Apollo XI Limited v Nexedge Markets Limited [2025] EWHC 1488 (KB)

[2025] EWHC 1488 (KB)

Case No KB-2025-001312

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/06/2025

Before

THE HONOURABLE MR JUSTICE SAINI

Between

APOLLO XI LIMITEDClaimant

NEXEDGE MARKETS LIMITEDDefendant

Gideon Cammerman KC and Samuel Davis (instructed by Cruickshanks) for Claimant

William Day and Maud Mullan (instructed by Bryan Cave Leighton Paisner LLP) for Defendant

Hearing Hearing date: 9 June 2025

JUDGMENT

This judgment was handed down 2pm on Tuesday 17 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

THE HONOURABLE MR JUSTICE SAINI

[1]On 16 April 2025, Cheema-Grubb J (“the Judge”), sitting in the Interim Applications Court, made a freezing injunction (“the Order”) against the Defendant (“Nexedge”) following a without notice application by the Claimant (“Apollo”). This is my judgment on two applications arising out of the

[2]Apollo is a BVI company whose registered office is in Tortola. It operates as an investment holding company established to own special purpose vehicles. Apollo is wholly owned by a Cayman exempted limited partnership, DNA Capital LP (“DNA Capital”). Mr Chun Pui Ting (“Mr Ting”), who is also referred to in the documents and by the parties as “Duncan”, has a form of interest in DNA Capital. I use those words because there may be an issue, which I do not need to resolve, as to the nature of Mr Ting’s interest in DNA Capital. Nexedge says that he is the ultimate beneficial owner of DNA Capital.

[3]Nexedge is a limited company incorporated in England and Wales. Its registered office is at One Canada Square in London. Nexedge is regulated by the Financial Conduct Authority (“the FCA”) and currently operates as an introducing broker facilitating contract for difference (CFD) trading in equities, forex, commodity and other markets. It has been regulated by the FCA for some 21 years. Its share capital is held by Mr Tarik Sami (“Mr Sami”) who is also a director. Mr Sami is approved by the FCA as a person with a “significant management” role within Nexedge. Nexedge’s CEO-designate is Mr Marcelo Spina (“Mr Spina”). All of Nexedge’s 12 employees are based in London and its latest accounts (31 March 2024) show a healthy and growing balance sheet. As I describe in more detail below, Nexedge is in the process of a significant expansion of its financial services business, including seeking further FCA regulatory permissions.

[4]By way of high-level summary, and putting matters neutrally, there were a number of commercial dealings and arrangements which appear to have been made in the period 2023-2025 between the parties, and between individuals, including Mr Ting and Mr Sami, with interests in related companies. Some of these dealings were reflected in broad written heads of agreement and I will need to address these dealings below. But the matter which led to the Order concerns alleged breaches by Nexedge of a loan agreement dated 21 August 2024 (“the Loan Agreement”). Under the Loan Agreement, Apollo advanced an unsecured loan of US$10m (“the Loan”) to Nexedge for a 10 year term. The Loan Agreement is subject to English law and provides for exclusive jurisdiction of the courts of England and Wales. The purpose of the Loan was to provide working capital for Nexedge’s regulated financial services business, including an application to the FCA for a variation of its regulatory permissions.

[5]Apollo sought and obtained the Order from the Judge on the basis that Nexedge was in breach of the Loan Agreement, that it intended to dissipate its assets and defeat Apollo’s rights to repayment of the Loan. Nexedge says that it was not in breach, that the loaned monies were used lawfully (and indeed to make payments to companies associated with Apollo and Mr Ting and with their knowledge and consent), and that the purported termination of the Loan Agreement was unlawful.

[6]Although the application for the Order was made in the KBD Interim Applications Court, Apollo has, since the Order was made, separately issued proceedings for breach of the Loan Agreement in the Commercial Court (CL-2025-0118) and Gideon Cammerman KC (leading Samuel Davis), Counsel for Apollo, has relied before me on the Claim Form dated 28 April 2025 and Particulars of Claim (“the PoC”) dated 27 May 2025 to describe the nature of its case. In the Brief Details section of the Claim Form, Apollo states its claims in the following terms:

“This is a claim for repudiatory breach of contract or, in the alternative, breach of contract. The sums claimed include: (a) the loan principle [SIC] totalling 10million United States Dollars (“USD”) and (b) interest on the loan principle [SIC] which exceed 678,000 USD at the date of issue, and/or (c) damages, and in all the circumstances (d) costs. The claim for interest is brought under both (a) the loan agreement and (b) Section 35A of the Senior Courts Act 1981. The value of the claim, in sterling, exceeds £8million at the date of issue. On 21 August 2024 the parties entered into a loan agreement (the “Agreement”). Under the Agreement the Claimant loaned the Defendant the sum of 10million USD. In repudiatory breach of the express terms of the Agreement, and the implied terms (including but not limited to implied terms (a) of good faith, (b) not to harm the Defendant or dissipate its assets and (c) not to act dishonestly) the Defendant has conspired or otherwise planned to wrongfully retain the loan principle [SIC] and/or remove the funds offshore to new corporate entities and/or to wholly breach and abrogate the loan agreement. The Defendant has separately breached (a) its loan interest obligations (b) its agreement only to use the loan monies for specific purposes and (c) its covenant to cooperate and provide relevant documents within 5 days of any demand. The Defendant has also defaulted upon the loan agreement by (a) using the loan monies for purposes which were not agreed as per the terms of the loan, and/or (b) disposing or seeking to dispose of all of its assets or business and/or (c) transferring loan funds to third parties without the consent of the Claimant. In the alternative, in breach of the Agreement, the Defendant has failed to repay the loan principle (SIC) and interest following (a) the loan defaults set out above and (b) a demand for immediate payment from the Claimant.”

[7]The foundation for the without notice application to the Judge, and the main basis for Apollo’s case that Nexedge was in breach of contract and dissipating its assets, is an audio recording made on 11 April 2025 (“the Recording”). The Recording is the subject of a reporting restriction imposed under paragraph 24 of the Order and I will limit myself in this open judgment to general descriptions of the contents (see [57] below for the Judge’s reasons for imposing this restriction).

[8]I continued that restriction until judgment. I have prepared a separate Confidential Appendix II to this open judgment (which will not be made public pending further order) and which refers to some parts of the content of the Recording and submissions in relation to it. Parts of the hearing before me were also heard in private to protect the confidentiality of the material. Following helpful representations from a member of the press at the start of the hearing, I directed that references to the content of the Recording in the PoC in the Commercial Court would be subject to the restriction. I will direct that the press has permission to apply to me to remove the restriction given it was said that the PoC is publicly available on CE-File. The parties will need to address this issue in due course, having regard to the principles of open justice and the need to balance this against Nexedge’s privacy interests. In the interests of open justice I have sought to say as much as possible in this open judgment. I turn to the Recording.

[9]The Recording is of Mr Spina making a series of calls over about 4 hours while he was alone in Nexedge’s office. The Recording was made through a laptop which was left open in that office and was then remotely engaged to record. The circumstances in which the Recording was made have featured heavily in the submissions and evidence before me. Counsel for Nexedge, William Day and Maud Mullan, argue that this was a deliberate and improper covert recording (essentially “bugging”) and that at the hearing before the Judge she was misinformed as to the circumstances in which the Recording was obtained by Apollo. They also submit that excerpts from the Recording were presented in an acontextual and misleading way to support allegations as to risk of dissipation, when there is no such risk. Nexedge says, with support in evidence from Mr Mark Schreiber (“Mr Schreiber”), Nexedge’s General Counsel, that some of the contents of the Recording are the subject of legal professional privilege. I accept that evidence.

[10]Apollo’s case as to how the Recording came into being has not been consistent. Mr Cammerman KC does not accept this - his submission was that the case had been consistent, but had developed over time. He does however appear to accept that no consent was given by Mr Spina/Nexedge to the Recording being made, that they did not know it was being made, that somebody started a remote laptop Zoom recording and stopped it about 4 hours later. It also appeared to me that he accepted that the content was private and confidential (that was not the position in Apollo’s witness evidence before the Judge: see [45] below). Mr Cammerman KC however argued that once his clients started listening to it and what he called a “plan” to close down Nexedge, to move its business offshore and to dissipate its assets, was revealed, they were entitled to listen to it in full and to deploy it. Nexedge says that this is a misrepresentation of what was said by Mr Spina and that is part and parcel of its case that the Judge was seriously misled at the hearing as to the contents of the Recording.

[11]In paragraphs 14(a)-(g) of the PoC, Apollo alleges that the Recording shows the following categories of conduct by Nexedge (based on pleaded examples of words used by Mr Spina - which I have set out in the Confidential Appendix):(1) Nexedge showed animosity and malice towards Apollo and related persons;

(2) Nexedge was considering use of cryptocurrency to dissipate its assets which are mainly in cash;

(3) Nexedge was planning to relocate (or otherwise planning to dissipate) all of its business and assets to a new, separate offshore entity;

(4) Nexedge was planning to relocate its “chattels” (i.e. the items it uses to operate as a business), and potentially on an accelerated timetable;

(5) Nexedge planned to make inaccurate interest payments in bad faith to Apollo to try to slow down or otherwise frustrate Apollo’s ability to enforce the Loan Agreement, or litigate in relation to the same;

(6) Nexedge was planning to present false or misleading arguments or scenarios to Apollo in an attempt to set-off or otherwise limit its liabilities under the Loan Agreement; and

(7) Nexedge was planning to permanently and wrongfully keep the Loan.

[12]I should say at the outset that, for reasons that appear below and in the Confidential Appendix, and when the context and history are understood, I have concluded these allegations to be fanciful. The Recording does not support them save as regards showing a poor relationship evidenced by use of inappropriate language. In particular, nothing in the Recording when properly understood justified a without notice application. II. Factual background

[13]Both parties have served a number of witness statements and there are live factual issues in dispute, particularly as to the scope of the commercial relationships between a number of entities. When I give references below, I will refer to the witness’ name and statement number. In applications of the type before me, I cannot make any final findings of fact, in particular as to the circumstances in which the Recording was made. My narrative in this section is based on the witness statements before me and the contemporaneous documents, and seeks to be as neutral as possible. It is confined to the minimum necessary to explain the background for the purposes of resolving the issues in dispute. The related corporate entities and personnel

[14]Apollo is a 49% shareholder in Trex Global Ltd (“Trex”), a Mauritian financial services broker. Mr Yuan Chen Liao (“Mr Liao” - also referred to as “William”) is a director of Apollo, Trex, and a general partner of DNA Capital. He is employed in Mr Ting’s venture capital business and swore an affidavit dated 16 April 2025 (“the Affidavit”) which was the main evidence in support of the without notice application before the Judge. I will need to return to the contents of the Affidavit in more detail below. It is said by Nexedge that, like Apollo, Trex is under the effective control of DNA Capital (and ultimately Mr Ting). It is also said that Cloud Internet BV (“CIB”) is another of Mr Ting’s companies. I do not need to determine whether these allegations are true for present purposes save for noting that Mr Ting has some form of association with these entities. He also clearly purported to speak for Apollo when saying in his messages to Nexedge that he wanted immediate repayment of the Loan (see further [33] below). For completeness, I should also record that until 4 February 2025, Mr Sami was a director of Trex.

[15]Other companies which are relevant to the matters before me include the following:(1) Data Socket Ltd (“Data Socket”), a company owned and controlled by Mr Ting (who was also a director) and which provided IT services to Nexedge and shared its offices; and

(2) Web Pi Pty Ltd (“Web Pi”), an Australian company that provided IT services to Nexedge. Yuezhong Liu (“Mr Liu”) is employed by Web Pi as its Chief Technology Officer (“CTO”). Mr Liu is said to have discovered the Recording in circumstances I describe below.

