Khadim Hussain v Allah Hussain & Ors [2023] EWHC 3080 (Ch)

“4. At all material times each of the Petitioner and First Respondent has been legal owner of 50% of the issued shares in the Company. Since about 2000 this has comprised 700,000 shares, with each holding 350,000 shares. 5. The Company has at all material times carried on a business operating petrol stations and motor vehicle sales and repairs. 6. The Company’s registered address is Worleys, Hamilton Road, High Wycombe, Buckinghamshire, HP13 5PA (“Worleys”). Its places of business are at the registered address and at Pewsham Garage, London Road, Pewsham, Chippenham, SN15 3RR (“Pewsham”), each of which it owns. The Company also owns Corner Garage, Keepers Corner, Burstow, Copthorne, Gatwick, RH6 9RR (“Corner”) which is leased to an unconnected third party. The Company also operates two workshop businesses known as A M Auto Care at 3 Maundrell Road, Calne, SN11 9PU and Sawmills Garage at Chippenham Road, Lyneham, Chippenham, SN15 4PA which premises it also owns. The History of the Board 7. From December 1998 until about 2005 the Petitioner and the First Respondent (his brother-in-law) were the only directors of the Company. 8. In 2006 Mazamal Hussain (“Mazamal”) (a son of the Petitioner) and the Second Respondent (the son of the First Respondent and nephew of the Petitioner) were appointed as additional directors. In 2009 Mazamal resigned as a director. Between that resignation and June 2020 the board of the Company therefore comprised the Petitioner and the First and Second Respondents. 9. The Third Respondent is the son of the late Talib Hussain (“Talib”) (the elder brother of the Petitioner) and also the cousin and long-standing friend of the Second Respondent. The Third Respondent was (as more particularly set out below) appointed as a director on 30 June 2020.”

“22. By virtue of its genesis (as set out above) and the familial relationship between the members, the management of the Company was at all material times to be conducted in good faith and on the basis that the Petitioner would be treated as having an equal right to involvement in the management to that of the First Respondent and: (1) would have access to all of the Company’s books of account; (2) would be involved in any significant management decision if he indicated a wish to be so involved; (3) would not be excluded from liaising with (or prevented from appointing) professional advisors to the Company on accounting or legal matters; (4) would not be denied a proper explanation for any significant payment made by the Company, and (5) would not be prejudiced by his forming a minority of the board following the resignation of Mazamal.”

“24. (1) the First and Second Respondents have: (a) caused or permitted to be made by the Company numerous payments to themselves and others which the Company was not obliged to and/or should not have made; (b) caused or permitted the books of the Company to be compiled in a manner that concealed or failed to make clear the true nature of those payments; (c) caused or permitted the Company to file its accounts and make returns to HMRC in a manner which concealed or failed to make clear the true nature of those payments (and hence failed to give a true and fair reflection of the Company’s liabilities to tax and national insurance) and have thereby exposed the Company to the risk of increased liabilities by way of interest and penalties; (d) caused, without any good faith reason, the Company’s bankers to refuse to accept instructions from the Petitioner; (e) caused, without any good faith reason, the Company’s accountants to refuse to accept instructions from or to provide information to, the Petitioner; (f) failed, without any good faith cause, to allow a proper investigation into allegations of payments made by the Company as set out at (a) above; and (g) appointed the Third Respondent as a director for improper purposes. (2) The Third Respondent has: a) failed since his appointment to make any effort to correct the defaults of the First and Second Respondents set out at (a) to (f) above. It is inferred that before he was appointed as a director he was informed by the First and Second Respondents of the substance of the complaints that had been raised by the Petitioner (as set out at paragraphs 28 to 30 below). He has however, not sought any input from the Petitioner on those significant matters and it is inferred that he has not done so because he has agreed to side with the First and Second Respondents and will do so and since October 2020: b) failed to support the Petitioner in any of his requests for information about the Company or its management. c) commissioned a report by the Auditors in respect of the Petitioner and his family members and/or further blocked investigation into the First and/or Second Respondents and then instructed the report not to be released until he had approved it for release. The Report was designed to favour the First and/or Second Respondents. d) inconsistently asserted that hiring of new staff is a site-specific matter and on other occasions that they must be approved by the Board, which he and the First and/or Second Respondents control. e) failed to account for the time he has allegedly committed in performing his duties. (3) The First, Second and Third Respondents individually and/or collectively as two or all of them have, since October 2020: a) refused to appoint the Petitioner’s son Tazamal Hussain as an alternative director. b) called board meetings at very short notice and/or without the time of the meetings being communicated until very short notice with the purpose or effect of making it difficult for the Petitioner to engage or prepare. c) attended board meetings in a manner of fait accompli and/or where the agenda items have already been decided on in advance by the First, Second and Third Respondents where there is little or no meaningful debate. d) conducted board meetings in such a way, that the Petitioner need not have attended and/or squeezed him out and/or left him with no effective voice and/or acted in a hostile and/or oppressive and/or undermining manner towards him. e) not permitted the review of board meeting minutes when issues, errors or omissions have been identified. f) proposed and/or adopted measures to one or more of their personal interests including, but not limited to creating a back dated lease over parking spaces allegedly owned by them and retrospectively applying payment for them, retrospectively applying a salary increase in favour of the second respondent g) failed to investigate the Petitioner’s concerns over potential abuse of the furlough scheme.”

“41. On Friday 26 June 2020 the First and Second Respondents gave notice of a board meeting at 2pm on Tuesday 30 June 2020 at which they intended to propose the appointment of an additional director. They did not identify the new director although they must have known that it was the Third Respondent. It is inferred that they withheld his identity to prevent the Petitioner making any preparations to resist his appointment, there being no other good faith reason for doing so. 42. When the Petitioner’s legal representative raised the lack of notice with the solicitors for the First and Second Respondents those solicitors (it is inferred on explicit instructions) wrote that their clients welcomed discussion at the meeting about the appropriateness of the proposed director, but declined to identify him. They referred to the new director being “an independent person” when the Third Respondent is manifestly not such a person given his longstanding relationship with the First and Second Respondents and his longstanding bad relationship with the Claimant. It is inferred that the First and Second Respondents did not reveal his identity to their solicitors because if they had, the solicitors could not properly have referred to him as “an independent person”

“39. Worleys' overdraft remained a problem and point of family tension throughout 2019. On or around 13 September 2019, Tanveir [sic] and Allah instructed KTA's bank that written transfer requests from KTA's bank accounts would have to be authorised by additional directors in writing. The purpose of this request was to prevent Khadim from making a unilateral written transfer of the surplus funds from the accounts of the Chippenham-based businesses into Worleys' overdrawn bank account at High Wycombe. 40. It is Allah and Tanveir's [sic] case that, as the tensions between the parties escalated in relation to the matters described in paragraphs 35-37 above, Khadim's son, Tazamal, sought to resile from Khadim's prior acceptance and approval of Tanveir's [sic] withdrawal of sums from KTA and launched a vendetta against Tanveir [sic] to seize control of the Chippenham-based businesses and Corner Garage.”

“41C Paragraph 24(2)(d) is embarrassing for want of particularity as to the decisions which are impugned, and as to the Petitioner's case on whether such decisions should have been made (a) as a matter of site-specific business; or (b) at a board level. Each hiring request in the relevant period has been treated on its merits by the board of directors by reference to operational needs within one of the Company's businesses.”

“58. As to paragraphs 41-42, no breach of KTA's Articles of Association is identified. The correct procedures were followed. (1) It is not understood what "preparations to resist [Shahzad's] appointment" means and the basis for any such resistance has not been identified, other than a suggestion that was made by Khadim's solicitors in correspondence that Shahzad "is estranged from his mother, who lives with and is taken care of by our client." Shahzad's case will be that Khadim is unfairly hostile towards him, despite the business making significant improvements. (2) Khadim was provided with proper notice of the meeting on 30 June 2020 yet he declined to attend, despite attempts to contact him. (3) It is denied that Shahzad had a "longstanding relationship with [Allah] and Tanveir.” [sic]. (4) The asserted "longstanding bad relationship with [Khadim]" is unexplained and not understood. (5) Shahzad had no substantive relationship with either Allah, Tanveir [sic] or Khadim, or the family generally, for over 20 years. (6) It is denied that any approaches were made by Allah or Tanveir [sic] to Shahzad's brothers to become directors. 59. As to paragraph 43, it is denied that Shahzad was appointed for any improper purpose. The relevance of the alleged "in-built majority of 3 to 1" is not understood and is inaccurate in any event. The assertion that Shahzad was appointed to protect Tanveir [sic] and Allah from Khadim's "attempt to uncover the true state of KTA's finances" is vague and contradicted by the fact that Tanveir [sic] and Allah had already contacted HMRC by the time Shahzad was appointed to the Board. 60. As to paragraph 44: (1) The Board's meeting on 18 July 2020 was called early, not late, on 16 July 2020. (2) The suggestion that Khadim was only notified on 17 July 2020 is wrong. The email invitation was sent at 09:31 on 16 July 2020 with the location clearly identified. (3) The Board's meeting was booked to take place at a COVID-secure site in High Wycombe, namely a Holiday Inn, which is 10 minutes from Khadim's house by car, and was a location selected for Khadim's convenience. In contrast, the Holiday Inn, High Wycombe, involved a 3 1/2 hours’ round trip for Allah and Tanveir [sic], and 11/2 hours round trip for Shahzad. (4) It is denied that there was any "deliberate decision to exclude [Khadim] from the meeting." (5) The exchanges that followed the scheduling of this meeting, whereby Khadim failed to contact the other directors, but sent a Zoom invitation to Allah and Tanveir's [sic] solicitors who are dealing with HMRC, do not take matters any further.”

