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The Parties’ Submissions
The Parties’ Submissions
Eraaya submitted that:
Elara had a contractual obligation under the Engagement Letter and that included providing the confirmation required under clause 3.4 of the Second Settlement Agency Agreement, and is (at the very least) strongly arguably in breach of that obligation by failing to provide that confirmation;
The balance of convenience favours the granting of the injunction, in particular because the prejudice to Eraaya if it loses majority control of Ebix UK is irremediable. Some reliance was also placed on potential regulatory enforcement proceedings if the funds are not repatriated to India.
Both Elara and the Bondholders submitted that there was a good argument that Elara was not bound to provide the confirmation until the required security was in place, that the agreement to release US$ 20m of the proceeds was neither here nor there and that damages would not be an adequate remedy for them if Eraaya is not ultimately successful.
- Heading
- Introduction
- The Facts
- Engagement of Elara
- The Bridging Loans
- The First Settlement Agency Agreement
- The Offering Circular
- The First Bond Issue
- The Second Bond Issue
- The Dispute Emerges
- The Claim and the Listing of this Hearing
- Injunction Application
- The Parties’ Submissions
- The Merits of Eraaya’s claim: analysis
- The Proprietary Issues
- The Issues
- Express Trust
- Quistclose
- Bare Trust
- Balance of convenience
- Damages not an adequate remedy: Eraaya’s case
- Other Discretionary factors and conclusion
- Joinder Application: Legal Principles
- The issues between the parties
- Analysis
- Collateral Use Application
- The parties’ submissions
- Analysis
- Post script: Collateral Use and Joinder (Abuse of Process)
- Conclusions