[16]In 2023, Mr Sami and Mr Ting were introduced to each other by a mutual friend and they developed a positive relationship. They resolved to work together in business. In 2023, Nexedge started using Web Pi’s IT services (following Mr Ting’s introduction) and in or around August 2024 Nexedge and Data Socket started sharing office space. As a director of Data Socket, Mr Ting had access to the office (and a desk within it). Polaris

[17]On 28 June 2024, Mr Sami entered into a convertible loan agreement with an unrelated Mauritian financial services broker, Polaris Capital Markets Ltd (“Polaris”) (“the Polaris Loan Agreement”). Subject to regulatory approval in Mauritius, the advance under the Polaris Loan Agreement could be converted into 50% of the share capital of Polaris, with the other 50% held by its existing shareholder Mr Marko Jagustin (clause 13). Mr Sami would hold his 50% shareholding via a BVI company. It is not in issue that these arrangements had nothing to do with Apollo, Mr Ting and his affiliated entities. Polaris is relevant because, on Nexedge’s case, much of the discussion in the Recording (which Apollo seeks to portray as a sinister attempt to strip Nexedge of assets and to move offshore) is in fact an innocent discussion of Mr Sami’s offshore plans in relation to Polaris. The Heads of Terms and the Loan Agreement

[18]On 15 August 2024, Mr Sami entered into a heads of terms agreement with Apollo and DNA Capital (“the Heads of Terms”). In summary, it was agreed that: DNA Capital would provide $30m in seed capital via Apollo for a number of companies including Nexedge and possibly Trex (clause 1.1); in the case of Nexedge, it was anticipated that a $10m loan would be provided (clause 3.1); and services provided between companies would be subject to fees payable under services agreements (clause 4.1). The Heads of Terms thus outlined a proposed business relationship and the first part of it was a loan.

[19]Accordingly, on 21 August 2024, Apollo (as defined “Lender”) and Nexedge (as defined “Borrower”) entered into the Loan Agreement. In broad terms, the material provisions of the Loan Agreement were as follows:(1) The Loan Agreement provided for a $10m (“the Loan”) facility with a term of 10 years (clause 2); that the Loan could be used to “upgrade the Borrower’s licence and to fund the operating expenses of the regulated business” (clause 3); and that interest was to be paid at the rate of 10% per annum on the amount by which the balance of the loan account was below $10m monthly “or at such times as may be agreed between the Parties from time to time” (clause 4). (I pause here to note that the upgrading of Nexedge’s “licence” is a reference to the intended expansion of its range of FCA regulatory permissions: see [24] below).

(2) Upon an ‘Event of Default’ (defined to include breach of any term of the Loan Agreement) Apollo could accelerate the Loan subject to giving Nexedge an opportunity to cure the breach (clause 6):

“6.1. … the Lender may, by notice in writing to the Borrower (“Default Notice"’), declare that all or part of the Loan and any Interests, accrued or outstanding, be due and payable on demand, whereupon the same shall become immediately due and payable (“Default Payment”) … 6.3. Within seven (7) Business Days (“Rectification Period”) upon the Borrower’s receipt of the Default Notice, the Borrower may cure such Event of Default and provide proofs that such Event of Default has been rectified or furnish additional security measures satisfactory to the Borrower (“Rectification”); In the event that the Borrower does not complete Rectification within the Rectification Period, then the Borrower is obliged to complete the Default Payment…”. (3) The Loan Agreement also provided (clause 9): “…the Lender shall be entitled to inspect the use of the Loan at any time after the Advance Date, for which the Borrower is required to cooperate and provide relevant documents, including but not limited to the banking vouchers and financial reports within five (5) Business Days upon request of the Lender.”

[20]In the PoC Apollo pleads that there were additionally a number of terms to be implied into the Loan Agreement. These include: conditions that Nexedge would act honestly and cooperatively in its dealings with Apollo, that it would act in good faith in its relationship with Apollo, that it would not harm itself or sell, lease, transfer or otherwise dissipate all or substantially all of its assets or business in any way, and that it would not breach its regulatory duties and/or obligations or otherwise place its FCA licence at risk. Interest payments, Trex and xSyphon

[21]After entry into the Loan Agreement, it appears that no interest was paid under it from August 2024 until April 2025. There is no evidence of interest being demanded and that is consistent with Nexedge’s case that this was by agreement between the parties given the wider anticipated relationship contemplated under the Heads of Terms. It is not in issue that Nexedge provided Apollo with “read-only”, real-time access to Nexedge’s management accounts which use the Xero platform. The Loan was held with Coutts and account movements with that bank would be automatically visible to Apollo via its Xero system access. Weekly finance meetings were scheduled at which Mr Liao could (and Nexedge says he did) raise queries with Mr Spina and Mr Phil Hirst (Nexedge’s financial controller) as to those accounts.

[22]On 11 December 2024, Nexedge and Trex entered into a short term loan agreement by which Nexedge “on-lent” Trex US$1m of the Loan proceeds with Apollo’s knowledge and consent. On 16 December 2024, a further loan of US$500,000 was advanced (on Nexedge’s case, on the same terms).

[23]On 13 December 2024, Mr Liao emailed Mr Sami on behalf of Web Pi enclosing four invoices totalling $2m representing licence fees for an electronic trading platform called ‘xSyphon’. Mr Liao explained that “the invoices have been issued through our parent company, DNA Castle”. Nexedge paid these invoices. The Business Plan, expansion of the business and movement to new offices

[24]On 24 December 2024, Nexedge submitted a variation of permissions application (“the VoP Application”) to the FCA, accompanied by a supporting business plan (“the Business Plan”). The VoP Application, if granted by the FCA, would permit Nexedge to hold client money and enable Nexedge to offer professional clients direct trading and CFD liquidity rather than simply acting as an introducing broker. The Business Plan envisaged a significant increase in Nexedge’s revenue and balance sheet. I was informed that the FCA is expected to determine the VoP Application in the very near future. I need to say a little more on the plan for the future given the allegations that Nexedge was engaged in some form of removal of its assets (including the Loan) from the UK and a scheme to relocate wholesale to an offshore location to defeat its obligations to Apollo.

[25]In line with its current introducing broker business, Nexedge is not entitled to hold or control client money and is subject to restrictions in respect of activities within the scope of the Markets in Financial Instruments Directive 2014 (commonly known as ‘MiFID’). In regulatory terms, Nexedge is designated as a ‘SNI MIFIDPRU’ investment firm. Nexedge has been authorised by the FCA since 28 January 2004. The evidence before me is that it is Mr Sami’s intention significantly to expand Nexedge’s business and, relatedly, the scope of Nexedge’s FCA authorisation, so that it can become a ‘Non-SNI MIFIDPRU’ investment firm. As to the Business Plan:(a) Nexedge intends to offer its professional clients direct trading as principal rather than simply acting as an introducing broker and therefore requires permission to act as a riskless principal and hold client money;

(b) the focus of Nexedge’s business will be on offering CFD liquidity in a wide variety of markets and asset classes to professional clients (primarily other regulated brokers) and eligible counterparties in Europe, the Middle East, Asia and elsewhere;

(c) Nexedge’s revenue is projected to increase significantly under this new business plan, from approximately £1.1 million in 2024/25 to £7.2 million in 2027/28 with annual profit after taxation expected to increase in that period to £2.6 million;

(d) Nexedge’s net assets in that period are also expected to increase significantly, from £912,800 in 2024/25 to almost £7m in 2027/28;

(e) Nexedge’s internal capital adequacy and risk assessment document shared with the FCA notes that Nexedge would be improving its regulatory capital structure (including by allotting a further £500,000 in additional share capital); and

(f) Nexedge’s legacy retail investor activities are not active and permission relating to retail clients will no longer be required.

[26]It is not in issue that Apollo was aware of the Business Plan. Indeed, it was part and parcel of the overall arrangements identified in the Heads of Terms.

[27]On 18 March 2025, Nexedge and CIB agreed commercial terms for xSyphon. As explained in the Business Plan, xSyphon was intended to be “Nexedge’s trading platform and order management system” which was to be developed by CIB “in partnership with Nexedge” (with a role also for Web Pi).

[28]In anticipation of securing FCA approval, Nexedge recruited twelve employees, including Mr Spina, as CEO-designate. Nexedge employees provided management and trading services to Trex. A services agreement has never been agreed and the evidence is that there have been negotiations about offsetting such fees against any amounts owed by Nexedge to Apollo or connected companies.

[29]In addition to Nexedge’s increased workforce, Mr Ting and two of his associates (Mr Ryan Park Yeung Cheung (“Ryan”) and Ms Tina Zhang) also were permitted to work from Nexedge’s office. Nexedge’s office was at ‘FORA’, a flexible workspace provider at One Canada Square in Canary Wharf. On 14 March 2025, Mr Ting accompanied Mr Spina to see alternative and larger office accommodation at ‘WeWork’, another workspace provider at 30 Churchill Place in Canary Wharf.

[30]On 26 March 2025, Nexedge entered into a contract to secure the office space at WeWork from 1 July 2025. The contract was for a minimum term of 13 months with a retainer of £23,500 and monthly fee of £9,987 plus VAT. On 27 March 2025, Nexedge gave notice on its contract with FORA. Nexedge says that Mr Ting was aware of - and gave his support to - this proposed office move within Canary Wharf. I have been taken to WhatsApp messages between Mr Ting, Mr Sami and Mr Spina in this regard. I am satisfied that these show Mr Ting was fully aware of the intended move. Indeed, he does not dispute this in his evidence. The breakdown in the relationship and Mr Ting’s desire to “close” Nexedge

[31]Putting matters in neutral terms, the business relationship between the parties appears to have begun deteriorating from late 2024, and seems to have broken down completely by 10 April 2025. There are two sides to this and I cannot determine who is right as to why there was a breakdown. In broad terms, it is Nexedge’s case that the relationship broke down was because Mr Ting sought to interfere in the management of Nexedge and adopted an antagonistic position towards certain Nexedge employees.

[32]For its part, Apollo does not accept any inappropriate behaviour by Mr Ting. Mr Ting says in his evidence that the relationship worsened because he raised legitimate concerns about the actions of Mr Sami, Mr Spina and Mr Schreiber in the context of claimed breaches of FCA Regulations. It is fair to say that none of this appears reflected in the Note of the 10 April 2025 meeting (see [35] below) or in the messages, to which I now turn.

[33]On 8 April 2025, Mr Ting and Mr Sami exchanged WhatsApp messages in which Mr Ting threatened first to ask a Nexedge employee to work in the office 5 days a week and latterly to “fire her directly”. When Mr Sami resisted this, Mr Ting said “[s]end the money back to Apollo, let’s finish tomorrow” and “I can ask you to pay back the loan”. It is not in dispute that this was a reference to the monies in the Loan Agreement. Mr Ting then (repeatedly) told Mr Sami “[l]et’s finished” (sic) or similar. On 9 April 2025, Mr Sami sent Mr Ting a message asking how Mr Ting “would … like to proceed”, to which Mr Ting replied that his intention was to “[c]lose nexedge”. These messages speak for themselves as to what Mr Ting, on behalf of Apollo, wanted to do given the disputes he had with Nexedge’s management. As far as he was concerned, he wanted the loaned money back and to effectively terminate Nexedge. Of course, he had no right to do at least the latter: Nexedge was bound by the Loan Agreement, but it is an independent company in which Mr Ting (or his associated corporate entities) had no form of equity interest. The 10 April 2025 meeting

[34]Matters did not however end there. So, on the morning of 10 April 2025, Mr Ting spoke to Nexedge employees telling them that there had been a “big fallout” and “split” with Nexedge and he was “pulling his loan”, and he invited those employees to leave Nexedge’s employment and instead work for him. I have been shown email exchanges which appear to support this and it was not challenged by Mr Cammerman KC.