“TanH explained that the meeting was that of the board of directors. TazH disputed the lack of balance on the board and that any vote drawn would be meaningless, suggesting that either TanH resign as director or allowing KH to appoint an additional director of his choosing. TanH reiterated that the meeting was that of a board of directors under KTA's current legal structure. TazH maintained his concern at the lack of representation of the 'beneficial owners' of a 3rd share of the business and raised the possibility of legal sanction should such decisions be made without the consent of representatives of Talib Hussain's Estate. PD was asked for his opinion on the current Covid19 crisis and its impact on the automotive market. PD explained that the current situation is unprecedented and across the 40 plus business that he represents (whom are all now effectively closed) there is likely to be a period of whereby substantial levels of cash expenditure will continue and whilst this crisis may be a matter of weeks it could potentially be longer. PD suggested that given the direction of the meeting thus far the shareholders should undertake a separate call and reconvene the board of directors meeting at a later time. TazH indicated that he was not keen to see KTA utilise bank funding to see it through the current crisis and suggested that in light of there being no objection as to the aforementioned ownership structure all beneficial owners (including the Estate of Talib Hussain) be given the option to provide funding to 1/3 rd the value of the proposed loan. TanH stated that whilst Talibs estate may have a beneficial interest in KTA for the purpose of this meeting it was irrelevant as the meeting was a meeting of the board of directors. KH was not open to Bank Funding until such beneficial owners had explored leveraging their own assets. KH intimated clearly his desire to do this.”

“Following further enquiry from TazH, TanH summarised that the ideal situation would be a 50/50 split of the proposed facility, a £250k loan each to both Pewsham and Worleys but likely to be £200k each site with a £100k overdraft facility. TazH emphasised that in the absence of any participation of other beneficial stakeholders that a vote of directors could result in an unfavourable outcome to KTA and the directors. TanH reiterated that the meeting was that of the board of directors and therefore a decision would be made purely by those individuals. Despite the protestations by TazH a vote was called with TanH and AH voting in favour of the application of funding with KH voting against. TazH wished to have committed to the minutes that it be noted that a 50% shareholder (KH) had not agreed with the application of funding and that additionally that a representative from the Estate of Talib Hussain had not been notified of the meeting having taken place.”

“Meeting was opening by Tanvier Hussain (TH) who set out that he had called the Meeting of the Board of Directors so as to conclude on the 23 March 2020 resolution to apply for funding. TH specified that the Company intended to enter into 2 loan agreements of £200,000 each and that the Board of Directors would be asked to vote in respect to the Resolution re Loan Agreement (per Royal Bank of Scotland plc document reference numbers 851786500 and 434786500). TH continued to read out the following: Resolution re Loan Agreement After due consideration of all the circumstances and on being satisfied that it is for the benefit of the Company and in the interests of the Company for the purpose of carrying on its business to enter into a loan agreement (the Agreement) in respect of a Loan of £200,000 from the Royal Bank of Scotland plc (the Bank) in the form now produced, and incorporating the Bank's Base Rate Loan Terms, it was resolved that Tanvier Hussain be authorised to sign on behalf of the Company the Agreement and any other documents required by the Bank in connection to the Agreement. TH called a vote in respect to the aforementioned Resolution re Loan Agreement (the Resolution). Both TH and Allah Hussain voted in favour of the Resolution and with that it was deemed that the Resolution has been passed. TH thanked the directors and the meeting was closed at 14.04.”

“I've considered your request to grant you a mandate for Bankline with Tan. We would like to note that only one director has ever had the permissions for Bankline. We do not therefore understand your purpose for requesting to expand these permissions. Having considered your request at length, Tan and I, as a majority of the directors of KTA, do not consider that it would be in best interests of the company to accept your request. I have further received an email today from a man called Paul Eddington who said that you had instructed him to carry out an investigation into an allegation that Tan had not complied with your instruction that he should be suspended. I have informed Mr Eddington that you do not have authority to procure this investigation against the wishes of the other directors and I have asked him to cease carrying out any work for the company. Please refrain from carrying out any further steps to investigate Tan unless and until you and I have discussed and agreed a position on behalf of the company. I would also like to inform you that I have appointed Les Allen and Paul Noble of Mishcon de Reya to advise Tan and myself on the alleged unauthorised payments referred to in your letter to Tan dated 28 May 2020. On our instruction Mishcon de Reya have contacted HMRC to inform them that we wish to make a disclosure of potential tax irregularities. Once we've heard back from HMRC, we will discuss this with you in more detail.”

“Appointment of new Director”

“Meeting was opening by TH who set out that he had called the Meeting of the Board of Directors so as to put forward the motion to appoint Shahzad Akhtar (SA) as a director of the Company. TH thanked the directors in attendance and proceeded to explain why he would like to propose to the Board, SA as new Director. TH stated that SA’s appointment would bring a balance and impartiality to the board and that the board will benefit from bringing in a third party who is not tainted by the pending HMRC investigation. TH continued that the requirement to appoint a fresh director is driven by the following: 1. Review operating strategy, structure and contribution of individual sites to the whole group. 2. Undertake a strategic review of the group 3. Oversee the current shareholder disagreements and the pending HMRC investigation. TH again stressed that SA will bring impartiality, balance and neutrality to the board, along with valuable commercial experience that will help maintain the board as a well-functioning team. TH asked AH if he had any further comments prior to tabling the motion. AH highlighted that TH had managed the Company for a long time and the appointment of SA will place a 3rd party on the board of directors, whom [sic] will be unbiased and bring fresh ideas to the Company. TH tabled the motion for the Appointment of Shahzad Akhtar as a Director of KTA Group Limited. TH and AH voted in favour and the motion carried. TH thanked the directors and the meeting was closed at 14.06.”

“1. Other than those that have already been dealt with previously in respect of Mazamal Hussain, whether any payments have been made since incorporation using Company funds to, or for the benefit of, any directors or their families including, but not limited to, the data provided by Robin Somerville. 2. If there were any such payments, we are to provide the Board with details of each transaction that did not relate to genuine business expenditure. 3. Whether any payments were declared appropriately and whether the relevant tax and other deductions were made. 4. If there were any payments, we are to quantify to what extent they create any liability to HMRC or similar on the part of the Company. 5. If there were any payments, we are to assess whether they breach any of the Company's banking terms or covenants. 6. Calculate the total amount of financial support provided by Khadim Hussain to the Company since incorporation. 7. Calculate the extent of Mazamal's indebtedness to the Company at its peak and identify the extent this was netted off by any credit held on behalf of Khadim and/or whether any liability to HMRC relating to Mazamal, was paid by Khadim direct or otherwise. 8. We are to consider whether there is any evidence to support a suggestion that Talib agreed to swap equity for debt at any time.”

“Attached is the original letter from UHY, covering their scope of work. This was based on when KH asked them to investigate the alleged funds I had taken out. This investigation was stopped as it did not have board approval. When we appoint UHY next week, is every one ok to confirm their scope of work no 6 and 7.”

“Yes, no 6 covers off KH loan accounts how much did he put in? No 7 covers off how much did Louie take out. So in essence trying to prove KH put in X and Louie took out Y, so there is no money due back to KH.”

“Shaz: I would like an understanding how the businesses works and fit together. Tan; Corner rented out, Chippenham side (inc AM Auto care and Sawmills) run by me. Worleys run by Khadim. All have separate management reports that are combined at year end. Shaz: How does the banking fit in. Tan: Pewsham, AM and Sawmills all have their own bank account with RBS. Worleys has its own bank account with RBS. Corner has its own bank account. Each business has its own bank account. Shaz: What is the overdraft, how does it work. Tan; Explains overdraft. Shaz: Tan do you have keys for Worleys and does Khadim have keys for Pewsham. Who signs the cheques at the businesses? Tan: Chippenhams side have always been signed by my Father or myself. High Wycombe has always been signed by Khadim/Louie. We don’t have keys for each other’s businesses. I am the only person to have online authority to authorise online payments. So I authorise all the online payments. Can I just add we have only ever had one person authorised to do this before me it was Louie. Shaz: As I understand these are really run as separate businesses. I read somewhere in one of the position statements “We provided them with a stock of Cars”

“12/08 [SA]: - SA explained the requirement for engagement of UHY/ASE and distinction between current financial investigation through MDR. - KH expressed dissatisfaction of previous request for the same (prior to SA appointment) and requested disclosure in terms of engagement with UHY/ASE. - SA agreed to provide all Directors with full details of KTA report, post analysis. - SA requested approval to proceed with appointment. Points - AH agreed, TH agreed, KH disagreed - carried.” “18/07 [SA]: - SA requested information regarding banking arrangements of the group as a whole and individual account view by business including overdraft arrangements, use and utilisation. - TH explained the current structure and use of each account for Pewsham, Worleys and Corner Garage. - SA to request a meeting with Richard Boyce @ RBS and Directors to discuss options of practical accounts divestment for the group. Points - agreed. 12/08 [SA]: - SA reiterated the divestment of business accounts and requested approval to proceed with action. Points - AH agreed, TH agreed, KH disagreed - carried.”

“Obviously they recorded the meeting, seeing the below reply”

“1. Alternate Director item added to agenda. 2. KH to provide context and motion to be put to vote. 3. KH reasoning was rejected; ‘behaviour of the board' and ‘unfair prejudice’: - There have been no formal board meetings prior to SA appointment and no records/minutes of meetings/decisions and hence little or no formal accountability across the business. - No update provided by KH on business performance/operations. - KH has previously chosen not to attend board meetings, e.g. a handful in 2020 for the CIBLs loans where most were missed by KH.”

“I'd like to reiterate a few points: For governance purposes, the board meeting is the correct forum. All discussions are transparent for the attendees. Every director present is free to discuss and put forward their views on each agenda/discussion item, which are correctly captured in the minutes. The minutes of the previous meeting are put to the board for approval. Shahzad has been appointed as Director in accordance with the companies Articles of Association. His role is clearly documented and he continues to fulfill the duties in accordance to the role and in line with the companies memorandum of articles. All matters related to the memorandum of articles and important to the KTA Group Ltd are to communicated to all Directors.”

“Here below is a draft notice terminating Tazamal’s employment to be signed by Shahzad himself. I obtained this from Nadeem.”

“How/when is this to be executed?”

