so far as money can do so, in the same position as if the contract had been performed.

232.That principle by itself however does not dictate what date of assessment should be adopted for assessment of damages. As further explained by Lord Wilberforce:

Where the contract is one of sale, this principle normally leads to assessment of damages as at the date of the breach … But this is not an absolute rule: if to follow it would give rise to injustice, the court has power to fix such other date as may be appropriate in the circumstances.

233.It is hence a general, but not an absolute, rule of law that damages for breach of contract are assessed as at the date of breach.

234.In Johnson v Agnew, Lord Wilberforce adopted a date other than the one of breach for assessment purpose. In that case after breach on the part of the buyer in the purchase of a landed property, the seller obtained an order for specific performance. The transaction was hence kept alive. Subsequently, the buyer failed to comply with the order for specific performance. The seller put an end to the transaction and sought damages. On the question of assessment date, Lord Wilberforce explained:

In cases where a breach of a contract for sale has occurred, and the innocent party reasonably continues to try to have the contract completed, it would to me appear more logical and just rather than tie him to the date of the original breach, to assess damages as at the date when (otherwise than by his default) the contract is lost. Support for this approach is to be found in the cases. In Ogle v. Earl Vane (1867) L.R. 2 Q.B. 275; L.R. 3 Q.B. 272 the date was fixed by reference to the time when the innocent party, acting reasonably, went into the market; in Hickman v. Haynes (1875) L.R. 10 C.P. 598 at a reasonable time after the last request of the defendants (buyers) to withhold delivery. In Radford v. De Frober-ville [1977] 1 W.L.R. 1262, where the defendant had covenanted to build a wall, damages were held measurable as at the date of the hearing rather than at the date of the defendant’s breach, unless the plaintiff ought reasonably to have mitigated the breach at an earlier date.

235.But the compensatory principle, and the choice of assessment date, are not to be conflated with issues as to what facts are relevant to the assessment exercise, and how those facts are to be proved.

236.It is here where The Bwllfa and Merthyr Dare Steam Collieries (1891), Ltd v The Pontypridd Waterworks Co [1903] AC 426 (which Mr Manzoni cites) becomes relevant:

(a)  The facts in Bwllfa, as set out in the headnote, were as follows:

Owners of coal mines under and near waterworks gave the undertakers notice under s. 22 of the Waterworks Clauses Act, 1847, that they intended to work the coal. The undertakers replied by a counter-notice requiring the mine owners not to work and stating their willingness to make compensation. In an arbitration under the Act and the Lands Clauses Acts to assess the compensation the mine owners gave evidence to prove that coal rose in value after the date of the counter-notice.

(b)  On appeal, the undertakers contended that the arbitrator ought to have rejected that evidence altogether, and to have been guided in making his award solely by facts and circumstances known at the date of the counterclaim;

(c)  Before proceeding further, it is important to appreciate the issues before the arbitrator. The case was not one of sale of property or share transfer:

(i)  As pointed out by Earl of Halsbury LC[101]:

My Lords, I think in this case that Phillimore J. stated the question for debate with perfect accuracy when he said that “the true inquiry here is not what is the value of the coalfield or of the coal, but what would the colliery company, if they had not been prohibited, have made out of the coal during the time it would have taken them to get it.”

It was not a purchase of the coal, nor is it analogous to a purchase of the coal. It is what it is …

(ii)  Lord Robertson’s identification of the issue was to the same effect, that:

My Lords, the following propositions in law seem to be perfectly clear. The coal in question was not taken and acquired (and could not be taken and acquired) by the respondents, but, on the contrary, remained the property of the appellants.  After the notice of October 15, 1898, the appellants were disabled from working the coal. The resulting pecuniary obligation on the respondents was to pay compensation to the appellants for being thus prevented from working the coal.

It follows that what is due to the appellants is not the price on a transaction of sale, but compensation for a continuing embargo on working. The sum to be paid would thus be whatever sum could best be made out to be the profit that would have been made by the appellants if they had been free to work.

(d)  In the context of that exercise, the actual coal price was clearly relevant, if not vital, and it was also in that context where the Law Lords rejected the contention put forward by the undertakers (as summarised above). In this regard, Lord Macnaghten observed that[102]:

… I cannot find in this group of sections any provision or even any suggestion to the effect that a line is to be drawn at the date of the counter-notice, and that all that occurs after that date is to be as if it had never happened.

… If the question goes to arbitration, the arbitrator’s duty is to determine the amount of compensation payable. In order to enable him to come to a just and true conclusion it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should he shut his eyes and grope in the dark? The mine owner prevented from working his minerals is to be fully compensated — the Act says so. That means that so far as money can compensate him he is to be placed in the position in which he would have been if he had been free to go on working. Here it has been proved to demonstration that if he had not been interfered with he would have made between 5000l. and 6000l. I cannot understand upon what principle it is maintained that he should be content with half, and that that half is full compensation.

