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

The Claimants contend that the Defendants breached their non-competition obligations under the APA in that:

Fantuan is the Claimants’ largest global competitor in the Asian food-delivery market (Mr Kelu Liu’s first witness statement, para. 39). One of the companies in the Fantuan group is Fantuan Canada.

By the time the Claimants issued the current proceedings, they discovered that Fantuan appeared to be moving into the Australian market. Fantuan Australia was incorporated on 14th January 2022 and registered for GST on 22nd January 2022.

Following the Court’s order dated 22nd February 2022 and the data recovery which this enabled, it became clear to the Claimants that Fantuan’s entry into the Australian market was not mere chance. Instead, the Defendants and others had worked with Fantuan since November 2021 (after the APA was concluded) to establish Fantuan’s Australian business using key assets sold to the Claimants under the APA, including in particular valuable intellectual property. This, argue the Claimants, was done by the Defendants deliberately and cynically failing to deliver the Withheld Assets to the Claimants at the Second Closing Date under the APA, thereby giving the newly-established Fantuan Australian business a substantial competitive advantage.

The Claimants’ case that the Defendants intended to transfer the EASI Business to Fantuan despite the fact that they had agreed to sell the EASI Business to the Claimants is supported by the JV Documents dated 10th January 2022 and data recovered once the Claimants received the Critical Withheld Assets in February 2022 and other sources of information.

In late December 2021 to early January 2022, the EASI Key Employees resigned their employment from HungryPanda. The Claimants’ case is that it is to be inferred that each of the said individuals has been or is currently employed by or contracted to provide services to an entity in the Defendants’ Group and providing services to the Defendants or Fantuan Australia. In total, 69 of the 93 employees and contractors who had commenced employment or engagement with the Claimants on the First Closing Date (including the EASI Key Employees) have resigned between 22nd November 2021 and 16th February 2022. The list of the EASI Key Employees is set out in Annex II to the Claimants’ Particulars of Claim.

In my judgment, based on the evidence referred to above and the non-delivery of the Withheld Assets in December 2021, the Defendants’ conduct was in breach of clause 23 of the APA.