“40. The board meetings make me feel extremely anxious and about three days before the meetings I get really stressed. They confirm the timings at the last minute and no real agendas are published. It feels like Shahzad and Tan come prepared to give me a hard time and make sure I cannot prepare. Allah doesn’t say anything. They are now starting to quiz me like I am in court. I have just been an object for them to target and bully and I am fed up with it. I don’t want to talk to them and therefore I have now resorted to asking them to put their questions to me in writing and I will answer by email which Bobby helps me with given he is more capable and educated than me. It now appears that Pervaiz is, in fact, heavily involved in helping the Respondent side and guiding them how to push me out. Even before the case disclosure process, I thought I still trusted them. I have now learnt not to say a word as anything I do say gets turned around anyway. They twist my words to suit them and their story. They try and prove I have had no positive impact on the business throughout its life and all the time ganging up on me. Shahzad constantly fails to acknowledge my contributions to the Company. He is very dismissive and insulting towards me but very accommodating towards Tan and Allah. The minutes that have been issued by Shahzad try and show me as causing problems and Tan as being the success behind the Business. My review of Board meeting minutes are not captured or accepted. The board votes on motions from Shahzad which are consistently agreed by Tan and Allah. It is clear that they don’t want independent scrutiny of the Company. I don’t feel these board meetings have achieved anything for the Business. 41. I could not believe the emails that we received from the disclosure exercise. They were setting out how to prove I am incompetent, how to pressure me, how to hassle me and prove to the board that I am unfit. There are scripted conversations provided by Tan to Shahzad to tell him exactly what to say in trying to help Tan and Allah’s case against me. The scripted conversations detail how Shahzad, alongside Tan will pressure me and other members of staff in a threatening manner. There are emails with Pervaiz (Shahzad’s brother) instructing the actions of Tan and Shahzad, like he is controlling them. For example, he planned for Shahzad and Tan to fire Bobby from his role for no apparent reason. I don’t trust them anymore.”

“43. Bobby has been involved in the management of Worleys for a number of years and drove the change in franchise to Suzuki, with my support. The business is making money. Bobby has been involved because he is my son and I trust him to look after my interest as a shareholder in the Company. He also discovered the extractions, some of which Tan and Allah have been forced to stop. Other extractions continue, but I have no board control to be able to stop them even though I have tried. The main person I had trusted historically was Tan. But I have now completely lost my trust in him. All I wanted previously was for Bobby to help me out and take over the business and work with the family productively for everyone’s benefit. The actions of Tan, Allah and Shahzad now make this impossible. I have worked all my life to ensure the success of this business, that it will not only support the owners but it will support everyone that works within it. With the amount of time Bobby has been involved, the development he has made has been most impressive. He has demonstrated he has the ability to take and drive this business to be in line with our principles. In the short term I was hoping to alleviate the pressure and stress on me given the unbalanced board by rebalancing the board to be the two shareholders and an agreed independent Director, however the underhanded manner in which Tan and Allah have colluded with members of the family who have their own agendas, has stopped this from happening. In the longer term should I be successful in my claim and I’m awarded the opportunity of purchasing the shares held in Allah’s name, we have a succession plan in place. This includes retaining and operating all sites as well as looking for new opportunities. The management will be primarily carried out by Nigel and Bobby and I intend on staying close to the business as its founder.”

“Did you think there was any point in having a board meeting with Allah and Tan? A. I only found out afterwards they were stitched up, they were stitching me up. Q. Did you think at this time there was any point in having a board meeting? A. No, because I was the one keep joining the board meeting every time and they are the one keep bringing the things to me, such as no agenda. In every meeting, sir, they give me less than 24 hours, and a one— line agenda. What could I say on that agenda? Q. What about on 26 March 2020: did you think that the board meeting you attended had any meaning to it? A. Well, what I could work out it was meaning there, but for their benefit. Q. So did you agree or disagree with Bobby when he said there was a lack of balance on the board and that any vote drawn would be meaningless? A. That's correct. This is true. It was meaningless for me, because they were two to one and their accountant was in their pocket. Q. And you've been one of three directors since 2009, haven't you? A. Correct. Q. And, therefore, if there had been board governance in the period from 2009 onwards, you could are have been outvoted? A. It didn't came to that scenario, because it was a family trust. It only came to light when extraction found out and then they used the board majority to cover their extractions. Q. You were never concerned about being a minority amongst directors because you agreed and understood that board meetings were unnecessary in the family business context? A. I -- say it to you again -- trusted them and there was no need for those board meeting. What they're doing now you can see it very clearly , but those days once a year agreed. Whatever it's signed for, I signed it blindly.” “Q. Can we look at page E23320, please. So this is a meeting that happened after the March meeting on 14 April 2020, meeting of the board of directors, and it records: "Apologies for absence Khadim Hussain." So you didn't attend this meeting? A. Quite right. Q. Quite right because? A. Because I knew what they were going to ask. Q. So in April 2020 you'd decided that there was no point in you taking part in any or more board meetings? A. No. What are you trying to get to me? Q. I'm not trying to get anything other than an understanding of what your state of mind was? A. Yeah. Go on. Q. And by April 2020 you had decided there was no point you turning up to a board meeting? A. What was going to be discussed? That's the main thing. CHIEF ICCJ BRIGGS: Just answer the question, rather than asking a question. A. Sorry. Sorry. My apologies. CHIEF ICCJ BRIGGS: So the question to you was: did you see a point in turning up to any more board meetings after April 2020? A. I did, sir, yes. I would attend them, yes. MR MCDONAGH: In April 2020, at this particular board meeting, you saw no point in attending? A. Well, I didn't. Q. Because you saw no point in doing so. You just told me that. A. Okay. Q. Can we go to E233321, please. Here is a meeting held on 30 June 2020 at which the matter of business was the appointment of an additional director, and you didn't attend that meeting, did you? A. I knew because they -- with that meeting I remember it. They didn't even send me the name or CV or any reference on their director and once I found out in the meeting it was -- it was new director introduced. I knew exactly what they're going to do. They're going to stitch me up, because Shahzad Akhtar already hate me and he wasn't an independent director, which is we suggested early on. So there ie I knew from then onward it's going to be completely stitch up with me, such as the Shahzad Akhtar, which is my statement said, he is family. He has -- he has not liked me over his life. Q. But my question had been -- A. Yeah. Q. -- you didn't attend this meeting because you didn't see any point attending this meeting either? A. Because I wasn't informed by the board what it's all about. Q. Well, you knew -- A. Give me the name, give me his experience, give me what he'd been doing, but that's the reason I did not turn up. Q. You didn't turn up at the meeting to say I can't accept this appointment because you have given me the name in advance, you haven't given me the proper information I need, you didn't do that? A. But I already rejected that, because I knew I am going to be outvoted, so there ie I let them get on with it. Q. Can we go to E23325, please. And here is a minute of a meeting -- A. Can you blow it a bit up, please. Q. The minute is by Shahzad it says at the top. The meeting took place on 12 August 2020 and in the box in the middle of the page. Group update, discussion and status on the right: "SA [ Shahzad] requested each director to provide an operational status of each business and note this will be an ongoing update. TH (Tan) advised challenges during C19. Update on staff redundancies, business and workshop recovery and Khadim declined." And that's an accurate minute of that meeting, isn't it? A. The thing is like -- CHIEF ICCJ BRIGGS: Is it an accurate recording of what was said? A. What are you trying to say, sir? CHIEF ICCJ BRIGGS: Well, what's been put there is you declined and no reason was provided or alternative offered; is that correct? A. Can I have that a little bit bigger? Right. Okay. CHIEF ICCJ BRIGGS: So you can see the discussion on the far left — hand box. A. On the right—hand side? CHIEF ICCJ BRIGGS: Left-hand box, discussion between the directors. A. Yes. CHIEF ICCJ BRIGGS: It's about a group update and then SA and TH provided some feedback and you declined. A. Yeah. CHIEF ICCJ BRIGGS: Is that an accurate recording -- A. Yes, that's accurate. CHIEF ICCJ BRIGGS: -- of what transpired? MR MCDONAGH: And the short point, Mr Hussain, is that you weren't interested in participating in regular board meetings, were you? A. I was, yes. I was interested. Q. But you declined to contribute to them? A. The reason for it was because -- Q. Is that a " yes"? A. Sorry. Q. Was that a "yes"? You said " reason for it". Is that " Yes, the reason for it"? A. Go on. Sorry. Q. You said you were interested in attending them and I put to you that you weren't interested in participating in them? A. I was interested in participating. Q. But you didn't participate in them? A. Correct.”