[35]In these circumstances, a decision was taken by Mr Sami to suspend access for Mr Ting and his associates to Nexedge’s office. At noon on 10 April 2025, Mr Ting was informed of this decision during what is said to have been a heated meeting between him and Mr Spina and Mr Schreiber. I was taken to Mr Spina’s contemporaneous note of the meeting of 10 April 2025, the accuracy of which was not disputed in any evidence from Mr Ting or Apollo. The reference to “Duncan” in the Note is to Mr Ting and the reference to “Tarik” is to Mr Sami.

[36]Insofar as material the Note recorded:

“The meeting was contentious and marked by a lack of cooperation from Mr Duncan Ting. He was combative, interrupted frequently, and repeated inaccurate assertions throughout the meeting. The conversation failed to resolve the concerns raised and concluded without progress. Key Points Discussed: 1. Ownership Misconception: Duncan repeatedly stated that he owns Nexedge Markets (effectively by virtue of the Apollo XI Limited Loan), despite the fact that he is not a shareholder. All documentation and corporate filings confirm this. 2. Misunderstanding of Debt vs. Equity: Duncan failed to grasp the fundamental difference between being a lender (Apollo Capital has loaned money to Nexedge) and being an equity holder. 3. Direct Communication and interface with Staff: Duncan admitted to reaching out to Rob Collins (Head of Risk), Raffaele Cioffi (Head of Dealing), and Claudia Greenhalgh (Risk Analytics), offering bonuses and proposing continued involvement in the xSyphon project through employment with one of his companies (Data Sockets Limited was implied). He also told them that we was going to ‘pull’ the Loan (he has no right to do so) and that Nexedge was ‘finished’. These communications are corroborated by email evidence. He said that he wanted to ‘look after the team’. 4. Unauthorised Involvement: Duncan insisted he had the right to engage staff and stated he could shut down the company. He was reminded several times that he has no authority in Nexedge. 5. Obstinate Behaviour: Duncan repeatedly interrupted attempts to clarify matters, responding only with “No, no, no,” and repeatedly refusing to engage meaningfully in dialogue. 6. Threats of Legal Action: When asked to leave the office to de-escalate tensions, Duncan threatened legal consequences, saying to call the police and prepare for a lawsuit. He stated that if forced to leave, he would cease all communication and proceed via legal avenues only. 7. Bonus: Duncan claimed that Marcelo would be responsible for staff not receiving bonuses if he were asked to leave. Marcelo responded that if Duncan wanted to fund bonuses, he should send the funds to Nexedge directly. Duncan explained that his prior request for a Nexedge salary list (which was declined) was for that purpose. 8. Involving Tarik: After about 40 minutes of circular discussion, Tarik was contacted and brought into the conversation via telephone (on speaker). Tarik sought to progress the discussion to enable future more constructive conversations and asked Duncan to voluntarily leave the office. Duncan repeated ‘don’t push me on that’ threatening the shutdown of normal communication channels save for legal. 9. Baseless Allegations: Duncan said that Tarik had previously agreed to replace Marcelo as CEO after the VOP process and claimed to have planned a hiking trip for the HK team weeks ago (in fact, the idea was introduced that very morning). 10. Client Contact Without Consent: Duncan admitted to contacting Nexedge clients without informing Tarik, despite these being Nexedge’s (Tarik’s) relationships. 11. Lack of Resolution: The conversation looped with no new progress. Mark Schreiber left the meeting about 30 minutes after Tarik joined to join the team who left the office and were waiting in a restaurant. Eventually, it was agreed to pause and wait for Johnson’s input.”

Key Points Discussed:

[37]From 10 April 2025, Nexedge’s access to the xSyphon platform was suspended. The inference is that this must have been through the intervention of Mr Ting given the souring of relations between the parties evidenced by the Note.

[38]I pause here to note that it is common ground that none of these points outlining the dispute between the parties as I have summarised above was brought to the attention of the Judge either in the Affidavit, the Skeleton or in the oral submissions. In particular, the threat to close down Nexedge was omitted. I will identify below the factual matters which were identified before the Judge. I return to the narrative. The Recording is made

[39]On 11 April 2025, Nexedge’s employees were asked to work from home but Mr Spina stayed on, working alone in Nexedge’s office. I will return below to Apollo's developing evidence in relation to the making of the Recording, but I should note at this stage that Apollo says in its skeleton argument for the hearing before me that the Recording was “accidentally made” by Web Pi through Zoom. It is a lengthy recording made through a laptop which was left in the Nexedge office and is of Mr Spina’s “side” of a number of calls. Someone started and ended the recording (the first call being one he happens to have had with Mr Liao).

[40]As the transcript of the Recording shows, much of Mr Spina’s working day was spent on addressing the disputes which had taken place with Mr Ting the previous day. It is now common ground that the Recording was made without Mr Spina’s knowledge or consent. For Apollo, Mr Cammerman KC submitted that the Recording shows that there was an imminent plan to relocate Nexedge’s assets and businesses out of the jurisdiction and to prevent Apollo being able to recover the monies owed under the Loan Agreement - he called this “the Plan”. He said that as part of the Plan, Mr Sami and Mr Spina had resolved to become independent from Apollo and to manoeuvre themselves into a strong position to frustrate any attempt by Apollo to enforce the Loan Agreement. The Default Notice

[41]On 14 April 2025, Mr Liao emailed Mr Sami a default notice under clause 6 of the Loan Agreement (“the Default Notice”). It provided as follows:

“Please take this email as the formal Default Notice defined under Clause 6 of the Loan Agreement dated 22/08/2024 between NEXEDGE MARKETS LIMITED and APOLLO XI LIMITED below. [quotes clause 6.1 of the Loan Agreement]. I declare that all of the Loan and the Interests accrued or outstanding are due and payable now due to the Default under Clause 6.2.7. Please payback all of the loan and both accrued and outstanding Interest in a sum of $10,201,879 to our bank account within 24 hours as the Default Event is unable to be rectified under Clause 6.3. [Bank account information set out].”

[42]By letter also dated 14 April 2025, Nexedge wrote to Apollo noting that it had paid interest of US$58,565.19 representing interest to 31 March 2025 on the “Used Principal” that day, but noting that two items connected with DNA Capital and Mr Ting “should be excluded from the Interest calculation”. These were:(a) US$2m ringfenced for or used by Trex and

(b) US$2.53m used to pay DNA Castle for fees under a software agreement. Nexedge’s case is that, notwithstanding the original agreement that no interest would accrue or fall due under the Loan Agreement, the letter of 14 April 2025 was sent in an attempt to reach a compromise with Apollo following Mr Ting’s threats to “close” or “finish” Nexedge. Nexedge also says that at the time this compromise was sought it was not aware of the Default Notice. That was not challenged.

[43]It is not in dispute that, following the heated 10 April 2025 meeting and up until the Judge made the Order, there was no improper use of the Loan or acts of dissipation. As I have recorded above, Apollo, through the Xero system, had complete visibility over the use of the Loan (which was held at Coutts). Had there been any suspect movements, they would have been immediately apparent to Apollo. The application to the Judge

[44]There was no further communication and on 16 April 2025, Apollo applied for a freezing injunction without notice, basing the application on the Recording. In the Affidavit in support, Mr Liao said at [1.4]: “APOLLO has been forced to bring this application on an urgent ex parte basis before any pre-action steps have been taken in relation to the dispute between the parties. There is evidence that NML is in the process of dissipating its assets and business. If relief is not granted urgently any claim brought against NML may be unenforceable. This application has been made as soon as possible after APOLLO discovered the risk of asset dissipation on Friday 3rd April 2025.” (“NML” is a reference to Nexedge).

[45]As to the Recording, Mr Liao said at [3.2] (with my underlining):

“The recording is of a meeting held on 11 April 2025 in the office of NML, which was generated via a zoom conference call conducted in the ordinary course of business. The verbal communication is solely and primarily from Marcelo Spina, a Chief Executive Officer of NML with Tarik Sami, who has signed the Loan Agreement, and other relevant NML key executives. There is no privacy breach. APOLLO confirms that the recording is authentic, complete, and has not been edited or altered in any way. A true copy of the Recording contained in a USB drive is now produced and shown to me, marked exhibit “YCLA-4”. 3.3 I have exhibited the audio recording (YCLA-4) and will ensure that a means to play and/or listen to this recording is made available in court. I have provided a transcript of the recording as well on the relevant information as the whole recording is about four hours. A true copy of the extracts of the audio transcripts of YCLA-4 is now produced and shown to me, marked “YCLA-5”. 3.4 In the recording, Marcelo Spina who is the Chief Executive Officer of NML expressly admitted that NML intends to transfer funds offshore and sell key assets, with the objective of liquidating the company at any time between now and no later than 1 May 2025. 3.5 APOLLO has no control over, and lacks any visibility into NML bank accounts and the present location and status of the loan funds. It is therefore entirely unclear whether the funds remain within the NML’s accounts or have been moved or dissipated. This opacity is expected to continue until judicial intervention occurs. It is also unclear whether NML’s other assets are being sold or transferred (or have already been sold or transferred). 3.6 I have noted the confidentiality clause in the Loan Agreement above. APOLLO, however, is required to disclose such information as required by our legal advisor contemplated herein regarding the Default of NML in relation to the Loan Agreement. 3.7 These facts justify urgent interim relief. There is an acute risk of dissipation that will frustrate APOLLO’s ability to seek recovery of the loan, interests or damages arising from NML’s breach(es) of contract. APOLLO cannot give NML notice of its intention to seek a freezing order without risking an acceleration or activation, by NML, of any asset/cash dissipations plan(s) or process.”

[46]A transcript of the Recording was not produced in its entirety before the Judge but parts were reproduced with commentary in exhibit YCLA5 to the Affidavit with the heading (with my underlining):

“Apollo XI Limited (“Apollo”) refers to the office recording dated 11 April 2025, which was generated as part of our routine internal office monitoring protocol conducted in the ordinary course of business. We confirm that the recording is authentic, complete, and has not been altered in any way. The recording captures conversations involving Marcelo Spina, CEO of Nexedge Markets Limited (“Nexedge”), in discussion with Tarik Sami, a Director and Ultimate Beneficial Owner (UBO) of Nexedge, as well as other key employees. The content of the recording is materially relevant to the disputes at hand. A full transcript and an unaltered copy of the 4-hour recording can be referenced below [hyperlink and password provided]. This recording is being submitted as evidence in support of the freezing injunction application to be filed against Nexedge with material finding below...”

[47]The parts of the transcript of the Recording selected by Apollo had sidelined text with a commentary (called Remarks) describing various sinister actions on the part of Nexedge said to be evidenced by each extract. Although this is a matter for the Confidential Appendix, I will give an example of the type of sinister conduct said to be evidenced: “creation of an offshore entity” with an “intention to ringfence assets and evade repayment”.

[48]Counsel, Samuel Davis (“Mr Davis”), Mr Cammerman KC’s junior, appeared before the Judge for Apollo, and I have been provided with his skeleton argument (“the Skeleton”), his helpful Note of the Hearing (“the Note”), a transcript of the hearing and the judgment.

