Global Asset Portfolio Limited v Fazriki Limited & Ors

1. On 13 January of this year, the claimant, Global Asset Portfolio Limited, made a without notice application for a freezing injunction against eight different defendants. The first is a company called Fazriki Limited of which the second defendant, Ms Mila Raedermacher, is a director. The third defendant, Cassillis Investment Management Limited, and the fourth defendant, Cyborn Limited are also companies associated with Ms Raedermacher. The sixth, Arden SG Holdings PTE Limited and the eighth, Protectir Limited, are companies which Ms Raedermacher says she is not a director of or shareholder in but their relevance will become clear shortly. The seventh defendant is an individual.

2. The background to the without notice application was that Global Asset had entered into an agreement with Fazriki to the effect that it would supply cash in the sum of $9.4 million which would be invested for it and the cash which was was duly forwarded to Fazriki’s bank account in pursuance of the agreement.

3. However, part of the evidence filed on 13 January was a statement made by Mr Wright, who is a director of GAP. In paragraph 8 of his first affidavit he said it had been represented to his company that the funds were to be held in a non-depletion account at Barclays Bank. This meant that the principal sum would remain intact and only be used as proof as funds for a trading transaction linked to what was referred to as the Opus 4 bond. GAP was promised returns of 10 to 15% per month over a twelve-month period.

4. As it turned out and as a result of Norwich Pharmacal orders which were made by Mr Justice Jacobs in around September of last year, the information provided by Barclays Bank which held the relevant Fazriki account, showed that very soon after the funds which had been transferred on 1 February 2022, the following disbursements occurred: i) Three days after the money was transferred, $2.391 million was used for the purchase of what is called The Grey House, a residential property which is said to be the principal residence of Ms Raedermacher (although she has challenged that today, it is registered in the name of the third respondent, that is to say Cassillis, and Cassillis has a director who was a former CEO of, I think, the first respondent). ii) Then, between 18 February and 5 May 2022, $14,000 went out to Cassillis. iii) Also on 4 February, $681,000 went to the fourth respondent; on 5 February, $200,000 went to the fifth respondent, that is Cuckoobag, which is one of Ms Raedermacher’s companies. On 3 February, $1 million went to the sixth respondent, Arden SG Holdings PTE Limited, and a further $1.3 million was transferred to the same company between 11 May and 27 June 2022. iv) Then $102,000 went to the seventh respondent, Mr Cunliffe, and $5,000 went to the eighth respondent.

5. It is because those sums were dispersed to those individuals or entities that they have all become defendants to this claim. So that certainly the vast majority of the $9.4 million that came in, went out in that way.

6. Armed with that information, the claimant therefore made its without notice application for the freezing injunction. There was other evidence before the court, but the underlying claim was that this was money which in the event had been obtained fraudulently, because there was a representation it would remain in a non-depletion account, but in any event has been misused because of those disbursements which could not be described as investments of any kind. As a result of that, the claim was put on the basis of breach of contract and fraudulent misrepresentation.

7. Now, what I need to look at next is the agreement itself. It is referred to expressly as an umbrella agreement for cash. Now in fact it appears that a contract specific to the umbrella agreement was the one which is referred to in schedule B to that agreement. There is reference there with the Opus 4 bond to be fully funded, which was said to be for an initial term of one year, coupled with an Opus 4 bond. Once the funding is in place, GAP will receive between a 10 and 15% monthly return over a ten-month period.

8. Now what in fact happened, it would appear, is very little, because the monies that were received went out in the ways that I have shown. According to Mr Wright there were concerns about all of this and indeed at one stage there was a statutory demand made of Fazriki. That generated a document which is a letter from Ms Raedermacher, and she accepts that she signed this letter, which says as follows: “Private corporate transaction, umbrella agreement. This serves as an official corporate guarantee in respect of US $9.4 million which is confirmed to be held in a non-depletion account in the name of Fazriki Limited, received from GAP on 31 January 2022 relating to the current transaction in the contract dated 31 January 2022, countersigned by both parties. Furthermore, this corporate guarantee also guarantees interest at the rate of 15% per month from the duration of the contract. This transaction is a participation within the Opus 4 transaction which has been pledged to our fund since inception of the GAP contract. We hereby confirm that this transaction is in the final stages of completion and should take no more than 14 days to complete. Payment will be made to Global Asset Portfolio Limited within three banking days of receipt of funds from the Opus 4 transaction”. None of that actually happened at that stage.

9. As a result of further expressions of concern, on 15 January there was a letter from Mr Clancy, who describes himself as an in-house lawyer. He is an unregistered barrister, as I understand it; he does not have the right to carry out any legal services but that does not affect his ability to write this letter. He says that: “The above funds are held in an appropriate account on behalf of Global Asset Portfolio”, and that he reviewed pledged documents, the GIS statement of the asset pledged to Ozturk and notarised documentation. Offer letters from Ozturk, email and various correspondence between Ozturk and Fazriki. KYC of Ozturk, contract between Ozturk and Fazriki Limited. He says he has reviewed these contracts which are all documents which have also been verified by a notary public. He also confirmed there were sufficient funds to the value of $9.4 million plus being held in a relevant account at Ozturk Holdings on behalf of Fazriki Limited. This position is held with the pledge from the Opus bond.