“50…..Since I started asking questions in 2019 about where monies had gone, problems started occurring and Dad started being excluded from certain things in the business. For example, Tan and Allah sent a letter to the bank stating that they had board majority and no written transfer/payment request should be accepted without the majority of the board deciding. This concept of a board majority was something that had never been mentioned or discussed before. Because Allah was not actually working in the business, I believe Tan created Allah’s mailbox to reinforce the decisions he was making were approved by the majority of the board. On a number of occasions, we received emails from Tan signed off with the words “Board Majority”.” “51. In June 2020, Dad and I started getting information together and gathering emails from Tan particularly in relation to the schedules. Towards the end of June, we received a request for a board meeting, the request didn’t include me, and I started to become isolated. This board meeting was in relation to an appointment of a director. The board meeting request was received on Friday and then the meeting was for the following Tuesday. No discussions were had in relation to the appointment and no CVs were circulated nor were we involved in any interviews. We made complaint to Tan and Allah’s solicitors about the underhanded way this was taking place along with the lack of notice. Dad did not attend as we felt the whole approach was wrong, especially after Tan had agreed to resign as a Director a month before but failed to do so. Also, given Tan’s behaviour in the previous 6 months, we also knew that no matter what Dad would have said regarding the appointment, in the end Tan would have called a vote and his father would have voted with him irrespective of Dad’s views. Tan had started using the board majority concept as a means to push through everything he wanted. We came to know the meeting lasted around 3 minutes according to the minutes of the meeting. It stated that in light of the ongoing family dispute they had nominated Shahzad Akhtar as a director. They stated he was impartial and independent and would bring fresh ideas to the board. As set out previously, Shahzad is Talib’s youngest son. For the reasons I have given above, and as follows, I don’t feel he is independent nor impartial, especially given his history with Dad. 52. We guessed prior to the meeting that the new director would be one of Talib’s sons. We had a feeling it was going to be Shahzad as since this dispute had started, around late 2019, Tan had been speaking to Shahzad’s brothers, Pervaiz and Javid, a lot. Historically they do not like my Dad. Shahzad had been the black sheep of the family and only stayed in touch when he wanted something. He caused a lot of grief when working at Worleys in his early years as previously set out. He left the family when he got married. We never thought he had any desire or reasoning for being a director. His background is an IT contractor with zero board experience. He knows nothing about the motor trade. As previously stated, in paragraph 12, Dad tried to train him up as a mechanic, but he had no interest in this. It did transpire later, after his appointment, that this had been planned by Tan, Pervaiz and Javid. In addition to what I have seen in the Respondent’s disclosure, I was told this by Shahzad’s nephew (Javid’s son), in a conversation where he explained how Pervaiz came to their house and offered Javid the directorship first. Neither Pervaiz or Javid were willing to take it for fear of exposure to HMRC given the voluntary disclosure Tan and Allah had made. I was told they then offered it to Shahzad reassuring him they would support him in actioning the grudges they held against Dad I was sceptical at first as it seemed like an elaborate plan that wasn’t well thought out and didn’t think anybody would want to put themselves in such a position especially given legal action was imminent. I took the conversation with a pinch of a salt, however, from what I have now seen in the disclosed emails, I am genuinely shocked at how true it was. 53. It was Dad’s preference for me to be on the board as his alternate director, but Tan, Allah and Shahzad wouldn’t let it happen. The board meetings have hugely affected Dad. He finds them so distressing that I fear the stress could kill him. He can’t sleep and every two weeks he knows the board meetings are coming and he gets all worked up. I too get worked up as they are so obviously scripted. The board meetings have turned into a general bullying exercise against Dad. They have recently come with the tactic of using ‘any other business’ to question and interrogate Dad so they don’t have to mention it in the agenda giving him advance notice. I try and help Dad as much as I can in the background trying to give generic answers. The board meetings have not been effective. Tan and Allah, assisted by Shahzad, have been trying to use the board meetings to help them in their defence to these proceedings and in particular to show that Dad is unfit and can’t run a business which is not the case at all. I have informed Dad that there is no shame of needing help from others but because of his age, his pride and his upbringing, to him, there is shame when you need help from others. In every single board meeting they act like they are in court and they just cross examine Dad. I tell Dad he should say to them if they have any questions, they should put them in an email as he can’t have verbal conversations with them anymore.”

“Q. Can I ask you to look at paragraph 18 of your witness 8 statement at page A148. It begins: In or around March 2020, Taz had a disagreement with Tan and I was asked by Taz to carry out some investigations. I had to do a spreadsheet of how much Tan and other family members at Pewsham had earned ..." That's on the next page: "... as far back as I could possibly go which was about 2001. I then had copies of p45's going back a little bit further." And then at 19, you say: "I was then asked to log into the online banking systems and go through each of the individual banking transactions for Pewsham." And you remember doing that? A. Yes. Q. And you could access this from Worleys? A. From the Bankline system, yes, that we've got for the bank. Q. And you didn't need any permission from Tan to access this? A. No, because Bobby gave me the instructions to do so. Q. So he had the access? A. Nigel, myself and Taz have got information for the bank, so, yeah. Q. So any one of you could have accessed this information, and you could have accessed that information at any point over, say, the last five years, the last ten years? A. The banking only went up to the last 15 months or 18 months or something like that. And then if you wanted historic, then you have to ask the bank for their copy of cheques. Q. Yes, but you could have asked the bank for, say, five years ago; you could have made the request -- A. Yeah, yeah, but you'd have to wait for the information. Yes. Q. Yes, and they would have provided it to you? A. Yeah.”

“51. The first dividends were in 2013, this was a paper exercise only to clear up the previous tax investigation, for me and Khad. On our accountant's advice. 52. There were no discussions ever on withdrawals. We never took dividends, because each family would just draw from their own businesses. 53. The next dividends were not taken until 2016. Khadim did not seek my approval or consult me. He just withdrew the dividends. There was no meeting or agreement, Khadim just chose how much he wanted to withdraw. Being a 50% shareholder, I decided to withdraw as well. 54. The following year in 2017 I waived my right to withdraw dividends, Khadim did withdraw. Again, Khadim never sought my approval, or discussed with me. Khadim alone chose how much to withdraw. I was hoping as I had waived my right in 2017, Khadim would then stop talking dividends in the following years. That did not happen so in 2018 and 2019 I withdrew dividends as well. Again, Khadim has never sought my permission. Being a 50% shareholder, I just take whatever Khadim takes. If Worley's bank balance had been in positive, I really would have no objections in Khadim withdrawing dividends. It goes back to each family withdrawing from their own businesses. 55. I have never had a conversation with Khad regarding dividends, such as how much? when and why? The family have only ever withdrawn wages from their own business bank accounts. Khadim and his family have only withdrawn from Worleys Bank Account. My family have only ever withdrawn from Pewsham Garage's bank account. The businesses have always had separate bank accounts, at no time have our families withdrawn from each other's business account. I would have no objections in Khad withdrawing dividends regardless of the amount, providing the business he controlled could support this. I felt he was just going to run his overdraft up again and then he would want to take another loan in the company name to pay off the Worleys overdraft.”

“Q. Yes. And there was no decision made that there would be unequal board representation; that was just the result -- A. Sorry? Q. You and Khadim didn't decide that there should no longer be equal board representation? A. No. Q. It just happened accidentally? A. That's right, yeah. Q. Now, between 2009 and 2020 -- A. Yeah. Q. -- nothing changed, did it, in terms of the way the business functioned? A. No -- Q. Wait, wait, despite the fact that your side, as it were, had two board members and Khadim only had one? A. Yeah. Q. It didn't make any difference to the way the business functioned? A. No. Q. You didn't have meetings? A. No. Q. You didn't have meetings? A. No. Q. And you didn't have any disagreements which led to you and Tanvier outvoting Khadim? A. Yeah, only disagreement I had, Worleys overdraft. If they -- that is the -- that was -- that still is the most established business in our family. If there were just (inaudible) evenly, I wouldn't have a problem what he do with the money and nor did I ever have a problem what we do with the money, who we employ, who we fire, always been fine. The problem is they dug us such a big black hole, which we started filling it, we never filled. 1.4 million went in '13, couple a year later, 140,000 overdraft. I mean, that's -- where is he? Why the other place didn't have the overdraft? Why didn't he create the overdraft? He took money. We took money. Q. What I'm asking you about -- A. But that never(?) created the overdraft. Q. What I'm asking you about is the use of your board majority. So you had a theoretical majority from 2009 -- A. Yeah. Q -- to 2019? A. Yeah. Q. But at no point in those ten years did you say to Khadim, “You can't do this” or “You must do this and we have a majority so we can make you"? A. Yeah. Q. That's fair, isn't it? A. Yeah, that's a fact. I never said nothing. They only started -- I was under the impression they are running the overdraft, they will do something, ie they turn it over loan and start paying it rather than playing on family finance. We was thinking about to investing that money to take the business to the next stage. Q. And there was an understanding between you as shareholders that each of you would have equal rights of management A. Sorry Q. There was an understanding between you and Khadim, as shareholders, that you would both have equal rights of management? A. Both have? Q. Equal. The same right -- A. Equal right for the management. Q. Yes, because you were 50/50 shareholders. A. Yeah, yeah. Well, not only between us, it's (inaudible) company has 50/50. Q. And the understanding between you, and I think you agree with this, is that he would manage Worleys, and you, subsequently or with Tanvier would manage Pewsham? A. Yeah. But wherever we situated geographically. Q. Yes. A. We live there, we manage there, we are -- we hire or fire whoever we want. He hired or fired whoever he want. When I was at Corner, I hired or fired whatever I want. Nobody interfered at all as long as we didn't ask each other, "Pay my wages, I haven't got the money." Q. And the reality was this, wasn't it: that you were entitled to expect to manage Pewsham day to day and Khadim was entitled to expect that he would be able to manage Worleys day to day? A. Yes, yes. Q. Now, that changes in 2019, and I'm going to ask you to look at a document, please, which is at FD6207. (Pause). A. Yes. Q. Now, do you recognise that document? A. Absolutely, yes. Q. If you just scroll down, it's a letter that says it's from you -- sorry, not says it's from you, says it's from Allah and Tan. Is that your signature? A. That's my signature. Q. And we see what it says, so this is written to Mr Boyce at NatWest. A. Sorry? Q. You see it's written to a Mr Boyce at NatWest? A. NatWest? Q. Yes. That was the company bank, wasn't it? A. Yes. Q. And it says and this is the second line: “All written transfer request from all group bank accounts, have to be authorized in writing." And then the next sentence: "By order of Allah Hussain or Mr Tanvier Hussain, being the majority of appointed directors on the board of KTA Group Limited." A. Yeah. Q. So, in other words -- A. Yeah. Q. -- one or either of you had to countersign? A. Mmm.”