Along the same line, Lord Robertson observed as follows[103]:

… And if, owing to the course of the procedure, the period required for the working out of the coal in question has come to be matter of history, then estimate and conjecture are superseded by facts as the proper media concludendi. I do not mean that the proper course in awarding compensation is to wait for the expiry of the period required for working out the coal. On the contrary, it is natural that the compensation should be assessed once for all and by estimate. But the point is that as in this instance facts are available, they are not to be shut out.

237.But the Bwllfa principle does not otherwise make an irrelevant factor relevant.

238.Mr Manzoni has also cited Bunge SA v Nidera BV [2015] 3 All ER 1082 (in particular §86 thereof) for the proposition that “the fundamental compensatory principle means that the Court has to be flexible when assessing the proper date for damages.”[104]

239.Bunge SA v Nidera BV has to be appreciated in its full context:

(a)  There, the buyer entered into a contract with the seller for supply of wheat from Russia. Delivery was to be made between 23 and 30 August 2010. On 5 August 2010, Russia introduced an embargo on the export of wheat, which was to run from 15 August to 31 December 2010. On 9 August 2010, the seller notified the buyer of the embargo and purported to cancel the contract. The buyer maintained that the seller’s cancellation was premature because the anticipated embargo might not happen. The buyer treated the cancellation as a repudiation, accepted the same, and started arbitration;

(b)  As things turned out, the export embargo did come into force, and was in fact extended;

(c)  The first tier arbitration found that there was indeed breach by the seller, but that no one had suffered as the export embargo did come into force, such that the contract had to be cancelled in any event. The arbitration board of appeal differed on the issue of damage, and awarded the buyer substantive damages. On further appeal, the UK Supreme Court in effect restored the first tier award, and awarded the buyer only nominal damages;

(d)  It was in the light of those facts that Lord Toulson observed at §§85 and 86 as follows (emphasis added for ease of presentation):

[85] The fundamental compensatory principle makes it axiomatic that any method of assessment of damages must reflect the nature of the bargain which the innocent party has lost as a result of the repudiation. In this case the bargain was subject to a high risk of cancellation. Leaving aside for the purposes of this discussion the sellers’ offer to reinstate the contract, what the buyers lost was the chance of obtaining a benefit in the event of the export ban being lifted before the delivery period, only in which case would the contract have been capable of lawful performance. In The Golden Victory Lord Bingham observed, uncontroversially, that although it may be difficult to calculate a loss prospectively, an injured party can recover damages for the loss of a chance of obtaining a benefit. He also acknowledged that the market value of a contract may be reduced if terminable on an event which ‘the market’ judges to be likely but not certain. But how is the chance to be valued if there is no market risk index to which the court can refer? (In this case the Appeal Board merely found that there ‘was a possibility that the ban might be lifted or relaxed in some way’.) The assessment would have to be made by the arbitrator or judge doing the best he can.

[86] Should the assessment be made on the facts as known at the date of the assessment or should the tribunal apply a retrospective assessment of how the chances would have appeared at the date of the repudiation? I see no virtue in such circumstances in the court attempting some form of retrospective assessment of prospective risk when the answer is known. To do so would run counter to the fundamental compensatory principle. In The Golden Victory Lord Bingham acknowledged that the saying ‘you need not gaze into the crystal ball when you can read the book’ is in many contexts a sound approach in law as in life. He did not consider that approach to be appropriate in that particular context because of the available market rule. I have given my reasons for not regarding that rule as apt for the circumstances of this case, by contrast with cases such as The Elena D’Amico and Norton v Andre.

(e)  In the context of Lord Toulson’s discussion, that “chance” and “risk” were, like the coal price in Bwllfa, clearly relevant to the assessment exercise. They being relevant, Lord Toulson saw “no virtue in such circumstances in the court attempting some form of retrospective assessment of prospective risk when the answer is known”;

(f)  The question of relevance is different when the context is different. As Lord Toulson explained in the earlier parts of the judgment:

[78]   The broad principle deducible from The Elena D’Amico and the cases there considered is that where a contract is discharged by reason of one party’s breach, and that party’s unperformed obligation is of a kind for which there exists an available market in which the innocent party could obtain a substitute contract, the innocent party’s loss will ordinarily be measured by the extent to which his financial position would be worse off under the substitute contract than under the original contract.

