Judgment: 2018-02-23 · Court archive

High Court grants receiver powers over Mack Soft shares in IBRC asset dispute

In an interlocutory application, the court found a significant risk of further dissipation and ordered protections for shares linked to Q City, while making clear that no final findings of fact were being made.

High Court, Commercial Court, Dublin · [2018] IEHC 110

Who, what, where, when and why

Who
  • Mecon FZE
  • Willem Smit
  • Cathal MacCarthy
  • Mack Soft Tech Pty. Ltd.
What

In an interlocutory application, the court found a significant risk of further dissipation and ordered protections for shares linked to Q City, while making clear that no final findings of fact were being made.

Where

Places mentioned in the report

  • Hyderabad, India
  • Hong Kong
  • Hyderabad
When

Judgment:

Why

Reasons reported in the judgment

The court appointed solicitor Cathal MacCarthy as receiver over shares held by Mecon FZE in Mack Soft and over proceeds or payments relating to those shares. It also authorised him, subject to Indian law requirements, to transfer title into his name, seek appointment as Mecon’s representative at company meetings, call an extraordinary general meeting and exercise voting rights there. The receiver must preserve the shares, certificates and any distributions pending further court order or determination of the proceedings.

The High Court granted interlocutory relief to Irish Bank Resolution Corporation Limited and two other plaintiffs in a dispute over Mack Soft Tech Pty. Ltd., the company that owns the Q City technology park in Hyderabad, India. Mr Justice Haughton said the application raised further fair questions to be tried, but stressed that he was not making final findings of fact.

The court appointed solicitor Cathal MacCarthy as receiver over shares held by Mecon FZE in Mack Soft and over proceeds or payments relating to those shares. It also authorised him, subject to Indian law requirements, to transfer title into his name, seek appointment as Mecon’s representative at company meetings, call an extraordinary general meeting and exercise voting rights there. The receiver must preserve the shares, certificates and any distributions pending further court order or determination of the proceedings.

The plaintiffs alleged that Mecon and the Senat defendants conspired with personal defendants to obtain control of Mack Soft and strip its assets. They said 376,301 shares were transferred to Mecon in June 2011 for about US$90,000, and that payments under software agreements moved about US$12.5 million to Orient Guide Investments in Hong Kong and about US$11.2 million to Isaad FZE. They also relied on payments to other entities and said Mack Soft’s revenues suggested further funds may have been dissipated.

Mecon director Willem Smit disputed the plaintiffs’ account and said the software was genuine and the transactions reflected Mack Soft’s business decisions. The court found the plaintiffs had presented a strong body of evidence for the interlocutory application, including expert evidence that the software agreements were not authentic and were grossly inflated. It also identified differing versions of convertible debenture documents relied on by the defendants and said the exhibits relied on by Mr Smit appeared prima facie to be false, altered or forged. The judge rejected the non-disclosure challenge and found a real risk of further asset dissipation if Mecon retained or regained control.

The court considered the effect of Indian injunctions and Mack Soft’s insolvency process, including expert evidence on Indian law. It concluded that the requested receiver measures would not impede that process, while making the receiver’s authority subject to compliance with Indian law. The court also granted injunctions sought against the Senat defendants and ordered them to disclose on oath documents relating to steps taken to place scheduled assets beyond IBRC’s reach. The judge said he would hear counsel further on the precise terms of the orders.

The plaintiffs were required to give the usual undertaking as to damages; the court refused to require a fortified undertaking. The ruling concerned interlocutory relief only and did not finally determine the conspiracy, ownership or tracing claims.

Read the original court judgment

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