[49]In the “Introduction”, the Skeleton said (my underlining):

“1. This is an application for a worldwide freezing order on an ex parte basis. It is likely to require a 45 minute hearing. The court has the following documents a. The application notice (and the draft order), b. The affidavit of Yuan Chen Liao sworn on 16 April 2025 (the “Affidavit”) and the exhibits to the same, c. This skeleton argument. The author will circulate a hearing bundle to assist the court. Reading time is estimated at 20 minutes. 2. Apologies are offered for the late filing of the Affidavit and this skeleton argument. APOLLO has worked at pace to collect the necessary documents in the urgent circumstances of this application. As noted below the Affidavit exhibits includes a lengthy recording. Counsel for APOLLO has not been able to listen to that recording but the Affidavit speaks to its contents.”

The author will circulate a hearing bundle to assist the court. Reading time is estimated at 20 minutes.

[50]The Skeleton then described the parties, the Loan Agreement, and the breaches relied upon. As to risk of dissipation it was said (with my underlining):

“Whilst the claim against NML is currently at a pre-action stage, APOLLO has become aware of a real risk that NML is dissipating the assets (or intending to do so imminently) in a manner that may judgment proof the company. The central item of evidence arises from a meeting held on 11 April 2025 between NML’s CEO, Tarik Sami (NML’s Director) and other NML executives. APOLLO has a recording made via ‘Zoom’, an online video conferencing provider (the “recording”) obtained via routine office monitoring. The full recording (which is circa. 4 hours long) and a transcript of the relevant part of the meeting (created by APOLLO) are both exhibited to the Affidavit. APOLLO asserts that (a) there is no privacy breach in relation to this recording and (b) that it is entitled to rely upon the recording, which is evidence of a further breach or breach(es) of the loan agreements, despite a confidentiality clause in the loan agreement (which is set out in full in the Affidavit). Noting its duty of candour, APOLLO does not ignore the fact that NML may assert that the recording is covered by privacy, confidentiality or that its use is a breach of confidence. APOLLO does not consider that the court needs to sit in private given the recording but NML’s position on that issue is not known.”

[51]The Skeleton said that the Recording “...contains discussions between key [Nexedge] officers that, in summary, make clear that Nexedge is intending to dissipate funds offshore, sell key assets and to otherwise liquidate the company by (or around) 1 May 2025 (Yuan Chen Liao’s summary). Exhibit YCLA-5 is helpful, it is a limited transcript of relevant parts of the discussions, with a narrative setting out Apollo’s concerns.”

[52]As regards the duty of candour, Mr Davis referred in the Skeleton to the Affidavit of Mr Liao from paragraph 4 onwards as canvassing points that might be taken by Nexedge in response to the application. I turn to that evidence.

[53]Under the heading “FULL DISCLOSURE” Mr Liao said in the Affidavit: “4.1 Following the issuance of a Notice of Default by APOLLO 14 April 2025, NML repaid the amount of USD 58,565.19 on 15 April 2025 to APOLLO. However, this payment is wholly insufficient, as the total accrued monthly loan interest exceeds USD 678,000. A true copy of the Notice of Default is now produced and shown to me, marked exhibit “YCLA-6”. 4.2 APOLLO discloses that following APOLLO’s discovery of the unauthorised transfer of USD 2,530,000 by a key personnel of NML, Tarik Sami subsequently paid back USD 637,450 on 16 December 2024. APOLLO further request the repayment of USD 1,892,550 on 11 March 2025 via WhatsApp. Tarik Sami finally repaid the remaining sum of USD 1,895,000 in three separate batches on 12 March 2025 and 18 March 2025. All payments are listed below and there is no outstanding balance. Batch Number Repayment date Amount 1 16 December 2024 USD 637,450 2 12 March 2025 USD 800,000 3 12 March 2025 USD 450,000 4 18 March 2025 USD 645,000 4.3 APOLLO acknowledges that in a separate Loan Agreement dated 11 December 2024 expressly permitted NML to transfer up to USD 1,000,000 to Trex Global Ltd for specific purposes related to the licensed business. However, on 16 December 2024, NML transferred a further USD 500,000 to Trex Global Ltd without seeking or obtaining the APOLLO’s prior written approval, in breach of Clause 6.2.7 of the Loan Agreement. APOLLO relies on this unauthorised transfer as further evidence of misuse of loan funds and breach of contract. 4.4 Further for completeness, APOLLO discloses that it retains a level of operational oversight and access of the receiving account held by Trex Global Ltd, a company to which NML has transferred USD 500,000 of the loan proceeds. While APOLLO did not authorise the USD 500,000 transfer, APOLLO acknowledges that the Trex Global Ltd is a 49%-owned subsidiary owned by APOLLO and currently controllable by personnel associated with APOLLO. However, the funds held in that receiving account are subject to shared oversight with a majority individual shareholder, who retains effective control over the company’s strategic decisions and disbursement of funds. 4.5 For the avoidance of doubt, I confirm that, save for the USD 10,000,000 Loan Agreement dated 21 August 2024 between APOLLO and NML, no other agreements exist between the parties. 4.6 I confirm that I have made all reasonable and diligent enquiries to ensure that all material facts, including those which may be adverse to APOLLO’s position, have been disclosed in this affidavit to the best of my knowledge and belief. 4.7 Should any further material information come to light prior to the hearing of this application, APOLLO undertakes to promptly inform the Court and NML of such matters.” (Some further matters were referred to but not under this heading: at paragraph 5.1.1 (current assets of the Respondent by reference to Xero) and paragraph 6.3 (that Apollo “should have been aware” of the use of funds by virtue of commercial involvement with Trex and shared management oversight)).

[54]The transcript of the hearing before the Judge shows that Mr Davis based his oral submissions wholly on Mr Liao’s evidence (the Affidavit) and he took the Judge through various excerpts from the Recording (which, as I have noted above, had been extracted and put into a separate document exhibited to the Affidavit).

[55]Mr Davis’ submissions persuaded the Judge that, in her words, something improper was “afoot” within Nexedge.It is not in dispute that the claimed contents of the Recording were the principal basis for the Judge agreeing that the application could be made without notice, and also the basis for granting the relief (essentially, it was said to support the case as to risk of dissipation).

[56]The Judge was naturally concerned as to how Apollo came to have the Recording. The material part of the transcript records the following brief exchange:

“MRS JUSTICE CHEEMA-GRUBB: Can you just tell me how it comes about that you have this? MR DAVIS: So my understanding is - and perhaps I should put this in front of me so I can be incredibly clear - there was a Zoom meeting between, at the very least, the applicant’s directors and an employee. They left the office without turning off the Zoom link. Officers and directors of the respondent happened by chance to enter the office later or it may be that one of them is there alone and dials in other people. They, so far as we know, were not aware the Zoom link was still open, and then they had this meeting and that leads to a four-hour-long recording in which they discuss things of grave concern to the applicant”

. MRS JUSTICE CHEEMA-GRUBB: OK, all right, thank you. MR DAVIS: I am not sure I can say much more than that, my Lady, on the evidence. In the affidavit, you will have seen that it is the standard business practice of the applicant to record Zoom calls, but I am not sure that takes you much further in the circumstances. MRS JUSTICE CHEEMA-GRUBB: All right. MR DAVIS: So it has come about in perhaps less than ideal circumstances but it exists. We would say that there should not be concerns about its usability, and even if it had been obtained secretly, a court can approach evidence obtained in that way; this has to be treated very, very carefully, and there is a lot of case law I am not going to take you to on that, my Lady. There is no suggestion on my instructions it contains privileged material, and what it does contain, on my instructions and the affidavit evidence, is evidence that they are planning to breach the loan agreement in further substantive ways which would cut against, potentially, any assertion of confidence in any event. In that discussion, I am going to take to some specific quotes, but the headline summary is that they make clear that they are planning to dislocate all of the respondent’s assets, effectively liquidate the company, and they make it clear, on our case, that they are adversely minded against the applicant. I will show you those specific quotes in a moment. And they discuss a date, and the date is 1 May. It effectively is a “when we should get this done by” date, in my summary. And the implication, we say, is that this is already under way”.

The Judge gave a short judgment with her reasons for granting the application:

“1. The short answer is: I will grant the application. It is always a serious step to grant an order of the kind that is sought before me, and ex parte, but I am persuaded, having read the bundle and heard from Mr Davis, that there is a clear likelihood that the applicant here is in a mind to issue proceedings against the respondent in respect of the loan agreement. In particular, the affidavit accompanying this application and the exhibits make that clear; and that something is afoot with Nexedge. 2. There is a risk of dissipation of assets held by the respondent. The recording of the meeting, in schedule form, of what was taking place in conversation between the respondent’s CEO, its director and other senior employees, Mr Davis having taken me through the highlights of the summary - I should make it clear I have not listened to the four hours of recording nor frankly, he admits, has he, but there is enough in what has been pulled out of the recording that I have no reason to doubt that it has been accurately précised in the affidavit - is sufficient to cause me considerable concern that efforts will be made imminently to frustrate the action that the applicant is intending taking. 3. Granting an application like this is in the discretion of the judge, and I am satisfied there is a good, arguable case here. The court has jurisdiction over the substantive claim, given the terms of the loan agreement. And as I say, there is a real and imminent risk of dissipation of the respondent’s assets, which are held in cash and therefore easily mobile and transferrable. 4. I have considered the position of the respondent in reaction to the applicant’s duty of candour to the court. I am satisfied there has been full and frank disclosure by the applicant. I consider the evidence of good faith of the respondent. I have seen a letter from Tarik Sami, the respondent’s director, dated 14 April. That explains how they are complying with the loan agreement. I take that into account in determining both whether to make the injunction and whether to deal with it on the basis of an urgent ex parte application. But it seems to me that there is a solid foundation arising from what has been revealed in the recording that I have already referred to, to indicate that this letter of 14 April may simply be the continuation of a façade of compliance and good faith, as the applicant contend. 5. In all the circumstances, it seems to me it is just and convenient to grant the order sought, for a short period - no more than 14 days, on the basis of the undertakings provided. There are amendments required of the draft order that has been provided which Mr Davis has undertaken to produce before it is confirmed by the court. I indicate that I am satisfied that it is appropriate to make and consider this application ex parte. 6. I make a reporting restriction, as discussed at the beginning of this hearing, and that is really to protect the respondent, but also to ensure that nothing that should not be in the public domain goes into the public domain, this is proportionate given the limited information I have at present and it is of course subject to a full inter partes hearing within a short time. 7. I should also say I have been assured that, although I repeat I have not listened to the recording and I do not have a transcript of the entirety of it, there is no reason to believe that any privileged material is referred to or any part of the recording contains privileged material. The reporting restriction protects both parties in this respect.”

[58]I turn to the law. III. The Law

[59]An applicant for a freezing injunction under section 37 of the Senior Courts Act 1981 must show:(1) a good arguable case in the proceedings;

(2) a real risk, judged objectively, that a future judgment would not be met because of an unjustified dissipation of assets; and

(3) that it would be just and convenient in all the circumstances to grant the relief. As to points of detail: (1) The good arguable case threshold is the same as for summary judgment, i.e., a real prospect of success: Unitel SA Dos Santos

[2024] EWCA Civ 1109

;

[2025] 2 All ER 606

at [96] and [106] (Flaux C) and [123]-[126] (Popplewell LJ). (2) Risk of dissipation must be established by solid evidence showing unjustified dissipation, i.e., “otherwise than in the normal course of business”: Lakatamia Shipping Co Ltd v Morimoto

[2019] EWCA Civ 2203

, [2020] 2 All ER (Comm) 359 at [34] (Haddon-Cave LJ) approving with one correction Fundo Soberano de Angola v dos Santos

[2018] EWHC 2199 (Comm)

at [86] (Popplewell J). (3) Whether freezing relief is just and convenient in all the circumstances should always receive “anxious scrutiny” since ultimately “it is the whole test under section 37”: Dos Santos at [130] (Popplewell LJ). This includes the balance of prejudice between the parties, the intrusiveness of the relief, and the adequacy of the cross-undertaking: Gee on Commercial Injunctions (7th ed, 2022) para 12-051.