[79] The rationale is that in such a situation that measure represents the loss which may fairly and reasonably be considered as arising naturally, ie according to the ordinary course of things, from the breach of contract (Hadley v Baxendale). It is fair and reasonable because it reflects the wrong for which the guilty party has been responsible and the resulting financial disadvantage to the innocent party at the date of the breach. The guilty party has been responsible for depriving the innocent party of the benefit of performance under the original contract (and is simultaneously released from his own unperformed obligations). The availability of a substitute market enables a market valuation to be made of what the innocent party has lost, and a line thereby to be drawn under the transaction.

[80] Whether the innocent party thereafter in fact enters into a substitute contract is a separate matter. He has, in effect, a second choice whether to enter the market—similar to the choice which first existed at the time of the original contract, but at the new rate prevailing (the difference being the basis of the normal measure of damages). The option to re-enter or stay out of the market arises from the breach, but it does not follow that there is a causal connection between the breach and his decision whether to re-enter or to stay out of the market, so as to make the guilty party responsible for that decision and its consequences. The guilty party is not liable to the innocent party for the adverse effect of market changes after the innocent party has had a free choice whether to re-enter the market, nor is the innocent party required to give credit to the guilty party for any subsequent market movement in favour of the innocent party. The speculation which way the market will go is the speculation of the claimant.

[81] It is well recognised that the so-called duty to mitigate is not a duty in the sense that the innocent party owes an obligation to the guilty party to do so (Darbishire v Warran [1963] 3 All ER 310 at 316, [1963] 1 WLR 1067 at 1075 per Pearson LJ). Rather, it is an aspect of the principle of causation that the contract breaker will not be held to have caused loss which the claimant could reasonably have avoided.

240.Similar issues have indeed been considered and summarised by Deputy High Court Judge Jenkin Suen SC, with reference to Bunge SA v Nidera BV, in Hong Kong Zhixin Financial News Agency Ltd v China Maple Leaf Educational Systems Ltd [2022] HKCFI 2653 at §§231 to 235.

241.Consistent with the above, the House of Lords in Smith New Court Securities Ltd v Citibank NA [1997] AC 254 at 266 observed that:

In many cases, even in deceit, it will be appropriate to value the asset acquired as at the transaction date if that truly reflects the value of what the plaintiff has obtained. Thus, if the asset acquired is a readily marketable asset and there is no special feature (such as a continuing misrepresentation or the purchaser being locked into a business that he has acquired) the transaction date rule may well produce a fair result. The plaintiff has acquired the asset and what he does with it thereafter is entirely up to him, freed from any continuing adverse impact of the defendant’s wrongful act. The transaction date rule has one manifest advantage, namely that it avoids any question of causation. One of the difficulties of either valuing the asset at a later date or treating the actual receipt on realisation as being the value obtained is that difficult questions of causation are bound to arise. In the period between the transaction date and the date of valuation or resale other factors will have influenced the value or resale price of the asset. It was the desire to avoid these difficulties of causation which led to the adoption of the transaction date rule.

242.Those ordinary rules apply whether or not the injured party in fact acted in the assumed way. The actual facts are in that context irrelevant.

243.The Route 2 Date also involves the assumption that P would have sold all the 2^nd Tranche on that date, which is not justified.

244.For the above reasons, and on the authorities cited to me, I accept Mr Westbrook’s submissions and hold that whether P would have waited until 18 September 2016 (or any other time) to sell the 1^st Tranche is legally irrelevant. I adopt the Clause 2.1 Date (1 February 2015) as the date of assessment. In my view, adopting the Route 2 Date would be contrary to established principles, and would work grave injustice to P, both against the rationale for adopting the alternative date as explained by Lord Wilberforce in Johnson v Agnew.

245.Before reaching the above conclusion, I have also considered Li Li Hong v Kilmorey International Holdings Ltd [2020] HKCFI 372 which Mr Manzoni has cited. In that case, Deputy High Court Judge A Ho SC adopted a date subsequent to the breach date for the purpose of assessment because the adherence there to the “breach date rule” would result in an injustice to the claimant, on the strength of the submissions made on the claimant’s behalf that the claimant was entitled to specific performance until he made an informed choice of his remedy. The position there was in fact similar to that in Johnson v Agnew.

246.In my view, Route 2 has no merits.

K.4.b.iii  Route 4

247.For Route 4, Mr Manzoni submits that D2’s obligation to transfer the 1^st Tranche did not arise until, pursuant to Clause 11.2 of the Deed of Agreement, P on 6 January 2017 provided D2 with his account details. The Route 4 Date put forward is hence 6 February 2017, said to be a reasonable time (1 month) thereafter.

248.I have set out Clause 11.2 of the Deed of Agreement above.

249.I have also set out parties’ relevant correspondence, including in particular Gall’s letter of 6 January 2017.