10. What then happened was, perhaps unsurprisingly, a firm of solicitors with whom Ms Hyde is associated, wrote on 14 February asking for all the documents which Mr Clancy had been referring to. None of those documents emerged and that was what gave rise then to a statutory demand. That did lead to some insolvency proceedings. There were other individuals who claimed that they were owed money by Fazriki as well, individuals who, it seems, were known both to Mr Wright of GAP and also Ms Raedermacher.

11. A witness statement of Mr Paderson was filed. In that witness statement he challenged Ms Raedermacher on a number of points, when she burst into tears and said: “I just needed a house for me and my daughter” and also admitted other payments made to other vanity projects. I will come back to that in a moment.

12. As a result of that and other evidence, and given the way in which the $9.4 million had been dissipated swiftly after it entered into Fazriki’s bank account, which was evidence that had been obtained from the Norwich Pharmacal order which had been sought precisely because GAP was concerned about what had happened to the $9.4 million, Mr Justice Picken made the freezing injunction for the sum of $9.4 million in conventional terms. It allowed the respondents to expend money in respect of legal expenses for a reasonable sum and a respondent spending £500 a week towards its ordinary living expenses. That to be subject of agreement between the parties.

13. Now, I deal with a preliminary point, because Ms Raedermacher said, well, it was unfair that there was a hearing without them being present. That was the application before Mr Justice Picken. It is not unfair, because in situations where there are claims like this and concerns about the dissipation of assets, it is quite normal to have a without notice application. However, of course, that is only a temporary injunction and it will only last until a further hearing, which has been the hearing I have conducted today, namely, 30 January.

14. All respondents were duly and properly served, there is no issue about that. That led to two documents being provided. First of all there was a witness statement and the essence of what she says is that effectively the agreement allowed Fazriki to do what it wants with the monies, and so there can be no complaint at all. She also made the point that the agreement itself did not refer to money being held in the non-depletion account, and that is true. She points to various clauses, particularly the ones that say that the cash must be provided free of incumbrances. That means that the defendants can do anything they want in relation to the money.

15. There was also then a skeleton argument from Mr Clancy, although he did not appear before me today, denying the allegations that there had been any fraud or dishonesty and making the same point, effectively, that there was inhibition or prohibition in the agreement in terms of how those funds should be invested. Therefore, there was nothing to complain about at all.

16. What none of the respondents have yet done, and at least for most of them the time for them doing so would have run out by now, is that none of them have provided any information about their assets. Paragraph 11 of the injunction says that: “All of the respondents must within seven days of service of this order and to the best of their ability, inform the applicant of all of their assets exceeding £5,000, whether in their own name or not and whether solely or jointly owned, giving the value, location and details of all such assets”. Then within ten working days of that, the respondents: “Must swear and serve on the applicant’s solicitors an affidavit setting out all of the above information”.

17. So today I heard first of all from Mr Waring, who says he has an agreement to act as legal director of Fazriki. That may simply be a convenient expression but there is no yet formal record of him being a director of the company, although he says he was told he was going to be. At any rate, I allowed him to make points for Fazriki. Secondly, I heard from Ms Raedermacher who then made submissions in relation to herself and Cuckoobag, the company that she owns. There has been no response at all from any of the other corporate defendants. I have no information before me at all about what the financial position of any of those defendants is and I have no information from Ms Raedermacher about that.

18. Now, the first question is whether there is or remains a good arguable case for fraudulent misrepresentation and breach of contract, and I have to deal with the argument that says there is not, because: “They could do whatever they like with that money”. I do not accept that the agreement is as far-reaching as that. There is a particular contract which says that it should go into the Opus 4 fund and in fact unless it has been extended, and there is no evidence it has been, it actually terminates after a year. So on that basis the money would have to come back. However, in any event, on the evidence before me it is highly arguable that the money did not go into a fund but went into the various disbursements which have been mentioned. It is extremely hard to see how that can be described as a proper investment of the funds.

19. So far as the house is concerned, there is the evidence that Ms Raedermacher told Mr Moss that it was a house for her and her daughter. Ms Raedermacher says she had a conversation where she may have said something along those lines but it was a difficult time and it was a rather emotional time for the parties concerned. Nonetheless, if that is what happened, it is very hard to see that that is an investment. Today she told me, actually it was not for her, she lives somewhere else and this was for some other business use which she did not really elaborate on, except that it is in the name of this company called Cassillis Investment Management Limited. She has not served any evidence in respect of this.

