CL-2022-000025 - [2025] EWHC 2331 (Comm)

Fecha: 12-Sep-2025

Factual background

Factual background

Mr Perelman and Mr Kerr are both businessmen, who are both shareholders in a Guernsey company called Pyne Gould Corporation (“PGC”). Mr Kerr is the Managing Director and controlling shareholder of PGC. PGC is listed on The International Stock Exchange (“TISE”) in Guernsey.

Their relationship goes back some years and the history of how Mr Perelman acquired his shares was referred to by both parties as part of the background to the arrangements subsequently reached in 2021. I therefore set out a brief summary:

Mr Kerr was, from October 2009, the Chairman of PGC’s principal operating business, referred to as the Torchlight Group. In around 2010-2011, funds managed by a hedge fund called Baker Street Capital Management LLC (“Baker Street”) started buying shares in PGC. Mr Perelman was the founder, Managing Partner and Chief Investment Officer of Baker Street.

ii)

In 2011, Mr Kerr and Mr Perelman formed a jointly-owned entity called Australasian Equity Partners Fund No. 1 LP (“AEP”), in which Baker Street held a 20% interest and entities owned and controlled by Mr Kerr held an 80% interest. AEP’s main asset was shares in PGC.

iii)

By 2012, Mr Kerr had become the Managing Director and ultimate controlling shareholder of PGC. PGC was re-domiciled from New Zealand to Guernsey in February 2014, and then in November 2018 PGC was delisted from the New Zealand Stock Exchange and was listed on TISE in Guernsey.

iv)

In 2020, AEP was dissolved, and the shares it held in PGC were distributed in specie, with Baker Street receiving 20% of those shares, and entities owned and controlled by Mr Kerr receiving 80% of those shares. The shares transferred to Baker Street were as part of the transfer “materialised”, in other words they were converted from electronic to paper form, and physical share certificates were issued. Baker Street in turn transferred its PGC shares to its investors, including Mr Perelman, who personally became the holder of 5,337,334 PGC shares. Mr Perelman’s shares in PGC were, therefore, held in the form of physical share certificates.

In around April 2021, Mr Perelman and Mr Kerr discussed the potential sale of Mr Perelman’s shares in PGC to Mr Kerr. They were able to reach agreement on the sale and the price, and sought to reduce their agreement to writing. Around the same time, they also discussed and agreed that, in return for a fee, Mr Perelman would grant Mr Kerr a right of first refusal over future investment opportunities identified by Mr Perelman. Drafts of two documents were then exchanged and ultimately agreed as the SPA and the ROFR. The documents were dated 18 June 2021, but were both signed, by each of Mr Kerr and Mr Perelman, on 19 June 2021.

In brief, the documents provided as follows:

The ROFR stated (among other things) that Mr Perelman granted Mr Kerr a right of first refusal on future investment opportunities identified by Mr Perelman, and that in consideration for the right of first refusal Mr Kerr would pay to Mr Perelman the sum of USD 400,000 “within thirty (30) days of the execution of this Agreement.” It went on to state that if the consideration payment was “not timely made, the Right of First Refusal Consideration shall be an obligation of Kerr and shall accrue interest at an annual interest rate of 14 (fourteen) percent.”

ii)

The SPA stated that Mr Kerr (or a nominee) would purchase from Mr Perelman the PGC Shares, at a price of NZ$0.39 per share, for a total purchase price of NZ$2,081,560.26. It stated that the “Trade Date” was 18 June 2021, and that the “Settlement term” was “30 business days”. It went on to provide that “[i]f the net proceeds are not paid in a timely manner the obligation shall remain the obligation of Kerr and shall accrue interest at an annual interest rate of 14 (fourteen percent).”

As I have mentioned, there is an issue between the parties as to whether either of the SPA or the ROFR is a legally binding agreement.

Following the signing of those documents on 19 June 2021, there followed a series of exchanges, largely by WhatsApp, between Mr Perelman and Mr Kerr as to the logistics for settlement, including in particular the method by which the shares would be transferred by Mr Perelman to Mr Kerr. I set out some of those exchanges in more detail below. The key point was that, as set out above, Mr Perelman held his shares by way of paper certificates, which could not be traded electronically without having first been de-materialised. Mr Kerr did not want to accept the shares by way of transfer of the paper certificates – he wanted to receive the shares electronically through a transfer on CREST (which, as is well-known, is a computer based system called a central securities depository enabling title to securities to be evidenced and transferred without a written instrument). There were therefore discussions about how that might be carried out and, later, discussions around whether Mr Perelman might, instead of transferring to Mr Kerr rather transfer them to PGC (discussions which also involved Mr Kerr’s colleague, Mr Russell Naylor, another director of PGC). These various exchanges continued into December 2021.

Ultimately, however, the transfer did not take place. In short, Mr Kerr was unwilling to accept a transfer of the paper shares certificates and Mr Perelman did not convert the shares into electronic form. Payment for the shares was not made by Mr Kerr under the SPA, nor was the payment under the ROFR made by Mr Kerr.

By January 2022, Mr Perelman had run out of patience and instructed lawyers to issue these proceedings (a letter before action having been sent in mid November 2021), in which the primary relief claimed is an order for payment of the agreed sum under the ROFR and an order for specific performance of the SPA (with claims for damages in the alternative). By his Defence in these proceedings (served on 18 March 2022), Mr Kerr contended (in the alternative to his primary case that the SPA and the ROFR were not binding), among other things, that Mr Perelman was in repudiatory breach of the SPA (on a number of bases) and Mr Kerr sought to accept that alleged repudiation and terminate the SPA.