[60]The principles as to the duty of full and frank disclosure and fair presentation owed by an applicant on a without notice application are not in dispute. Although a number of cases were referred to in the submissions and provided in a substantial bundle of authorities, the relevant principles can be taken from the judgments of Carr J in Tugushev v Orlov

[2019] EWHC 2031 (Comm)

at [7], and Popplewell J in Fundoat [50]-[53].

[61]In the context of the issues argued before me, the following aspects of that duty require emphasis:(1) Material facts (or arguments) are those which are material to the Court in dealing with the application “as made”; they must be fairly presented at the without notice hearing such that the Court can have full confidence in the thoroughness and objectivity of those presenting the case. One might say that counsel has to argue both sides as the price of making a without notice application.

(2) A fact is material if it would be relevant to the exercise of the court’s discretionin the sense that the Court would need or want to take it into account even if it would not have altered the outcome of the application.

(3) The duty is breached if the material fact (or argument) is in some part of the papers or submissions before the Court but obscured by an unfair summary or presentation of the case, or if it is “buried” in an exhibit.

(4) Equally it may be that the material that the respondent puts before the Court at the return date presents such a different picture that, had the original judge been presented with the material now presented, they would not have made the original order.

(5) The duty of full and frank disclosure is a heavy one which lies on both the applicant and its legal advisers, which extends to matters which could have been identified by reasonable enquiries, and cannot be excused by reference to urgency or practical difficulty.

(6) On any without notice application, the court reposes substantial trust in an applicant's solicitors and counsel. This means the legal representatives must satisfy themselves that the factual allegations being put forward by a lay client are in fact properly evidenced by the material, rather than simply accepting a client's assertions as to what the material shows. The legal representatives also need to satisfy themselves that they have been provided with sufficient evidence of the factual background such that they can be confident that they will be able to provide a fair presentation to the judge. The involvement of legal representatives is one of the reasons that the courts feel able to grant without notice relief, which is a rarity when a self-represented litigant seeks such an order.

[62]The starting point (and usually the default end point) for breach of full and frank disclosure and a failure in fair presentation is immediate discharge of the injunctive relief without renewal. That is so even if the relief would still have been granted had the relevant matters been brought to the Court’s attention at the without notice hearing. The discretion to order otherwise should be exercised “sparingly”: see Tugushev at [7(x)]. But the overriding criterion is always the interests of justice. IV. The Discharge Application

[63]The grounds for discharge relied upon by Mr Day are set out in Appendix I to this judgment. In his well-structured and persuasive submissions, he divided the grounds into three broad categories:(1) the presentation of the Default Notice;

(2) the presentation of the circumstances in which the Recording was made; and

(3) presentation of the content of the Recording. I did not understand Mr Day to suggest that solicitors and counsel had acted in bad faith and indeed there would be no basis for that submission. The case was essentially that there were substantial errors and omissions, and inappropriate reliance on the client’s instructions and interpretation of the Recording.

[64]These are however still serious allegations, which essentially impugn the professional conduct of solicitors and counsel. I will accordingly set out Apollo’s response in some detail. Mr Cammerman KC forcefully opposed the allegations that Apollo or its representatives breached its duty of candour before the Judge. He invited me to apply a “litmus test” as follows: if the evidence before me at this hearing, had been before the Judge at the without notice hearing, would the application have been dismissed? He submitted that the clear answer to this question is no. His argument was that in fact Apollo’s case has grown stronger since the Order was made. Mr Cammerman KC made a large number of points orally and in writing. The Confidential Appendix sets out the essential case made by Apollo as to what it says is revealed by Mr Spina’s words in the Recording. Mr Cammerman KC in his oral submissions underlined that I had to take into account not just what was being said by Mr Spina but also his “tone” and how it showed the breakdown in the relationship. He also invited me to give weight to the fact that because Mr Spina was speaking in private and without knowledge that someone might come to know what was being said, Mr Spina was likely to have been frank about the nature of Nexedge’s intentions - it is said that he essentially disclosed the Plan in this private series of conversations.

[65]As to reliance by Nexedge on a few comments (not threats) said to have been made by Mr Ting in the midst of a difficult commercial relationship breakdown, Mr Cammerman KC submitted there was no evidence that Apollo or Mr Ting were motivated by malicious intent. As to Nexedge’s obligation to pay interest, that arose under the Loan Agreement and was, he argued, not dependent on any notice. He submitted that Nexedge was in default at the time of the hearing and that Apollo had not asked for the payment of interest, it had served the Default Notice seeking the full repayment of the loan principal and all other monies owed. Mr Cammerman KC also underlined that there is a factual dispute about the weekly meetings with a financial controller. He said it was part of Apollo’s case at the hearing that it had read-only access to Nexedge’s bank accounts and that Mr Spina was planning to revoke that access in the Recording. He also said that the fact that the Xero read-only access was not mentioned is not material (the Xero access was not sufficient to discharge the financial information obligation under the Loan Agreement). Further, Mr Cammerman KC submitted that the involvement of Mr Liao and Mr Ting with other companies or entities was not substantively relevant in relation to the payments Apollo says were made in breach of the Loan Agreement. He argued that the Loan Agreement expressly prohibits Nexedge from taking on any form of liability, prohibits any set off, and prohibited the use of loan monies in unapproved ways. The Loan Agreement required Apollo to approve transactions in writing and that did not happen. He said that his client denied that the Recording was pre-meditated and disputed Nexedge’s factual narrative in relation to the Recording. Mr Cammerman KC emphasised that it was made clear to the judge that the extracts exhibited to the Affidavit were not comprehensive and that Mr Davis had not been able to listen to the Recording.

[66]Mr Cammerman KC invited me to conclude that when read as a whole it is clear from the Recording that Mr Spina did plan to dissipate assets off shore. He also emphasised that there was no prescribed form for the default notice and it did not need to identify the defaults. In particular, he said that arguments about the form of the default notice do not constitute material non-disclosure. He underlined that the Judge was asked to read, and did read, the 14 April 2025 letter (that is correct when one considers the judgment I have quoted above at [57]).

[67]I turn to my analysis and conclusions in relation to each of the three heads of complaint set out in Appendix I, but I will reorder them to reflect my own views as to the significance of each head. In short, I essentially accept the submissions of Mr Day. Aside from my concerns as to the legality of the making of the Recording, my overriding concern is that none of the context which I have sought to summarise above in Section II was provided to the Judge. This was not a simple case of breach of a loan agreement by a party who was going to dissipate assets and flee the jurisdiction. When the context is appreciated, the Recording can be understood and it can be seen that the foundation for the claim and alleged risk of dissipation is built on sand. I am confident that had there been fair presentation, the Judge would not have granted the Order or would have directed short notice be given to Nexedge.

(d) , (i))

[68]Although the Judge was informed at thehearing that the Recording was taken without Nexedge’s knowledge, I am satisfied that she was misled as to the circumstances in which it was obtained. In coming to that conclusion I have taken full account of the claimed urgency of the application made to the Judge. Mr Day is right to argue that different and inconsistent explanations have been given for the existence of the Recording. I turn to the various iterations.

[69]As I have noted above, in the exhibit to the Affidavit deployed before the Judge, Mr Liao’s evidence in Exhibit YCLA5 was that the Recording was the product of Apollo’s own “routine internal office monitoring protocol”. That was essentially repeated in the Skeleton. I am satisfied that there was no such “protocol”, certainly from Nexedge’s perspective. The term “protocol” suggests this was an innocent and routine process of making recordings. It was also not clear to me that ultimately Apollo was still maintaining this point.

[70]The Skeleton also said that the Recording was made via ‘Zoom’ via “routine office monitoring”. However, in his oral submissions, Mr Davis informed the Judge that the Recording was generated accidentally because “there was a Zoom meeting between, at the very least, the applicant’s directors and an employee. They left the office without turning off the Zoom link. Officers and directors of the respondent happened by chance to enter the office later”: transcript, page 5B-C.

[71]I am sure that these submissions were made in good faith and based on instructions, but this was an impossibility: Mr Ting, Mr Cheung (Ryan) and Ms Zhang were excluded from Nexedge’s office on 10 April 2025, and the Recording is only around 4 hours 40 minutes long, and was plainly not running overnight. I note also that Mr Davis’ oral explanation shifted from what was said in his skeleton which I have quoted above (which referred to “routine office monitoring”).

[72]It is hard to see how it can be said that the Judge was given an accurate explanation at the hearing when it is now said by Apollo (in its third explanation of events) that the Recording was started and ended remotely on 11 April 2025 from Australia by Mr Liu of Web Pi (said to be a third party company separate from Mr Ting’s business interests) who then reviewed and passed it to Mr Ting and Mr Liao.

[73]I turn to Mr Liu’s explanation as to how the Recording came to be made. I will use his own words rather than summarising his account given the centrality of this evidence:

“Web Pi holds regular technical coordination meetings with two companies it has a commercial relationship with: Data Socket Limited of the registered address of Fora, 8th Floor, One Canada Square, London, England, E14 5AA (“Data Socket”) and Trex Global Ltd of the registered address of Unit 13, Socota Phoenicia, Sayed Hossen Road, Phoenix, Mauritius (“Trex”). The primary purpose of the meetings are to discuss issues in the production environment and relaying client feedback. These meetings are typically attended by myself and my colleagues Mr Ryan Pak Yeung CHEUNG (of Data Socket Limited), Ms Yuki Waiga CHAN (of Apollo XI Limited) and sometimes with Mr Duncan Ting would join when his schedule permits. These meetings are frequently conducted via Zoom and, as a matter of established internal protocol, are recorded for operational traceability and system improvement purposes. A Zoom call could be recorded using the recording option within the Zoom application. The routine meetings are launched daily by myself in Australia, joined by Mr Ryan Pak Yeung Cheung in UK usually from the communal desktop computer of which I believe is located in the open-plan office shared with Nexedge Markets Limited (“Nexedge”) (though sometimes he will use his own computer which is at his desk) and Ms Yuki Waiga Chan from her office in Hong Kong. It is our practice that the audio recordings are retained temporarily (i.e. for 1-2 days) to enable issue tracking and the review of action points discussed during the sessions, also for the staff who are unable to attend whole or part of the meeting. On Friday, 11 April 2025, at approximately 5:00pm Australian Eastern Standard Time, one of our routine meetings was started using a Zoom meeting link that had been used on a previous day and which remained live (this was normal in our practice as we do many Zoom meetings every day). Mr Ryan Pak Yeung Cheung told me that he was working from home. I was working remotely that day, and I left my home workstation earlier than usual to attend my child’s basketball match and let the meeting to continue running itself. In doing so, I inadvertently failed to manually terminate the Zoom meeting recording before leaving. Normally the meetings can be terminated by Mr Cheung from his terminal at the shared office with Nexedge, but Mr Cheung was unable to do so on this occasion due to the termination of his access to the office by Nexedge. At approximately 11:00pm Australian Eastern Standard Time the same evening, upon returning home and resuming work, I noticed the Zoom session was still active and recording. I immediately ended the meeting. Owing to the length of the recording and the unusually large transcription file generated by Zoom, I became concerned that important information related to the earlier technical discussion might have been missed [by other team members that accessed the recording to track and/or review action points]. Accordingly, and in line with my usual practice, I reviewed the recording generated by Zoom to identify any key discussion points. During this process, I discovered, entirely by chance, that the recording contained material wholly unrelated to our meeting on our technical operations, but contained some deeply troubling statements made by Mr Marcelo Spina, Chief Executive Officer of Nexedge and Trex.”