“Q. So far as you know, has Pervaiz played any part in the management of the company -- A. Yeah. -- or of the board since then? A. Sorry? Q. Has Pervaiz played any part in the management of the company or the board - A. No. Q. -- since then? A. No. Q. You're sure about that? A. Not that I'm aware of. Q. Could we look at page FF1805. It will come up on the screen. 12 Now, there are two emails on this page, and you're not -- neither of them are sent to you. If you just want to start at the lower one, you see it says, From: P Akhtar"? Mr Hussain? I just want to make sure we're looking at the right place. A. The bottom paragraph? Q. The bottom email, let's just identify who it's sent from and who it's sent to. A. "As part of UHY report ..." Q. Can we just begin at the beginning of that email. You see it says, “From: “P Akhtar"? A. Oh, “From: P Akhtar". Right, yeah. Q. And I think that's Pervaiz Akhtar, you may not know, I'm sure we'll establish it in due course. It's sent on 14 August 2020 at 11.20, and it's sent to Tan and Shahzad. And, of course, Shahzad by then is a director. A. Yeah. Q. And now do you want to read it? (Pause). A. Yeah, he's only advising the -- his cousins. It's all for -- good for the company or not, but he (inaudible) wind the company down. Q. Have you read the whole of this email? A. Mmm? Q. Have you read the whole of this email? A. Yeah. Q. Have you seen it before? Have you seen it before? A. No. Q. Does it come as a surprise to you that Pervaiz Akhtar A. Sorry? Q. Does it come as a surprise to you that Pervaiz Akhtar is advising Tan and Shahzad about your company? A. Yeah, they're cousins, they can talk. Q. If you look at the email, point (iv), it says: "After the appointment of 2 additional directors, propose that Mr AH [ I think that's you] resign as director." A. It didn't happen, did it? Q. Were you about to say something? A. It didn't happen. Q. No. But you didn't know about this email. Did you know that they were having a conversation about your resigning as a director? A. No. Q. And right at the end, it says: "Point iv. would strengthen the argument against Mr KH [Khadim Hussain] as we prove he's an absent director." A. Yeah. It is, yeah. Q. If we look at the top, there's a reply from Shahzad. A. On the top? Q. Yes, you see he replies to his brother's email. He says: "Yes, best to advise AH to step down, age/health etc in favour of strengthening the board, going forward." And then in the next sentence: "We require a unilateral push to build a case against KH as incompetent and unfit to continue in his current capacity." A. I didn't heard that before. I didn't see that. Q. Now, your expectations of an independent director -- A. Yeah. Q. -- would presumably have included consulting all the shareholders -- A. Yeah. Q. -- acting transparently. So, in other words, everybody can see what you're discussing? A. Yeah. Q. You're not talking only to some directors and not others. 3 Yes, you agree with that A. Yeah, yeah. Q. So no side conversations, not favouring one shareholder over another? A. Yeah. Q. That was one of your particular concerns, wasn't it? A. Yeah. Q. And there's a big family dispute and I think you say or imply that you wanted somebody who was going to build trust where there wasn't trust? A. Yeah, that's right. Q. But now you see apparently for the first time that they are talking privately about getting you to leave the company? A. Yeah. Q. Yes? A. Yeah. And also "proving that Khadim is incompetent and unfit to continue in his current capacity." A. Yeah. Q. Comparing this to your intentions and expectations, is this Shahzad doing what you hoped he would do or something different? A. Sorry? Q. Is this the way you hoped Shahzad would behave as an independent director? A. No.” “Q. So we're going back in time a little here, 19 July 2020. Do you see that? So it's the second email. We'll look at the top email in a moment. Do you see that? It's one sent by Pervaiz Akhtar on 19 July at 15.54. And, once again, it's sent to Tan and Shahzad, but not you. (Pause). Now, I don't think you need to bother with the references to points 16, 17 and 21, because I think that's to a judgment. But what I want you to focus on, please, are: " I think as a result of this article we should strengthen the board powers against [ Khadim Hussain]. I will discuss with Nadeem and see what we can/should do by way of introducing new board resolution." Do you see that? A. Yeah, I see that. Q. Do you have a view as to who Nadeem is? A. Pardon? Q. Who is Nadeem in that email? I know it's not addressed to you, but ... A. Nadeem, yes. Nadeem is a solicitor. Q So it might be the gentleman with glasses who has been diligently taking notes behind Mr McDonagh? A. Sorry? Q. You think that's -- A. Nadeem. 3. Q. I see. So, once again, we see Mr Akhtar advising Tan and Shahzad in a private conversation, private from you? A. I can see that, yeah. Q. Have you seen this email before? A. No, no. Q. And it's another example, isn't it, of just the sort of side conversation and plotting -- A. Yeah. Q. -- and siding with one side of the family rather than another? A. Yeah. Q. That you wanted to avoid? A. Yeah. Q. Yes? A. Yeah.”

"Shahzad and Tan If you require the need to reply ... something along the following may be sent. "

“On the 28/5/2020 I received an email from Khadim informing me he was suspending me. He had made this decision unilaterally without consulting the board. He also informed Pewsham Garages Sales Manager Chris Ashton, that I was being suspended, this caused a lot of apprehension and panic with the staff. Why would Khadim suspend me? He would know that this would jeopardise the Chippenham side of the business, we were just coming out of lock down the business was in a perilous position. The reason could only be that Khadim wanted control of the whole group. Without me employed it would allow Khadim to gain control, and possibly shut the Chippenham side down. This would have caused a great deal of harm to my father's 50% share in KTA. This caused a huge amount of distress for me and my family. My young family depended on me. (Extremely Clearly).”

“Your father hadn't seen these emails. A. No. Q. I got the impression that he didn't know that behind his back you were talking about moving him on. A. My father knew I was talking to Pervaiz, but he hadn't seen these emails, that's correct. Q. But apart from the influence we see, the advice being given by Pervaiz, it's the second line of Shahzad's response that I just want you to focus on: "We require a unilateral push to build a case against [Khadim] as incompetent and unfit to continue in his current capacity." Now, I asked you a few minutes ago whether Shahzad had taken an even—handed approach as between your side and Khadim's side, and you said inside board meetings he had. Now, is this the conduct outside board meetings that you were alluding to? A. I agree, there is probably a little bit of bad behaviour. Probably wasn't the right thing to do, hands up. But where has anything in that email reflected what's actually happened within the company at the board meeting? Yeah, there is no other way to address it, there is some bad behaviour there and I would agree, that KH is still a director, AH is a director. Nothing's come, nothing from there has appeared in the board minutes or the board. Q. Could we next look, please, at FF4092. Here we see an email from Pervaiz to you and Shahzad, on 22 September, so a couple of months later. And he is basically dictating a message for you to send. You say at the top, "I will send this. So that's the first point. I mean, it's the mere fact that he's telling you what to write and that you do so, or say you will do so. But the other thing I wanted to draw your attention to is one of the things he says, he says that what should be written includes this. Do you see, it says: "I'd like to reiterate a few points: For governance purposes, the board meeting is the correct forum. All discussions are transparent for the attendees. Every director present is free to discuss ..." Now, was this behaviour behind the scenes, between you and Shahzad and Pervaiz, transparent? A. Not in the sense that Khadim, he wasn't obviously copied into it. Yeah, I agree, it was -- comes over as bad behaviour, but it's correct the fact that the board meeting is the correct forum for every director. Every director should be free and present to discuss and put forward their views. But yeah, I get where you're coming from, it doesn't look particularly good and it is bad behaviour. Q. Yes, and it wasn't even transparent to your father, because he didn't know about this, did he? A. No, I didn't -- he knew I was talking to Pervaiz, but he obviously hadn't seen the emails.”

“Q. On your case, I think possibly everybody's case, Worleys and Pewsham for ever since anyone can remember have been run with different shareholders and their relatives making decisions about things like this in relation to their own sites. But this is you, with your co—conspirators, interfering in who is employed and working at Worleys, isn't it? A. I disagree, because yes, we did think about it, we never carried it out. Khad has still got all his employees there. Khad is the one who tried to get rid of me, May 28th. Yeah, we've thought about it, but we haven't -- we haven't carried it through. Yeah, you know, it's -- it's like, you know, you can't be prosecuted for a thought, can you, or a discussion? It never happened, it never materialised. Khad has still got all his employees, he's still got Nigel Findlow there, he's still got Taz there. We haven't changed his employment structure in any way. We haven't told him he can't employ Taz. Yeah, we did think about it, yeah, and there is an element of bad behaviour, I completely agree with that, yeah. Yeah, I'm sorry. But we haven't -- we haven't gone through with it. We could have, we had the board majority to do it. He wasn't employed for two years, we didn't even have to give him any notice, we could have just moved him on. But we didn't. We could have moved Nigel on after the fiasco with the bank reconciliations, but we didn't. We realised that Worleys has always made their staff decisions and we've left. I mean, I can't think of anyone we've removed or there isn't anyone which we've removed from Worleys. Q. Two things. First of all, I entirely accept that you could theoretically have behaved even worse than you had. A. We could have fired Taz and we could have fired Nigel.”

"In 2006 Khad lent the Business £504 000k ..."

"... where did this come from?"

“Q. You were just mentioning, getting ahead of ourselves, the lack of buy in, as you described it, from Khadim's side. And, of course, you talk about that in your witness statement. Now, in a context where there is a family dispute and there has been a failed mediation, and out of the blue, from Khadim's perspective, a proposal is made to appoint a director, but that person is not even named, as a neutral independent non—executive director, who wants to build trust and agreement between these parties, what do you think about the way it was done? A. It's an interesting one, because you say that, but I'd already heard that Khadim's sons had inadvertently approached my older brother to ask him to be a director and were testing the water. And he wasn't up for it. So the same could be said on that side. Q. So older brother as in Pervaiz? A. As in Jawad. Q. I'm getting negative expressions. We say that's not true -- A. This was at the same time that obviously the conversations were occurring between Tan and I. So there were a number of alternatives. But yeah -- so it doesn't make sense to me. Q. I'm told that's not true. But in a way, it's not the point, is it? A. Well, it was, because my nephew was approached by Tazamal asking him to have a word with his dad, which is my older brother, to see how he would feel about taking on a directorship at the garage, to see how the land lies, to test the water. So, from my perspective, it is true.”