250.Clause 11.2 of the Deed of Agreement has to be read in conjunction with Clause 2.1 thereof.

251.To recap, Clause 11.2 of the Deed of Agreement, amongst other matters, required that D2 “shall procure and do all things necessary for Fleet Overseas to transfer and Fleet Overseas agrees to transfer to” P the 1^st Tranche.

252.D2 had never in any of the contemporaneous correspondence, stated that he had difficulty in effecting the transfer due to absence of information on P’s securities account.

253.Further, P had never expressed refusal in providing such information.

254.As Mr Westbrook has pointed out, on several previous occasions (and see the Acquisition Table above), NGL Shares had been allotted and transferred to P, without any apparent difficulty. I accept Mr Westbrook’s submissions that P’s necessary accounting information was known, and could not be a valid reason for not making the transfer.

255.I have considered The Pui Ying Middle School of Hong Kong v The Hong Kong Council of the Church of Christ in China [2021] HKCFI 692, and in particular the following passage which Mr Manzoni places emphasis on:

An obligor cannot just sit back and say that it could not reasonably have done more to procure the contractually-stipulated outcome in cases where, if it had asked the obligee, it might have discovered that there were other steps which could reasonably have been taken.

256.On the facts of the present case, P, or any reasonable obligee in P’s position, simply would not have thought that his account information would pose any difficulty to D2 fulfilling his contractual obligation, such that he would feel the need to ask.

257.In my view, this Route 4 has no merits whatsoever.

K.4.c.  Conclusion and assessment

258.For the above reasons, I reject all 4 Routes.

259.Also for the above reasons, I accept Mr Westbrook’s submissions[105] that there is no “injustice” or other reason to displace the Clause 2.1 Date for assessment of the 1^st Tranche.

260.On the evidence, and as summarised by Mr Manzoni in the Annex to his written closing, the total value of those shares as at that day was SGD 70,275,887, which was, at the then exchange rates, equivalent to USD 51,969,018.44 or HKD 402,278,854. I so find. I will however come back to the issue of the exchange rates.

L.  Overall disposition

261.For the above reasons:

(a)  I find that P has proved his case against D2 on contract;

(b)  In respect of the 1^st Tranche:

(i)  I adopt 1 February 2015 as the assessment date for the 1^st Tranche, and that the total value of those shares as at that day was SGD 70,275,887 (which was, at the then exchange rates, equivalent to USD 51,969,018.44 or HKD 402,278,854);

(ii)  I would make an order nisi that interest be paid at prime plus 1% from 1 February 2015 to the date of judgment, and thereafter at judgment rate till payment;

(c)  In respect of the 2^nd Tranche:

(i)  I adopt 31 December 2016 as the assessment date, and that the total value of those shares as at that day was SGD 8,888,157 (which was, at the then exchange rates, equivalent to HKD 47,623,900);

(ii)  I would make an order nisi that interest be paid at prime plus 1% from 31 December 2016 to the date of judgment, and thereafter at judgment rate till payment;

(d)  For costs:

(i)  I would make an order nisi that costs of and occasioned by the proceedings against D2, including all costs reserved with certificate for 2 counsel be paid by D2 to P, to be taxed if not agreed;

(ii)  I may make another order nisi on payment by D2 of any costs that P might have incurred in respect of his claim against D1.

(e)  Subject to, but subject only to, the matters explained next below, I would enter judgment in favour of P against D2 along the above lines.

262.Towards the end of oral closing, I invited submissions on the precise terms of any judgment that P would be seeking if the Court was to find in his favour. For that purpose, parties have filed further submissions (Gall on 9 January 2026, MinterEllison on 16 January 2026, and Gall on 20 January 2026). I have considered those submissions. Parties differ as to the currency for any sum in which the Judgment should be entered.

263.In the circumstances, I grant parties liberty to file written submissions as follows:

(a)  Parties be at liberty to file written submissions on (1) the currency for the sums in which the Judgment should be entered, (2) the order nisi on interest, and (3) the order nisi on costs;

(b)  P should do so within 21 days from the date hereof, and the submissions be confined to 7 pages;

(c)  D2 should do so within 14 days upon receipt, and the submissions be confined to 10 pages;

(d)  P should lodge his reply within 14 days upon receipt, and the submissions be confined to 5 pages;

(e)  Upon receipt of all those submissions, this Court may proceed to consider the matters on the paper, or may give further directions on the further conduct of the matter.

Mr Simon Westbrook SC leading Mr Toby Brown, instructed by Gall, for the Plaintiff

Mr Charles Manzoni SC leading Mr Justin Ho and Ms Celeste Chan, instructed by MinterEllison LLP, for the 2^nd Defendant