CL-2022-000069 - [2025] EWHC 1512 (Comm)

The Defendants have not served a Defence. Accordingly, it is not clear what parts of the Claimants’ case they might dispute.

As mentioned above, immediately prior to the commencement of the trial, the First and Third Defendants served a witness statement of Mr Peter Liu dated 12th May 2025 (in support of an application for relief from sanctions), stating that they had a “meritorious defence” to the claim. In that witness statement, Mr Peter Liu referred to the Defendants’ case that:

In accordance with their duty, in circumstances where the Defendants do not appear at trial, the Claimants have identified the following points which the Defendants have made or might make.

First, the Defendants have at various points during the interlocutory hearings and in Mr Peter Liu’s latest witness statement suggested that the Claimants have not paid all that they ought to have been paid under the APA.By 15th December 2021, the Defendants received A$45.2 million under the APA.

I note that a Retention Amount was due to be paid pursuant to clause 5.5(c) of the APA, unless the Claimants were entitled to make deductions in accordance with clause 6. I have seen no evidence as to the parties’ position under this provision. DLA Piper UK LLP on behalf of the Defendants stated in a letter dated 6th June 2022 that the Retention Amount was A$5,500,000. I have seen no evidence that such a sum was owing whether because it was not paid or because there was no legitimate deduction. Indeed, the Defendants allege that A$10,000,000 has not been paid, an amount which does not tally with the Retention Amount.

With the benefit of post-trial written submissions, which I invited the Claimants to make, I understand that the Retention Amount was not paid, and that the Claimants do not contend that a Repayment Amount fell to be deducted from the Retention Amount.

The Defendants have not, however, sought to provide a calculation of what they in fact received and have not advanced a set-off by way of defence. Indeed, the Defendants are debarred from advancing such a defence. In circumstances where no claim has been advanced or articulated by the Defendants, I do not see that this is a matter to which I can give credence or which I can take into account. In any case, there is no evidence of any failure on the part of the Claimants to pay the consideration due under the APA.

Second, the Defendants requested further information in relation to paragraph 160 of the Particulars of Claim, which forms the basis of the Claimants’ claim which I am asked to consider, in particular “full and proper particulars of all heads of loss and damage claimed in respect of the alleged breaches of the APA”. The Court’s order dated 1st November 2022 required the Claimants to identify all heads of loss claimed and to confirm that no other heads of loss are currently claimed. The Claimants have confirmed that they are claiming only damages for loss of profits over a comparatively short period (one year) as set out in the calculations in Ms Hart’s report. I do not see this as a reason to disturb the findings I have made.

Third, the Defendants might argue that the Claimants’ factual account should be rejected in some way. However, the Defendants have not advanced an account of their own and have not required the Claimants’ witnesses to attend to give oral evidence. Indeed, I proceed only on the basis of the evidence before me. There is, therefore, no scope for the Defendants taking issue with the Claimants’ factual evidence and the documentary evidence.

Fourth, in relation to damages, the Defendants might suggest that the combined HungryPanda/EASI Business budget is not an appropriate starting point for the calculation of damages, but where the Defendants have advanced no alternative methodology or calculation and have made no attempt to engage with the budget, I am satisfied that the Claimants’ budget is a reliable basis on which to calculate their damages, in reliance on Ms Hart’s expert evidence explaining its relevance.

Fifth, there has been a general denial in Mr Peter Liu’s witness statement dated 13th May 2025 of the Defendants’ liability to the Claimants. However, Mr Peter Liu provided no explanation for this position. I am unable to give this any weight in my assessment of the claim.

Sixth, Mr Peter Liu referred to the fact that the Claimants referred to a settlement of their claim. However, this allegation has not been articulated in any way, and I am unable to accept that the Defendants could establish that such a settlement had been agreed. Further, Mr Edwards KC on behalf of the Claimants referred to clause 32 of the APA, which provides that “No variation or restatement of this Agreement shall be effective unless in writing and signed by or on behalf of the Parties”, and submitted that there had been no such variation of the APA made in writing.

Seventh, it might be argued by the Second Defendant that his liability for breach of clause 23 - namely, the indirect involvement in a competing business and/or the failure to procure other members of the “Sellers’ Group” not to engage in competing businesses - is not an absolute obligation, but one based on a failure to exercise reasonable steps. That, however, is not supported by a plain reading of clause 23 (Gallaher International Ltd v Tlais Enterprises Ltd [2008] EWHC 804 (Comm), para. 593-595).

None of the above points which have been relied on or which might have been relied on by the Defendants affect my conclusion that there have been breaches of the APA by the Defendants and that the Claimants are accordingly entitled to damages in respect of their losses caused by such breaches.