“Q. And the reason I wanted to show you the bottom is that we see on 3 June, there's an email from Paul Daly to Allah saying that he's attaching a copy of an engagement letter. Now, if we scroll up a bit, so we can see the next message, so this is Sunday, 12 July, so you've been on board for a bit less than two weeks by then, Tanvier forwards that email with its engagement letter to you and to Pervaiz. So, by then, by the time you opened that attachment and read the letter, you would know about the instruction? A. Mm—hmm. Q. And let's just look at what Tan says. He says: "Attached is the original letter from UHY, covering their scope of work. This was based on when [Khadim] asked them to investigate the alleged funds I had taken out. This investigation was stopped as it did not have board approval. When we appoint UHY next week, is every one ok to confirm their scope of work most 6 and 7." You then respond to that same day. Do you see that, just above? A. Yeah. Q. "Are you saying their instruction should be limited to only undertake points 6 and 7?" A. Mm—hmm. Q. Then above that: "Yes no 6 covers off KH loan accounts how much did he put in? "No 7 covers off how much did Louie take out. So in essence trying to prove [Khadim] put in X and Louie took out Y, so there is no money due back to [Khadim]." A. Okay. Q. Okay? Now, this is at a stage when you say you had a completely open mind? A. Yeah, I knew the conversations that were going backwards and forwards though. Q. And it was only later that you started forming the view that Khadim was to blame or he was the one who was being difficult? A. No, not really. At this stage, Tan had already said that, okay, from his perspective, there was going to be an ongoing HMRC investigation. And, for me, because I had no information from any director, apart from Tan, it was a natural course for me to take some form of direction as an introduction into the company and exactly what the issues were from Tan. So yeah, at this point, where Tan is saying in terms of instructions, I needed to get a general handle on the financials of the company and exactly where we were in terms of the balance sheet, in terms of the extractions or possible extractions. So this would have been related to that kind of -- that work that was due to happen. Q. I wasn't expecting you to say that, because the point about this exchange was that it involved UHY being instructed to undertake an inquiry, which removed an investigation into the alleged extractions. A. I didn't see it that way, because -- Q. You didn't understand. A. From my perspective, I needed a heads-up on the company and in terms of the extractions, that would be covered by both UHY being the mandatory auditors for a number of years and the investigation from the HMRC perspective. Q. Two things. The first is this: as I understand your evidence, at this stage, you had an open mind about where the problems lay, you were taking an independent view, you wanted to build trust and agreement. Yes? A. Trying to, yeah. Q. But the effect of this exchange of emails, I suggest, is that you are taking part in a side conversation, as it were, with one of the other directors and somebody who isn't even a director, so Pervaiz, your brother, which involves thesuggestion that UHY will be commissioned to produce a report in order to prove something against Khadim in relation to whether he was due money from the company. A. But I'm sure exactly the same conversations were happening with Khad and his side of the family in terms of getting a strategy in place to discredit Tan's side of the family. And this is what I mean about it's just tit-for-tat, it's six of one, half a dozen of the other. So you've heard Tan's evidence. I'm giving my evidence now. Yes, there were conversations that were had, but I'd spoken to many people, as I'm sure Khadim and his sons had spoken to many people, but ultimately, it's to do with exactly how that was prejudicial to the running of the company. And from my perspective, in my tenure in the last two years, there hasn't been. Taz wasn't given his marching orders. Allah wasn't asked to step down. If you look at net net what was actually achieved in the last two years of me being on board, there's significant more control, there's auditability, there's accountability, the CIBLS loans have been attributed correctly, the overdrafts have been attributed correctly. We've saved Suzuki from actually walking out, because of some of the fraudulent documents that were produced by Nigel Findlow. So you have got to look at things holistically. You can't just take -- cherry pick certain conversations. So, yeah, I'll hold my hands up, we did have these conversations, but I'm sure so did the other side. That's part of a board of directors, is it not? Q. You see that's the problem here. I think everything you just said illustrates the problem. Yes, there were two sides and you are taking sides right at the beginning. A. But it's difficult because -- Q. What's difficult about it? A. It's difficult for anybody. It would be difficult -- you mentioned earlier, why did you not go out to the open market to Tan and find a completely independent director? At the end of the day, if you do that, it's still going to be really difficult for an independent director to form a view, because ultimately, they'll get caught up in the crossfire, because that's just the natural path that things take in terms of this situation. Q. What I'm suggesting to you, and let's do it by reference to this sequence of emails, that you have taken sides straightaway. A. I wouldn't say straightaway at all. Q. Well, it's, what, 12 days since you were told you had been appointed? A. But it's going to be -- it would be likely for me to take a direction from the person that's requested me come on board and the only director that's been intrinsic within an organisation for 20/30 years, who knows what's going on, on the ground. And I've tried to try and get the same level of information from the other side, but that's been a completely closed book. So no, I don't think I've taken sides per se, because all I'm doing is I'm asking for a financial report that gives me an understanding of what the gripe is from Tan. That's not to say that once I have got that information, I would then not challenge that to the other side and say, "We have got this information that pertains to Tan and his father -- sorry, to your side and your family, and we have this information that's been forwarded from HMRC in terms of their investigation", so you combine both together, you then go to a forensic auditor and say, "There you go, you carry out your own analysis."”

“Q. When between the beginning of July, when you were told you had been appointed, and this email on 12 July, do you ask Khadim what his side of things is? A. In terms of what? Q. Anything, any of the things you say that you would have needed to know from him, but he didn't tell you. A. But we didn't have any -- there was no dialogue from him. Q. This is 12 days in. A. It's 12 days in, but I've already been told that -- Q. Did you contact him? A. I tried to. Q. Between 1 July and the 12th? A. Yeah. Yes. Q. Where is that in your witness statement? A. I didn't think I needed to put that in there. I wasn't asked whether I needed to contact him or not. I've just said to you that I've tried on a number of occasions and it's just met with resistance. In board meetings, I've offered to go to his house on my own and automatically there was a defensive procedure that, No, we don't". So I'm not sure how much more I could try. Q. Well, you could try to be independent and you were not being independent within the first two weeks. The appropriate way to have responded to any attempt to get you on side, as it were, in relation to this very selective report, designed to advance Tanvier and Allah's side in the dispute, was to say, "I don't think we should be having these conversations just between us. We ought to be discussing it with Khadim." But that never occurred to you because you never intended to be independent or fair—minded or even—handed? A. Like I said before, the same conversations were more than likely happening on the other side. So it makes no difference. It's just that there's nothing within the other side's disclosure to show that. But I can guarantee you, knowing my family on both sides, that exactly the same would have been happening on that side. Q. None of them joined the board and adopted directors' duties or was claiming to be independent in the way that you say you were? A. Well, I tried. Q. Yes. And can I ask you to look at FF628. Now, we showed Tanvier this earlier and he identified that he had written it. A. Yeah. Q. And that I suggest to you that it was a script for the 12 July meeting -- sorry, the 18 July board meeting. A. It was -- basically, it was the first meeting, so it was an idea of what to expect. And this is what I alluded to earlier, I'm not denying the fact that I'm going to go into an organisation, so I can either be completely green and not understanding what I'm getting into, or I'm going to take some advice from one of the directors in terms of what the expectation is. That's what I've done here. There's nothing wrong with that, in my eye, to actually understand, okay, this is the way it's going to work, I would then expect the other side to basically do exactly the same and say, "Right, fine, you have asked these questions. What about this, this and this question here?" Otherwise the meeting would have just -- we would have gone there with no agenda and nothing to say, apart from, "Hi guys, welcome, Shahzad's now joined the board", and there would have been silence completely. So this is information that I used to talk about. I'm not denying that. Q. It's a script, who will ask what question at what time. A. It's a way for me to get an introduction into the business. I think Tan already said, yes, it was, it was a script, but it's content. Otherwise, like I said, we would sit there and there would be a complete stalemate, there would be nothing to talk about. Q. How did you know there was going to be a stalemate? This was the first meeting. A. Because there's never, ever been any agenda items that have ever been forwarded from the other side. We provided every opportunity to talk in an open forum, like we said previously. There has never been in the last two years any agenda items that have been proposed from the other side that we can discuss at board. Q. I'm not asking you with the benefit of hindsight. I'm asking you about the time when this script was produced. Now, at that stage -- presumably this is before 18 July, at that stage, you had an open mind and you weren't taking sides. You had no reason to believe that you wouldn't discover that Khadim wouldn't engage or that you wouldn't find out from him the things you wanted to know, did you? A. Yeah. I mean, yeah, this is the first board meeting and it was a framework for how the meeting was going to run. I don't deny that. Tan's not denied that. But like I keep saying, it would have been -- there would have been absolutely nothing to discuss in the meeting if we didn't have some kind of starting point and this was a starting point. Q. This is a starting point and finishing point. A. From your perception perhaps, not from mine. It was the first meeting, so it's not the finishing point at all. Q. It's the fact that it's a first meeting which is so revealing, that you had taken sides. In fact, you were always only on one side and this is a stitch up, isn't it, designed to advance one side's agenda over the other? A. I could say the same for the other side.I don't agree with that.”

“Q. Okay. Well, let's see. FF1805 -- is the wrong document, I'm sorry. It's FF780. We'll come back to this one. So this is after the meeting, a couple of days afterwards, July 20th, July 19th. If we just scroll down a bit, it's the third time some of us have looked at this. And it's an email from your brother Pervaiz attaching a judgment and the words I want to draw your attention to, he says: "Please review. I think as a result of this article we should strengthen the board powers against Khadim. I will discuss with Nadeem and see what we can/should do by way of introducing new board resolution." And if we then scroll up, please, you respond saying: "Yes, makes sense." A. It's a point of view. Q. Yes, it was an anti—Khadim point of view? A. Well, regardless of whether it was an anti—Khadim point of view, it was a point of view, I'm in discussion. Like I said, it didn't culminate in anything. There wasn't -- this was for -- to strengthen the articles of memorandums of association which were really flaky to start with. So it's understanding how that works going forward. So it was the right thing to do. Q. Against Khadim? A. Say again? Q. Against Khadim? A. No, just to make it better and to secure it in terms of the company itself, because it was non—existent beforehand. There were no -- there were no board meetings. Everything was decided on a best will basis, almost like an old boys network, and it just seemed impossible to me how a business could be run for 40 years off the back of that. So I was open to accepting advice, talking to people, and understanding what challenges I had ahead of me within KTA itself. Q. Why was Pervaiz involved in any of these discussions? A. He's my older brother, I respect him, he knows a fair bit about business having managed and owned businesses himself and generally like any other person that has a close relationship with their siblings, you listen to them. So from my perspective, like I said, I speak to lots of friends and lots of family.”