[74]The counter-scenario which is advanced by Nexedge is on the following lines. Mr Ting (or an Apollo employee acting for him) set up a laptop with a Zoom meeting open before leaving on 10 April 2025 with the intention of “spying” after they had been ejected from Nexedge’s offices. They then remotely started the Recording to gather information useful to Apollo. Nexedge says that this laptop must have been collected by Apollo employees when they were let back in on 11 April 2025 to collect their personal belongings.

[75]Absent cross-examination, I cannot comment on the truthfulness or accuracy of Apollo’s latest account. I am however able to make some observations. This recent (post-hearing) explanation is not supported by, and is inconsistent with, the documentary record. The Recording is said in Mr Liao’s Affidavit to be “authentic, complete, and has not been edited or altered in any way”. In his evidence which I have quoted above, Mr Liu says he commenced the Recording at 8am UK time (5pm AEST) and ended it at 2pm UK time (11pm AEST). However:(1) The Recording runs only for around 4 hours 40 minutes, whereas Mr Liu gives a 6 hour time period, and his timings for when he started and finished the Recording are inconsistent with the calls that were actually recorded (which were between 9.51am and 2.12pm UK time) plus the further 20 minutes of recording after the last telephone call before it was stopped remotely (at approximately 2.30pm, which is after midnight in Australia).

(2) The first 40 minutes of the Recording contained video as well as audio (according to the screenshot in evidence) before being switched off remotely. It is striking that no explanation has been given for turning off the video at this time remotely by Mr Liu (or in any other of the witness statements served by Apollo), despite it being raised in Mr Spina’s evidence, and by way of Part 18 Request for Further Information.

(3) If what Mr Liu says is true, one would expect there to be a documentary record of Mr Liu passing the Recording (or at least a link to it) to Mr Ting and Mr Liao by email or other electronic communication. I note that Nexedge requested this as long ago as 8 May 2025 incorrespondence. It has not been provided, for reasons which remain unexplained, despite the assurances in Mr Liu’s evidence. Nor did Mr Cammerman KC address this issue in his submissions.

(4) As I said to Mr Cammerman KC, it is also somewhat surprising that Mr Liu, a CTO in an IT service company, would be able to listen to the Recording and himself form the view that something sinister was afoot and therefore alert Mr Ting. The detail of the Recording requires a knowledge of the Loan Agreement, the Business Plan and relationships concerning Trex and xSyphon.

[76]In my judgment, although it will ultimately be a matter for trial, it is fair to observe at this stage that Mr Liu’s explanation for the Recording has real problems. He says that it was routine to record “technical coordination meetings” between himself (in Australia), Mr Cheung (in the UK) and Ms Yuki Waiga Chan (in Hong Kong), but his evidence is also that he knew that Mr Cheung (Ryan) was working at home that day. It is hard to see a proper reason for Mr Liu to go to the trouble of remotely opening and recording a Zoom meeting in Nexedge’s office. Given the breakdown in the relationship following the 10 April 2025 meeting, the threats made by Mr Ting, and his expulsion from the office, a strong inferential case is available to Nexedge that the Recording was orchestrated by Mr Ting as a form of “bugging”. Only a trial can resolve that issue.

[77]Had this evidence of how the Recording came to be made been put before the Judge, it would have resulted in further questions from the Court about whether Apollo was entitled to the Recording. As I have set out above, the Judge was clearly concerned about how Apollo had come to be in possession of it.

[78]In my judgment, there was a breach of the duty of fair presentation as regards the way in which the Recording was obtained. However, I would go further. Even if the Recording was innocently made (and not the result of some form of “bugging”), the moment that Mr Ting/Mr Liao became aware of it and started to listen it would have been obvious that these were private and confidential communications between Mr Spina and others on a private line, and that Mr Spina could not have consented to the recording of those communications. In short, the Judge should have been informed that there was in principle a breach of confidence involved in use of the Recording. I have noted at [56] that the Judge was concerned about how Apollo had obtained the Recording and it was only in response to her questions that Mr Davis gave an answer (the evidence and his skeleton said there was no privacy). But his oral answer did not come close to identifying correctly how it was obtained, that this was confidential material of Mr Spina’s business calls, and was entitled to be protected (subject to compelling grounds being identified to justify Apollo being able to deploy it). Rather, Mr Davis was concerned about a different matter, potential legal privilege. I will return to the confidentiality issue when I consider discretion below at [114] and following.

(e) , (f), (h))

[79]In my judgment, the content of the Recording was also materially misrepresented to the Judge. The Confidential Appendix to my judgment summarises my conclusions on the eight allegations identified in Liao 1 regarding the Recording. I will set out my overall conclusions in this open judgment without reference to the contents of the Recording.

[80]The principal problem with the presentation was that neither in the evidence nor in the submissions was any context provided to explain the background to the discussions in the Recordings. I have set the context out in Section II above. None of this was presented to the Judge. Rather, Apollo’s representatives provided the Judge with a “cut and paste” job which presented Mr Spina’s words in a sinister fashion when the context would have shown that although relations were poor, Nexedge had no plan to simply close its UK regulated business and then to locate itself offshore, having dissipated its assets including the Loan in the meantime.

[81]This was in circumstances where Mr Davis had not himself listened to the Recording and he did not invite the Judge to do so. I do not know if his Solicitors had satisfied themselves that the way in which the contents were presented by Mr Liao was accurate. I assume they did not given no such indication was given by Mr Davis to the Judge.

[82]Contrary to Mr Cammerman KC’s submissions, there is no plan to cut and run from the jurisdiction (having dissipated assets) revealed by the Recording. Rather, my consideration of the Recording shows plans to distance Nexedge from Apollo (for legitimate commercial reasons given the poor state the relationship had reached), to expand in accordance with the Business Plan and certainly no intention to decline to meet its contractual obligations to Apollo. There was also nothing untoward or suspect about Nexedge wishing to become independent from Apollo given the poor nature of the relationship. I turn to points of more detail.

[83]The Recording was described as being of “a meeting”lasting 4 hours in Nexedge’s office: Liao 1, para 3.2-3.3;skeleton argument at [11]; and transcript, page 5B-D. In fact - and as is obvious from the face of the transcript of the Recording - it is a recording of around 4 hours of Mr Spina’s working day: in particular, 15 calls made by Mr Spina between 9.51am and 2.12pm that day, including to Mr Liao. That would have been obvious to Mr Liao immediately when listening to the Recording. It would also have been obvious to the lawyers for Apollo had they listened to it.

[84]It is not clear to me why a full transcript of the Recording was not put before the Judge, nor why Mr Davis and his solicitors had not satisfied themselves (by listening to it) that it was being accurately presented in the Affidavit. Providing the Judge with a hyperlink to, and USB drive containing, the Recording (which she was not even asked to read in a suggested 20 minute pre-reading period) was not sufficient. As I have noted above, the duty of fair presentation applies to legal representatives. I was taken by Mr Day and Mr Cammerman KC through the material parts of the complete transcript of the Recording (and indeed some parts were played). This was a relatively straightforward process and took no more than about 30 minutes. Mr Day was right to say that a decision appears to have been taken by Apollo to “cherry-pick” excerpts from various different calls captured by the Recording and to use them as evidence of the Plan. The legal representatives went along with this and allowed their client to dictate what would be put forward to the Judge. The next point I turn to shows why this led to a serious error.

[85]Mr Liao held himself out as having reviewed the Recording fully and gave sworn evidence in his Affidavit (deployed by Mr Davis before the Judge) that, on the Recording, Mr Spina “expressly admited [sic] that [Nexedge] intends to transfer funds offshore and sell key assets, with the objective of liquidating the company at any time between now and no later than 1 May 2025” (underlined emphasis added): Liao 1, para 3.4 (which I have set out in full above). To similar effect Mr Davis submitted to the judge: “…the headline summary is that [the excerpts from the Recording] make clear that they are planning to dislocate all of the respondent’s assets, effectively liquidate the company, and they make it clear, on our case, that they are adversely minded against the applicant”: transcript, page 5F-G.

[86]I am concerned as to the accuracy of this evidence and the submissions that relied on it. Having been taken by both Counsel to the material parts of the Recording, and having studied the transcript in my own time, no such ‘express admission’ appears. Mr Cammerman KC identified no such ‘express admission’. Rather, the Recording suggests the exact opposite. So, it contains references to Nexedge continuing to pursue its Application to the FCA, which showed continued adherence to the Business Plan, to expand significantly the scope and revenue of its UK business. Without seeking to put confidential information into the public domain I can give some examples for the purposes of this open judgment. Thus (1) Mr Spina told Ms Chloe Tuck (Mr Sami’s PA) in his 10.42am call:

“we need to get Nexedge through the VOP, right. The variation of permission, which is ongoing”; and (2) Mr Spina told Mr Mackenzie Howard (of iSam, a liquidity provider) in his 11.23am call: “Nexedge is very close to getting the VOP. We’re filling out the applications for that”

. I regret to note that none of this was drawn to the attention of the Judge, despite its materiality to the question of risk of dissipation. None of this suggests a plan to dissipate assets or to run from the jurisdiction - I repeat, quite the opposite.

[87]In addition, Apollo failed to disclose to the Judge other material context relating to the Recording including in the following three respects:(1) Service fee. Nexedge had provided Trex with significant management and trading services for which it was entitled to charge a fee. The parts of the Recording wrongly characterised by Apollo as “false accounting scenarios” werepostulations by Mr Spina as to the potential negotiating positions Nexedge (on the one hand) could adopt with Apollo, Trex and associated companies (on the other hand) with a view to settling any liabilities owed to each other as they parted ways following the breakdown of the relationship. This was commercially legitimate and not unlawful.

(2) New office in Canary Wharf. Nexedge had recently given notice of its contract with FORA and was moving to WeWork on a 13 month minimum term contract, a short distance away within Canary Wharf. This explains a number of passages in the Recording, including the part which Apollo was apparently “most concerned about” (transcript, page 8E-F), namely where Mr Spina was discussing with Ms Tuck about the “move over” (and whether it could be accelerated to 1 May 2025). Apollo knew about the planned office move and failed to disclose it to the Court.In this regard, the video screenshots which Mr Spina took from his visit to WeWork show Mr Ting in attendance at the proposed new offices. The “move over” was not offshore but a few yards up the road in Canary Wharf.

(3) Breakdown of the relationship. There is substantial force in Mr Day’s submission that despite the emphasis placed on the relevant parts of the Recording the Judge was not given the reasons for Nexedge’s desire to be “independent” of Mr Ting and his companies (including Apollo), and the expressions of animosity, i.e., the breakdown of the relationship by 10 April 2025. These facts provide an important context for what is said in the Recording. The Judge would have seen the alleged sinister comments in a very different light had she been told these facts. In relation to the alleged failures to draw to the Judge's attention the dispute and breakdown in relations between Nexedge and Apollo/Mr Ting. Mr Cammerman KC argued that it would have been obvious from the 14 April 2025 letter (which was drawn to the Judge's attention) that “these two parties did not like one another”. That letter however comes nowhere near reflecting the nature of the relationship, that Mr Ting wanted to close down Nexedge, and the animus he had displayed. They were all highly material matters when the Judge was considering the application for without notice relief which would be capable of having serious adverse consequences for a company in the financial services business. The Judge could well have formed the view that this was not a bona fide application to protect assets but part of an overall commercial strategy by Apollo to damage Nexedge in the context of the breakdown in relationships.