“Q. Well, you probably discussed with Tanvier in advance what you were going to say at the meeting, but Khadim didn’t know? A. But there’s no agenda there. It’s a point of conversation. The whole point of having the board meetings was not to have this management and these flurry of emails to and fro, was to try and promote some form of open dialogue, which had been missing for so many years and had culminated to the point where both sides of the family are at loggerheads with each other. So it’s just a simple thing, you start the meeting, “How are the businesses performing?”

“On the screen, Mr Akhtar, again this is a document we have looked at repeatedly before, this is an email that your brother Pervaiz circulates on 14 August, so after that meeting that we were just discussing, a couple of days after, and subject is " Going Forward/Plan". And you'll see what it says there, I'm not going to read it out in full. But he talks about laying the groundwork for future action, and then he describes what he's been thinking about. And towards the end, there's talk about introducing two additional directors and then (iv): "After the appointment of 2 additional directors, propose that [Allah Hussain] resign as director." And then: "Point iv would strengthen the argument against [ Khadim] as we prove he is an absent director." And your response at the top of the page endorses that, and in the second line: "We require a unilateral push to build a case against [Khadim] as incompetent and unfit to continue in his current capacity." This is just more evidence, isn't it, of your taking an entirely partisan approach to your role on the board? A. No, I mean, it was a discussion, it was a consideration, I considered it and ultimately didn't follow through with it because I didn't think it was fair. So, no, I don't agree.”

“Q. FF4092. This is Pervaiz dictating a message that should be sent to Khadim. A. I wouldn't say dictating, I wouldn't say specifically for Khadim, it's for the benefit of all of the board. This is what I've said earlier, it's to try and discuss openly. There's nothing negative within that pointing or prejudicing any particular director. It's clearly aimed at the company. Q. Yes, well, it's designed to sound reasonable, isn't it? And so, for example: For governance purposes, the board meeting is the correct forum. All discussions are transparent for the attendees." But the reality is that that was not the practice that you and Tanvier and Pervaiz were adopting yourself, because you were having all these side conversations effectively plotting against Khadim behind his back. A. There was no plot. Q. And even Allah doesn't know about it. A. Like I said, there was no plot. These are conversations that have been had, yes, on our side, but more than likely on the other side as well. Q. Allah feels that he was also being excluded from management. A. Allah's 80 years old, who's half-deaf and suffering from cancer. So to protect him and to protect anybody that's older, they don't need to be privy to certain conversations if it doesn't effect them. Q. The one about getting him to retire and replacing him clearly affects him, doesn't it? A. It does, but ultimately it didn't happen. We considered it, we decided not to move forward with it, and ultimately it wasn't executed. Q. FF4410. This is Pervaiz dictating another email which you say that you will send. A. Okay. It was a discussion. Q. Not with Khadim though? A. But there's nothing in there that is detrimental to anybody. It's about just governance within a board. I'm failing to see where there's an example of, in your words, us colluding to actually do something negatively. Look at the performance over the last two years of what's been achieved over and above what hadn't been achieved for 30 years. Q. I've no doubt -- A. That in itself is evidence that we have done things the right way. Yes, unconventionally, and yes, lessons could have been learnt and there was some silly behaviour. I take that, we both take that, all three of us take that. But you've got to look at what was achieved in terms of where we are now to where we were two years ago from a company perspective.”

“Q. All right. And the last document, I think it's the last document I'm going to show you, is FF5805. I think you were referred to earlier, didn't you, the proposed termination of Tazamal's employment? A. Yes, it was considered -- Q. Why? A. -- like many proposals were considered, but ultimately I didn't think it was fair to proceed with it, so we didn't follow through. Q. Why was it -- A. It was never an agenda item. Q. Why was it being considered? A. In terms of streamlining the operation, and we also considered possible redundancies on the Pewsham side of things because of Covid. So, like I said, it's just -- you've cherry—picked certain examples. Q. Are there any other draft redundancy notices referring to -- A. No, there would have been discussions that we held with regards to streamlining some of the Pewsham side of things, the AM and Sawmills. I know we had certain conversations around letting some of the technicians go there because of the Covid challenges. But, like I said, you just highlighted one which is beneficial to you because it shows Taz, but ultimately we didn't follow through because I didn't think it was fair to. Q. And it's just an unfortunate coincidence that Taz happens to be the one who has led the investigation on Khadim's side, as it were, into Tanvier's misappropriations from the company? A. But that's your point of view. Q. Is it a coincidence? A. Is what a coincidence? Q. That you were considering terminating his employment? A. Like I said, we considered many -- we considered many options around termination of employment from KTA as a group, not just the Worleys side of operations.”

“You'll need to assist me with where we go. I mean, I think the big issue is going to be remedy. I can see that there's -- my indication to you is I can see that there's prejudice, but I'm not at all convinced it's unfair; and then even if it is, even if there is an element of unfair, or whether or not the conduct on the other side is such that either there's no order or the company gets wound up if the investigation is something which seems to be pressed so much in cross—examination, that is a way to do it. But I don't think it's going to be the best for anybody in the room, or those behind you, if the company is liquidated, but it's a solution -- MR MCDONAGH: Yes. CHIEF ICCJ BRIGGS: -- which could make a final division of the company between the parties and allow one party to buy out from the liquidator at a fair value, taking into account their interest already, enabling them to have a complete divorce from the other side. MR MCDONAGH: Yes. CHIEF ICCJ BRIGGS: I cannot see how the petitioner in any way is going to succeed on having a buyout of the whole company. Or I suppose the other option is, as I say, no order. It's very difficult. I have great sympathy for the last witness, who has tried his best, I think, to be as independent as he possibly can, given all the circumstances, despite the cross—examination which was ably done by yourself, but I agree with what he said: it's half a dozen of one and six of the other. And it may be just a matter of quantum, one side had been taking out more than the other side, which in terms of corporate governance isn't going to be particularly attractive if it comes to pushing the paper in terms of wanting a buyout order.”

“101. Shahzad, demonstrating independence of mind, gave evidence, which I accept, that if Pervaiz had e-mailed to suggest a particular course that was unfair to Khadim, he would not recommend actioning it. In a rather perverse switch, Shahzad was asked, as a son of Talib, whether he was fit to be appointed an independent member of the board. Shahzad responded that he knew his oldest brother had been approached by Tazamal to take the position. I accept his answer. It has never been explained how Pervaiz could be "independent" and Shahzad not when the allegation is that their common father held a grudge against Khadim. In any event the material suggestions made by Pervaiz in e-mails did not proceed. The allegation that Shahzad had been appointed for an improper purpose fails if the evidence relied upon is e- mails sent by Pervaiz. 102. The allegation does not solely rely on these emails. Shahzad was taken to several e-mail exchanges where Khadim and Allah were not copied into the e-mails. This meant there was no transparency about how board decisions were reached if they were reached. Shahzad accepted, as he had to, that he was taking the lead from Tanvier. That is understandable as Tanvier is the most active director and Khadim was choosing not to fully engage: "There was nothing forthcoming from Khadim with any interest in running the company." He explained that his influence was limited since, as a non-executive director, he was engaged to work only 1 day a week: "It's difficult. You can only put your best foot forward which is what I tried to do." From this evidence I reach the conclusion that there was no "side" taken by Shahzad but that he was obliged to take instructions and act at the Company's direction. Shahzad acted according to instructions given by the only human agent of the Company engaging with him, Tanvier. 103. My overall assessment of the evidence given by Shahzad is that it is reliable. Although reliable, due to the limited time he spends at the Company and the timing of the events in question his evidence is of limited assistance.”

“Khadim and Allah agree that it was always the intention that Allah would move to Pewsham to operate and manage the garage whilst Khadim would remain at Worleys. Allah and his family initially lived in a flat above the garage. The businesses have always had separate bank accounts giving complete freedom (there being no consultation between directors or shareholders) to pay staff, purchase stock and supplies, set wages for the directors and raise finance or repay finance. The businesses were not, however, totally independent. Khadim would supply cars at cost to Allah and each had visibility of the various bank accounts.”

“I do not accept Khadim had made any gifts. Most matters were left unsaid. The unsaid permits a reasonable observer to conclude that the enterprise was joint and their skills complimentary.”

“There is no doubt, in my judgment, that neither Allah nor Khadim had any regard to corporate responsibility differentiating between the interests of the Company and their own personal interests. Khadim raised, on his own evidence £ 950,000 in or around 2005 retaining half for himself and paying half into a Company bank account for Mazamal to use in other companies. He considers this gave rise to a repayable loan when none of the money was used, nor was it intended for Company purposes. This conduct helps inform the common understanding between the directors and shareholders. The articles of association and directors' duties, at least the enforcement of directors' duties was not relevant to the governance of the Company. Directors' duties, if known, were not enforced, or mentioned.”

“The background is peppered with instances of directors' breach of duties without penalty or enforcement inter se.”

“The investigation, responses and compromise reached demonstrates (i) that the Company was run without regard to the seven statutory duties imposed on directors by the Company Act 2006; (ii) Khadim and Allah's family sought to benefit from extractions from the Company, without declaring the extractions to HRMC; (iii) there was a failure to keep or retain adequate or any books and records and (iv) there was no record of any agreement to permit the extractions by the directors or shareholders. The investigation and outcome provides evidence that the directors and shareholders knew and accepted undeclared extractions from the Company.”

“143. The following factors lead me to conclude that Shahzad was appointed for reasoned and proper purposes. First, Tanvier was under considerable personal pressure from the breakdown of the family relationship. Secondly, he had recently suffered a serious medical issue that contributed to the pressure he was under. Thirdly, having realised that he should have declared the Excess Takings to HMRC he spent time instructing solicitors to act on his behalf and compiling evidence for the COP 9 disclosure. Shahzad was appointed as a director on 30 June 2020 and helped to oversee the investigation and liaise with HMRC; and lastly, due to the breakdown in the family relationship Shahzad promised to provide an objective position on the board. 144. I find as a matter of fact it is more likely than not that the motivation behind the appointment of Shahzad was not to secure a ' majority' against Khadim on the board as claimed. Allah and Tanvier already had a majority, if they chose to vote in the same way, prior to the appointment of Shahzad. This fact appears to have passed Khadim by. I find that the motivation was to add objectivity to the board, gained from Shahzad's experience outside of the Company (and family business) and introduce a business-like company structure to increase transparency and accountability to the decision-making process required in a new era of crisis due to the break- down of family relations. 145. Upon appointment Shahzad failed at times to live up to the high standards of corporate transparency required of a director when measured by modern standards. He rightly accepted this in evidence but convincingly added that although Khadim and Allah were not copied into all the e-mail traffic, any adverse recommendations made by Pervaiz were not acted on as he assessed them as unfair.”

“156. Prior to the purported suspension, Tanvier was the sole director with permissions for Bankline. Following Khadim's letter of suspension he asked Allah to grant him the permissions that Tanvier enjoyed "it was requested...for me to be granted the same Bankline permissions that Tanvier had before I suspended him." The request was denied. This denial of the request is said to give rise to exclusion. In step with his character Khadim did not recognise that he was at once seeking to suspend Tanvier in breach of understanding and seeking to obtain an advantage by doing so. Tanvier was not suspended, yet Khadim asked for the "same level of permission Tan had in Bankline before I suspended him". No justification for the "same level of permission" was given, other than Tanvier had those permissions. The reliance on this as a ground for exclusion is at odds with Khadim's evidence that he could not read accounts or understand figures. Nevertheless, it has not been explained how the failure to grant a new right to Khadim is exclusion as pleaded in paragraph 22 or 24 of the particulars of claim. 157. Khadim's difficulty lay in his inability, due to the need to demonstrate to third-parties that he acted with the authority of the Company, to act unilaterally (paragraph 24 of the particulars of claim). That complaint cannot succeed as there was no understanding that he could act unilaterally when it came to any matter that effected all businesses of the Company. This ground of exclusion is not too different to the change of bank mandate requiring more than one director to sanction payment instructions. It is not prejudicial to introduce oversight for bank payments. It is true that only one director was required for the mandate in the period prior to 2019 but this does not mean that implementing oversight (to prevent argument in an increasingly difficult relationship among the directors) was incapable of introduction. It is said the mandate "removed a substantial part of the Petitioner's involvement in the management of the Company" but that has simply not been made out on the facts. It has not removed any involvement but required him to consult as it has required of all directors. It is said that there is "a comparative disadvantage". No particulars are tendered. In my judgment the fact of the mandate is not prejudicial or unfair, but its implementation could give rise to conduct that is unfairly prejudicial. This could arise, for example, where the mandate was used to benefit Allah and Tanvier at the expense of the Company. No such allegations are made in this case.”

“159. It is worth stating that the use of the board as a platform to make decisions required for the Company as a whole, has in my view, become a necessity. The breakdown in family relations, failed mediation, communication breakdown and the unilateral actions of Khadim (suspending Tanvier, investigating reasons for his failure to obey an order, and instructions to the Company's accountants) required a response that provided the introduction of a transparent and accountable decision-making forum. The pleaded case that Khadim should be involved in significant management decisions if he wished to, runs contrary to his actions. He chose not to take part in board meetings. An example of self- exclusion is the meeting on 12 August 2020 where the issue of engaging UHY to undertake an analysis of funding and takings where he opted to make no contribution. A second example is when he chose not to attend a meeting where the agenda included the appointment of a non-executive director. He chose not to attend due to his belief that it was a "stitch-up". If it was a "stitch-up" he would have been able to make his observations and objections all of which would have been recorded in the minutes. Khadim chose to self-exclude and then complain. Nor was he excluded from liaising with advisors or prejudiced on the board since the first of the above examples concerned significant decisions and he chose self- exclusion. 160. Part of the case mounted by Khadim is that he self-excluded due to a feeling that the decisions made at the board were "fait accompli", the agenda had been either decided in advance or that it was received too late to prepare. The evidence is that a schedule of meetings is circulated to directors quarterly in advance and an independent minute taker now keeps a record of decisions at the meetings. It has not been said that an issue tendered for inclusion on any agenda had ever been refused or that Khadim asked for a meeting to be adjourned to permit him time to prepare: it is not said what preparation was required or how long it would take.”

"Tazamal Hussain is the driving force behind the present litigation being pursued in his father's name... Tazamal has already been seeking to interfere with the board's workings in order to promote his personal agenda."

“Question 7. Khadim has not been excluded from the management of the Company as pleaded. In particular the common understanding as a basis for the operation of the businesses explains why it is not unreasonable that Khadim should be included in discussions about Tanvier's remuneration; the issue of Excess Takings has been adequately dealt with by voluntary disclosure, but the common understanding permitted the activity complained of; there is no evidence advanced and it an issue at trial, that there had been exclusion in respect of discussions concerning releases of guarantees. Khadim continues to manage and control Worleys in accordance with the common understanding. He has access to the payroll, Company accounts and bank statements. Since the resignation of Mazamal only Khadim has been on the board of directors from the Hussain family. There was no agreement or understanding that the board would be equally weighted. Any exclusion from board meetings have been caused by Khadim. He has chosen not to attend or not to participate. 173. Question 8. I have found that Tazamal was not wrongly rejected as a potential appointee director of the Company. In any event there was no breach of duty in respect of not appointing Tazamal. 174. Lastly, I find that Shahzad was validly appointed and there was no wrong doing involved in his appointment.”

“630. Prejudice will certainly encompass damage to the financial position of a member. The prejudice may be damage to the value of his shares but may also extend to other financial damage which in the circumstances of the case is bound up with his position as a member. So, for example, removal from participation in the management of a company and the resulting loss of income or profits from the company in the form of remuneration will constitute prejudice in those cases where the members have rights recognised in equity if not at law, to participate in that way. Similarly, damage to the financial position of a member in relation to a debt due to him from the company can in the appropriate circumstances amount to prejudice. The prejudice must be to the petitioner in his capacity as a member but this is not to be strictly confined to damage to the value of his shareholding. Moreover, prejudice need not be financial in character. A disregard of the rights of a member as such, without any financial consequences, may amount to prejudice falling within the section. 631. Where the acts complained of have no adverse financial consequence, it may be more difficult to establish relevant prejudice. This may particularly be the case where the acts or omissions are breaches of duty owed to the company rather than to shareholders individually. If it is said that the directors or some of them had been in breach of duty to the company but no loss to the company has resulted, the company would not have a claim against those directors. It may therefore be difficult for a shareholder to show that nonetheless as a member he has suffered prejudice. In Rock (Nominees) Limited v RCO Holdings Plc [2004] BCC 466 the respondent directors of the company procured the sale of an asset to a company of which they were also directors. It was alleged to be a sale at an undervalue and procured in breach of the respondent directors' fiduciary duties to the company. The evidence established that the price paid was not an undervalue but was the best price reasonably obtainable, and the Court of Appeal upheld the decision at first instance that no prejudice had been caused to the petitioner. At paragraph 79 of this judgment, with which the other members of the Court agreed, Jonathan Parker LJ said: “As to the judge's finding of breach of fiduciary duty on the part of the respondent directors, it is plain that, as the judge found, the respondent directors were “in a position of hopeless conflict”

“338. JS contends that even if he acted in breach of fiduciary duty, as I have held that he did, those breaches of duty caused no loss to the Company, and accordingly that misconduct of the Company's affairs was not unfairly prejudicial to the interests of the shareholders generally or to HS and Estera in particular. 339. The breaches of duty as regards Winchfern and Expotel by their very nature caused all the shareholders prejudice, in that JS was wrongly putting himself in a position where his duty to the shareholders of the Company conflicted with his own interests and then preferring his own interests. That kind of conflict is corrosive of good administration and trust between shareholders and directors. Further, the prejudice was by its nature unfair. The members did not know of JS's personal interest: they were unaware of the undisclosed conflict that the CEO of the Company continued to have. They were deprived of the right to give or refuse consent to JS taking the opportunity for his personal benefit. 340. In Re Tobian Properties Ltd [2012] EWCA Civ 998; [2013] Bus LR 753, Arden LJ identified the six fiduciary duties of directors now on a statutory footing in sections 172-177 of the Companies Act 2006 and observed, with reference to them, that "non- compliance by the respondent shareholders with their duties will generally indicate that unfair prejudice has occurred". Aikens and Kitchen LJJ agreed with her judgment. That observation was in the context of a case where the active director of a company had voted himself excessive remuneration, which the company could not afford. On the other hand, if it is clearly established that no financial loss is suffered by a company as a result of a breach of duty, there may be no unfair prejudice capable of being identified by a shareholder in a section 994 petition: see per David Richards J in Re Coroin Ltd (No.2) at para [631]. That judge made it clear that unfair prejudice does not have to be financial prejudice, while observing that where a company suffers no financial loss it may be harder to identify unfair prejudice.”

“Accordingly, for all practical purposes, in order to appeal successfully against the findings of fact made by a judge at first instance, an appellant has to show that there was no evidence to support the findings made, or there was a demonstrable misunderstanding of, or failure to consider, relevant evidence. If all the relevant evidence was considered by the judge then, even if the appellate court might have come to a different conclusion, an appeal against the trial judge's findings of fact will fail. That is why an appeal against a trial judge's findings of fact is such a high hurdle for an appellant to overcome.”

“I don't agree with that.”

“A. It does, but ultimately it didn't happen. We considered it, we decided not to move forward with it, and ultimately it wasn't executed.”

“Nothing has changed.”

“Since Khadim was the sole director managing Worleys, the second director’s signature required by him under the terms of the amended mandate meant that the relevant Worleys payments needed the approval of the 2/3 directors involved in the management of Pewsham, contrary to the unilateral right to manage Worleys which the Judge found to exist. By contrast, the Pewsham directors (the Respondents) comprised enough directors to be able to muster the required signatures without recourse to Khadim.”