(a) , (b), (c), (g), (j))

[88]My conclusions above are sufficient to justify a discharge of the Order. I will however go on to consider this further head of complaint because it overlaps with the issue of good arguable case.

[89]The without notice application “as made” was on the basis that Apollo was entitled to accelerate the Loan and demand full payment of principal and interest under clause 6 of the Loan Agreement. In this regard, the Judge was told that “we are currently in the midst of that seven-day rectification period. A default notice has been served”; a “claim will be imminent because, within four or five days, the rectification will have passed”; and, “once the rectification period expires, in the coming days, [Apollo] has a right to call in the full loan”: transcript, pages 4D, 4G-H, 12C-D.

[90]Mr Davis thus rightly recognised in his submissions to the Judge that the non-payment of interest, provision of financial information, and payments to third parties were capable of rectification (and these were the only three breaches alleged at the without noticestage: see the Skeleton at [9]). Mr Davis’ concession was rightly made given a contractual right to ‘rectify’ a breach is construed in this context as having a broad practical meaning: L Schuler AG v Wickman Machine Tool Sales Ltd

[1974] AC 235

(HL) at 249-250; R Hooley, ‘Express Termination Clauses’ in G Virgo and S Worthington, Commercial Remedies: Resolving Controversies (2017) at 348-349; JE Stannard and D Capper, Termination for Breach of Contract (2nd ed, 2020) para 8.17. Also Chitty on Contracts (35th ed, 2024) para 26-066; Treitel: The Law of Contract (16th ed, 2025) para 18-074.

[91]The Judge’s attention was not however drawn to the fact that the Default Notice had—contrary to Mr Davis’ submissions at the hearing—told Nexedge that “the Default Event is unable to be rectified” (emphasis added). Nor had Apollo identified what the “Default Event” was (other than an oblique reference to clause 6.2.7), so as to enable Nexedge to take steps to try to rectify it. The Default Notice thus did not comply with the requirements of clause 6 of the Loan Agreement and so was ineffective to accelerate the Loan: Western Bulk Carriers K/S v Li Hai Maritime Inc

[2005] EWHC 735 (Comm)

[2005] 2 Lloyd’s Rep 389

at [87]-[88]; Lombard North Central Plc v European Skyjets Ltd (in liquidation)

[2020] EWHC 679 (QB)

at [65]-[66]; and

[2022] EWHC 728 (QB)

at [103]-[107] . See also Chitty para 26-066 and Treitel: The Law of Contract para 18-074. It is not an answer that the Judge could have worked out the problems with the Default Notice for herself. The duty was on Apollo and its legal representatives.

[92]In my judgment, the materiality of this point is underlined by the fact that the Judge expressly noted at the hearing that the evidence showed Nexedge’s “willingness to rectify the situation as it is brought to their attention”: transcript, page 4F. The Judge thus would have been concerned that the Default Notice did not bring to the attention of Nexedge what were alleged to be the unresolved breaches of the Loan Agreement. The Judge would have asked how Nexedge had been placed in a position to exercise its right of rectification under clause 6:(1) It would not have been apparent to Nexedge that the Default Notice related to the non-payment of interest since that is obviously something capable of rectification. Further, in this regard, the Judge should have been told (but was not) that at no point from 21 August 2024 until 14 April 2025 - i.e., after the threat to “finish” Nexedge - had Apollo suggested that Nexedge was in breach by the non-payment of interest (or indeed demanded payment).

(2) Similarly, as regards provision of financial information, it had never been suggested to Nexedge that it was in breach of its information covenant under clause 9 of the Loan Agreement. I would add that it would not have been apparent to Nexedge that the Default Notice related to clause 9 not least because it was providing Apollo with direct read-only, real-time access to Nexedge’s management accounts on Xero. In this regard, Apollo’s evidence in the Affidavit before the Judge that it “lacks any visibility into NML bank accounts”, had only “restricted view-only access to the relevant selective bank accounts” on Xero and did not have “full visibility of the current value or location of [Nexedge’s] assets” was wrong. I have been shown examples of what could be seen by Mr Liao.

(3) Nor had it ever been suggested before Mr Ting decided that the Loan should be “pa[id] back” that Nexedge was in breach of the Loan Agreement by using Loan proceeds to pay Trex and DNA Castle (companies in which he has some form of interest). Mr Liao’s answer is that he knew about the fact of the payments (indeed, he demanded them) but did not know that they had been funded by Loan proceeds. But he would have seen from his Xero access the balance on the loan account reduced by the payments to Trex and DNA Castle. In this regard, I accept as correct what is said by Mr Spina:

“Xero was updated via API information which was pulled in from Nexedge’s bank accounts on a daily basis, and therefore provided Apollo with live access to the financial transactions conducted by Nexedge in connection with the loan” and “Data from Coutts is transmitted to Xero on a daily basis. Current information was and is therefore available through Xero to Mr Liao in the sense that he can see current accounting records for the Nexedge bank accounts associated with the loan proceeds.”

[93]In my judgment, these were clearly matters which the Judge would have needed or wanted to take into account in assessing whether the terms of the Default Notice were adequate to enable acceleration of the Loan under clause 6 of the Loan Agreement. Their omission is a concerning breach of full and frank disclosure and a failure in the duty of fair presentation. Conclusion on discharge

[94]Standing back from what I have said above, I have concluded that the way in which the without notice application was presented to the Judge fell far short of the fair representation obligations on Apollo and its legal representatives.

[95]I am confident that had the Recording been presented fairly to the Judge, the context presented and the legal position adequately explained, the Order would not have been granted or the Judge would have directed notice (even very short notice) before imposing a restraint. But Nexedge does not need to put its case that high to establish materiality; it merely needs to show that the Judge would have needed or wanted to take these matters into account. Plainly that threshold is met here. This is not a close case. Mr Cammerman KC’s “litmus test” (see [64] above) is not consistent with Tugeshev at [7(xi)]. But even if that was the test it would not have been met.

[96]The three heads of complaint I have identified above each alone justify discharge of the Order. When they are put together the case for discharge is overwhelming. I see no basis in the arguments or evidence for not adopting the usual course of discharging the Order. Given that there has been full argument on the continuation of the Order, I will also briefly consider that matter. V. Good arguable case

[97]The claim in the PoC for the principal amount of the Loan is made on two bases:(1) acceleration of the Loan under clause 6 of the Loan Agreement; and

(2) termination of the Loan Agreement for repudiatory breach. The first was the basis pursued before the Judge and does not in my judgment amount to a good arguable case for the reasons given above in relation to discharge. Perhaps in recognition of weaknesses in the Default Notice, in the PoC Apollo places rather greater emphasis on the second basis for claiming the Loan principal. However, in my judgment, this second basis also does not meet the relatively low merits threshold (a summary judgment test) to show a good arguable case.

[98]Termination at common law arises where one contracting party gives notice following a repudiatory breach by the counterparty. A repudiatory breach is a breach of a term that is a condition or a sufficiently serious breach of an innominate term. The PoC alleges that, as a matter of interpretation or implication, certain terms of the Loan Agreement were conditions: see paras 7(c)-(e), (g), (j) and 8(a)-(d) and my summary of the alleged implied terms above at [20]. Termination is not pleaded on the basis of an allegation that there was a sufficiently serious breach of an innominate term.

[99]In BskyB Ltd v HP Enterprise Services UK Ltd

[2010] EWHC 86 (TCC)

Ramsay J, following Lockland Builders v Rickwood (1995) 46 Con LR 92 (CA), held at [1366] that “the fact that for a particular breach the contract provided that there should be a period of notice to remedy the breach would indicate that the breach without the notice would not, in itself, amount to a repudiatory breach”. This reasoning has been followed in a number of subsequent cases and is cited with approval in Chitty at para 26-062 and Treitel at para 18-068.

[100]The fatal problem for Apollo’s termination claim is that clause 6 itself provided that, in the event of an Event of Default, which is defined to include breach of any term of the Loan Agreement (clause 6.2.3), Apollo was not entitled immediately to treat the Loan as being at an end but rather had to give Nexedge an opportunity to rectify the breach. Reading the Loan Agreement as a coherent whole, the parties cannot be taken to have agreed that the terms relied upon by Apollo in the PoC to justify termination were conditions, i.e., terms which when breached entitled Apollo to terminate without more.

[101]Mr Day argued that there was in any event, no relevant breach of the Loan Agreement (and certainly no repudiatory breach). There is force in those submissions, which I accept, and summarise as follows. As to the alleged breaches of the Loan Agreement’s express terms:(1) Non-payment of interest. If there was any breach as regards the non-payment of interest, that was a breach dating back to August or September 2024, and the contract has been affirmed since Apollo took no steps to claim the interest at any time before Mr Ting threatened to “finish” Nexedge (or even before the Default Notice). There is no evidence that interest was ever claimed.

(2) Financial information. By clause 9 of the Loan Agreement, Apollo is entitled to “inspect the use of the Loan”, i.e., understand how Loan proceeds have been applied. This claimed breach is not arguable. Nexedge discharged this obligation by providing read-only, real-time access to Nexedge’s management accounts on Xero. That included automatic updating of the management accounts when the Loan was used at Coutts. I was taken by Mr Day to the exhibits to the Affidavit relied on before the Judge and said by Apollo to support a breach under this head. I agree with him that these documents are not evidence that requests for clause 9 related information were made and unlawfully refused.

(3) Payments to DNA Castle and Trex (entities under the control of Mr Ting and/or Mr Liao or at the very least associated with them). The fees to DNA Castle were for the pricing platform xSyphon used in the regulated business. The Trex Loans US$1.5m – the first million has been conceded not to be in breach of the Loan Agreement and the further US$500,000.00 was to provide Trex with liquidity. Mr Liao had access to Xero and the evidence is clear that he knew of and approved of this loan which has not been repaid. On the evidence before me these payments were plainly within the scope of clause 3 of the Loan Agreement and/or agreed by Apollo acting by Mr Ting and/or Mr Liao.

[102]I do not consider a good arguable case has been established as to breach of express terms.

[103]I turn to the alleged breaches of the Loan Agreement’s implied terms.In my judgment, Apollo’s case faces serious difficulties. First, it is hard to see how such terms can be implied as a matter of obviousness or necessity applying the tests in Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd

[2015] UKSC 72

[2016] AC 742

at [21]. Second, the proposed terms are sweeping and unqualified in nature and not capable of clear or sensible expression (see BNP Paribas at [18]). Mr Day is right to submit that in substance, Apollo is seeking to imply the real risk of dissipation criterion for a freezing injunction into the Loan Agreement. That reverse-engineering is obviously objectionable since it would enable any applicant seeking a freezing order in a contractual claim to bypass the ‘good arguable case’ criterion wherever there is a ‘real risk of dissipation’, no matter how otherwise unmeritorious their contractual claim may be. Third, I find Apollo’s pleaded case on implied terms wholly unpersuasive. The Loan Agreement is a simple contract which is perfectly workable without the implication of these terms. In short, it has a 10 year term, provision for interest payments, restrictions on what the Loan can be used for, accounting disclosure requirements and bespoke notice provisions which permit termination for breach. It is because Apollo cannot on the facts show a basis for termination under the express provisions that it advances a contrived case on implication. I was left with the impression that this is because Apollo and Mr Ting want to find a basis for ‘closing Nexedge’ and calling in the Loan for reasons unrelated to any actual breach and because of the breakdown in the relationship in April 2025.

[104]The entire agreement clause in the Loan Agreement appears to exclude the implication in any event. Clause 14.2, with emphasis added. says: “This Agreement constitutes the entire agreement and understanding between the Parties … no Party shall be bound by any definition, condition, warranty, right, duty or covenant other that as expressly stated in this Agreement”.

[105]On the effect of such an entire agreement clause, see Chitty, para 17-020. Apollo faces an uphill struggle on implication given this term but I am willing to accept Mr Cammerman KC’s submission that whether there would be implication is a matter for trial. However, even assuming such terms fall to be implied, they were not breached on the basis of what appears in the PoC. The inadequately pleaded allegations of dishonesty, bad faith, conspiracy and intended harm are each contingent on the mischaracterisation of the Recording which I have addressed above and in the Confidential Appendix. As I have said, the factual case of Apollo as to what the Recording is said to show is in my judgment fanciful, and that factual case underpins the particulars of breach of the alleged implied terms.

[106]I would add that the pleaded allegations regarding “regulatory breaches” fail to identify the regulatory provisions that Apollo alleges were breached. For completeness, I also consider, for the reasons set out at para. [8] in the 2nd witness statement of Nexedge’s Solicitor, Ravi Nayer (as supported by the documents he exhibits), the allegations of regulatory breaches in Mr Ting’s evidence and claims of a lack of knowledge of use of Loan monies are hopeless (having regard to the visibility given to Apollo by Xero and the fact that the entities receiving funds were clearly associated with Mr Ting).

[107]I am not persuaded there is a good arguable case on breach of implied terms.

[108]Of course, with better and different evidence, Apollo may be able to convince the court later in these proceedings that it does have a good arguable case which would survive summary judgment. On the material before me, it has not overcome this modest hurdle for the purposes of the court's freezing order jurisdiction. Although it does not arise, I will go on to consider the risk of dissipation. VI. Risk of dissipation

[109]In my judgment, Apollo’s claim for continuation also fails on this requirement. Taking the evidence as a whole, there is no objective risk of unjustified dissipation. Nexedge’s sole office is in the UK (for which it has just entered into a new contract for over a year); all its employees are based in the UK, as is its existing client base; and its only business is operating as an FCA regulated financial services firm in the UK, which (by the VoP Application) it is seeking to expand, not liquidate.

[110]The content of the Recording has been addressed by me above and in the Confidential Appendix. It provides no support on the dissipation case. It is also significant that Mr Spina (the only person recorded) does not have authority to make transfers from Nexedge’s accounts in any event, so cannot himself be the source of any risk of dissipation by Nexedge: see Gee at 12-042. Only Mr Sami had such authority and there is no solid evidence that his conduct shows an intention to dissipate.

[111]The remaining allegations (set out in Liao 1, para 3.1 and Liao 2, paras 7.2-7.4) are either a re-hash of the allegations of breach which have already been addressed above, or amount to generalised allegations about liquid assets of the type deprecated in the authorities: see, e.g., United Petroleum Trading Switzerland SA v Mitro International Ltd

[2019] EWHC 1382 (Comm)

at [33(2)]. Nexedge’s very business requires it to have liquid assets, and no evidence has been produced that between the so-called Plan being revealed in the Recording and the Order, there was any improper movement of assets.

[112]Overall, there is no evidence, let alone solid evidence, supporting the risk of dissipation case. The case is based on a conspiracist’s theory of what Mr Spina said in one side of discussions in the Recording which concern a wide variety of other matters. I have formed the firm view that the contents of the Recording do not support the sinister interpretation that an asset-stripping plan was afoot. VII. Justice and fairness in all the circumstances

[113]Even though Apollo’s case fails for multiple other reasons, all the circumstances point away from it being just and fair to continue the Order. In my judgment, as soon as Mr Liu began to review the Recording he would have realised that it was not a recording of any technical meeting at all but rather a recording of what Mr Spina was saying on his calls in Nexedge’s office. At that point he should have stopped reviewing the Recording. At the hearing before the judge, Apollo made the assertion that “there is no privacy breach in relation to this recording” in its skeleton argument and the evidence. That was not correct.

[114]In my judgment, in the circumstances in which the Recording was obtained:(1) there was a reasonable expectation of privacy, and no justification has been identified by Apollo for interfering with that expectation; and

(2) the information was confidential and received in circumstances importing an obligation of confidence, in addition to the existence of privilege as regards Mr Spina’s calls with Mr Schreiber. The present case falls within the analysis of Lord Phillips MR in D v L

[2003] EWCA Civ 1169

, [2004] EMLR 1 at [24] and Lord Neuberger MR in Imerman v Tchenguiz

[2010] EWCA Civ 908

[2011] Fam 116

at [68]-[69].

[115]Although this is an interim hearing, where the evidence has not been tested by cross-examination, the court's conscience is shocked by Apollo’s admitted behaviour. Even if it was not responsible for setting up a bug through the laptop being left open and then engaged to record, it would have been obvious from the very start of the Recording that it was private and confidential. This case appears to be the type of situation I commented on in the context of a breach of confidence claim inClearcourse Partnership Acquireco Ltd v Gualtieri

[2022] EWHC 1199 (QB)

at [47]: “Whether or not [the defendant] was actively eavesdropping, the duty of confidence does not arise only when a person actively seeks out private and confidential information. A duty of confidence may arise when a person has noticed that the information they receive is of a confidential nature, and [the defendant] knew that [the other parties] were having a private discussion”.

[116]Mr Cammerman KC focussed in his submissions on the admissibility of the Recording, citing case law to the effect that even “stolen” evidence is admissible in civil proceedings. With respect, that misses the point. My concern is not admissibility but the deployment of the Recording and how it impacts upon the exercise of my discretion to grant injunctive relief.

[117]Although I cannot make a final decision on this matter (there having been no cross-examination of Apollo’s witnesses), I consider the facts before me give rise to a serious case for Apollo to answer at trial that the Recording was the result of a form of unlawful bugging as a business strategy, following the breakdown of relations culminating in the 10 April 2025 meeting.

[118]Finally, although I do not need to determine the issue, in relation to my discretion I consider there to be substantial force in Mr Day’s submissions that the Order, if continued, would cripple Nexedge which is at a critical moment in its growth phase. It would prevent it from being able to operate under its expanded permissions (should they be granted by the FCA). I note also that the Order in this case was even more intrusive than usual in that it did not contain the usual carve out for ordinary business expenses, requiring Nexedge to seek consent from Apollo in advance for every line item of expenditure. That would make it impossible for Nexedge to operate in real time in the financial markets as a broker, offering professional clients direct trading and CFD liquidity, as intended by the VoP Application.

[119]Finally, in my judgment, the cross-undertaking in damages offers no protection. Apollo is a BVI special purpose vehicle and (unusually) has failed to serve in evidence any information as to its assets other than a month-old screenshot of its bank account balance. I have no evidential basis for concluding that Apollo is in a position to meet any claim under the cross-undertaking. In any event, I agree with Mr Day that such a claim offers limited assurances given the difficulties in quantifying a loss of opportunity claim. VIII. Conclusion

[120]The Order is discharged. IX. Postscript: delaying public release of the judgment

[121]Following circulation of a draft of this judgment for corrections, Mr Cammerman KC and Mr Davis made an unusual written application as follows. They asked me to delay the publication of this judgment (not the formal handing down) because Mr Liu of Web Pi “...is not a party to the litigation and is therefore unaware of this judgment and its contents he should, as a matter of fairness, be given an opportunity to prepare for publication and should not, as a third party in a different jurisdiction, be surprised by a judgment of this nature”. Apollo proposed a delay until 23 June 2025.

[122]I rejected this application. It is part of the principle of open justice that the court’s reasons for its decisions be made public at the same time as notified in final form to the parties. That is achieved by making copies of a judgment available to anyone who wants a copy at court following hand down or as is more usual these days by release to the National Archives. There might be rare exceptions to the principle that the public are entitled to see a final judgment at the same time as the parties. An example might be where the court’s reasons may put into the public domain material which a party says should remain private or confidential pending appeal. This is not such a case. There is nothing special about Mr Liu’s position. He has given evidence in a witness statement in this case which I have commented upon. I have not drawn any final conclusions as to the accuracy of that evidence. Those conclusions must await trial and his oral evidence, if he is called as a witness. A person who submits a witness statement knowing it is for use in court proceedings must know the court may express views as to what the witness has said. This judgment, subject to the confidentiality of Appendix II, will become public today. APPENDIX I Grounds relied upon for discharge of the Order (a). Apollo failed to draw to the Court’s attention that it had not sought payment of interest under the Loan Agreement until after the parties’ relationship broke down in mid-April 2025. (b). Apollo failed to draw the Court’s attention sufficiently to the fact that Apollo had real-time access to Nexedge’s management accounts at all times (and via those accounts Nexedge’s bank accounts) and had weekly meetings with its financial controller at which questions could be, and were, raised on those accounts. (c). Apollo failed to explain to the Court the true nature of its relationship (including the direct involvement of Mr Liao) with the two third party recipient of proceeds under the Loan Agreement, namely Trex and DNA Castle, and that Mr Liao and Mr Ting (and thereby Apollo) knew about, requested and/or consented to those transfers. (d). Apollo failed to explain the circumstances in which the recording of 11 April 2025 had been obtained. In particular, the recording was pre-meditated and not obtained pursuant to a protocol or because an employee accidentally left Zoom running on their laptop (which were the two inconsistent stories told to the Court at the ex parte hearing). (e). Apollo failed fairly or accurately to present the content of the recording of 11 April 2025, instead misrepresenting excerpts of the transcript divorced from their proper context to the Court and missing parts of it altogether. Contrary to the impression given to the Court at the ex parte hearing, no part of the transcript in fact contained a statement from Mr Spina and/or Mr Sami (or anyone else) to the effect that they intended to asset strip Nexedge and/or move Nexedge funds offshore). (f). Apollo failed to draw, or draw sufficiently, to the Court’s attention that Nexedge and its director were regulated by the FCA and that Nexedge’s intended business plan, far from contemplating a dissipation of assets from the UK, involved an expansion of its regulated activities and assets in the UK. (g). Apollo failed to draw to the Court’s attention the fact that the Alleged Notice of Default did not identify what the defaults were and claimed (contrary to the submissions made to the Court about the possibility of rectification) that such defaults were “unable to be rectified”. (h). Apollo failed to draw to the Court’s attention the reasons for Nexedge seeking independence from, or otherwise privately expressing adverse comments about Apollo, including the breakdown of the relationship that had led to Mr Ting and his team having their access to Nexedge’s offices suspended on 10 April 2025. (i). Apollo failed to draw to the Court’s attention the fact that the recording contained privileged material, and indeed submitted to the Court that there was no suggestion the recording contained privileged material. The recording contains three separate conversations with Nexedge’s General Counsel and Head of Compliance, Mark Schreiber. (j). Apollo failed to draw the Court’s attention to the content of Nexedge’s letter of 14 April 2025, which included a detailed calculation and explanation of the correct amount of interest due, as well as an explanation of the payments that Apollo alleges were unauthorised third party payments. APPENDIX II: CONFIDENTIAL JUDGMENT ON THE RECORDINGS PROVIDED ONLY TO THE PARTIES

Order

(1) the Defendant’s application, made by Application Notice dated 9 May 2025, to discharge the Order on grounds of material non-disclosure and breach of the duty of fair presentation; and

(2) the Claimant’s application at the Return Day to continue the Order. A Return Day was provided for by paragraph 4 of the Order and has been extended by a number of consent orders.