20. The point still remains, in my judgment, that it is very difficult to see how the payment which allowed that respondent to obtain a house and the payments to all the other respondents can constitute an investment. In fact, none of the respondents have really dealt with the point about why those disbursements have been made. They have been aware of them for some time because in fact although it would not normally be the case, they were alerted to the making of an earlier Norwich Pharmacal application and of course, Fazriki and Ms Raedermacher know perfectly well where the money went to because they were the ones controlling the bank account.

21. So on any view it is very difficult to see how those could constitute any form of proper investment of the monies. What in fact the respondents have said is actually, the money is somewhere else and that appears to have been what Mr Clancy was getting at when he said the money was held with a company called Ozturk. However, they have refused to provide any of the documents showing that the funds are there and they have had a year or so in which to do it. So I cannot have any confidence that that is a proper investment at all or that indeed there is $9.4 million sitting there which is attributable to GAP. However, as Mr Reevell said in his submissions, if the defendants want to avoid the injunction by saying: “We can ringfence $9.4 million in your favour because it is sitting in a bank account to which we have access”, all they have to do is provide that information and show that $9.4 million is sitting there. That they have direct control over it and that they will hold it for the benefit of GAP. That is one way of dealing with this matter. However, that suggestion has not been made today.

22. Of course, back in January 2025, it was also said that this was all going to be dealt with by the completion of the Opus 4 fund and that monies would be dispersed very soon back to GAP. None of that happened and Ms Raedermacher simply said, well, there were other difficulties that got in the way.

23. So far as the allegation about non-depletion is concerned, the respondents are correct, there is not that term in the contract. However, as to the representation (that it was suggested was made before the contract was made) that the money would be held in a non-depletion account, that is denied by Ms Raedermacher. However, in June 2023 she did sign this document which said that she confirmed that the money was being held in a non-depletion account. That at least suggests she is perfectly familiar with the expression “Non-depletion”.

24. Now she says that she was pushed into this document to stave off a statutory demand and that that original draft of the assurance or the corporate guarantee which she made, did not refer to to non-depletion but Mr Wright changed it and demanded that she sign it. She did sign it and she accepts that she signed it knowing what those words were. For present purposes it is certainly highly arguable that that indicates that the whole idea of non-depreciation is not something which has just been invented by the claimant, even if it is not a term in the contract.

25. I should add that there is another letter which was after, I think, the recent discussions on 27 March where further assurances were given about the ability of Fazriki to start making payments. The bottom line is that there is no actual evidence of where this money is on the respondents’ case, apart from where it was disbursed immediately afterwards. None of the promised payments have been made and we are now four years into this agreement, where the underlying contract for Opus 4 was said to expire after one term. So I am quite satisfied for present purposes that there is a good arguable case on the merits.

26. The second question is whether it is and remains evidence of dissipation of assets without the injunction. I have no doubt about that. We have been provided with very little information concerning where the funds have gone. There is no real detail to it. In addition to that, we have perhaps the best evidence of dissipation, which is what happened to the $9.4 million almost as soon as it went in to Fazriki’s bank account. So I have got no doubt at all that there is a real risk of dissipation if the injunction is not granted.

27. Now as against that, first of all Ms Raedermacher says that she is being prejudiced by the continuation of the injunction because credit cards have been frozen and so on. I have got no detail about that. She says she would have to use cash to travel on the Tube, if she needed to travel on the Tube. I think she is based in Preston. However, there has been no detail about that. She could have put detail about that in her witness statement, she did not. As I say, at the moment we have no idea about what her assets are because she has not yet complied with paragraph 11 of the order. Of course, the order itself does provide for the payment of reasonable sums for legal expenses and £500 a week for living expenses.

28. Now, if the respondents are right and the $9.4 million is sitting in a bank account to the order of GAP, in other words, it appears not to have been yet the subject of any successful investment, then they can avoid all of these problems by paying it over, on the basis that it is GAP’s money to begin with. However, without that happening there is no reason why the injunction should not continue. As I say, I have no other information about the assets of any of the other companies. Ms Raedermacher said, well, it makes it difficult to trade, but there is no evidence in fact that any of these companies are trading. Of course, Fazriki in particular has been the subject of insolvency proceedings. So that is no objection to the continuation of the injunction.

29. Her other point, however, was that she was not satisfied by the affidavit of assets of Global Asset, which was required in order to support the cross-undertakings. Now what has happened in relation to that is that the affidavit of assets says that Mr Wright has personal cash or asset value of approximately £250,000 which has enabled him to fund the applicant’s legal costs to date. Those were personal assets. There is no detail given about them. However, he says that the company holds a digital asset position comprising Backters tokens and said that they are held via an account administered by Backters and that the tokens are recorded on a block chain. That at present values the sterling value of those block chain investments is about £24 million, although they did not represent readily-realisable value and they should not be regarded as cash.

30. Now in the light of that, because I am otherwise satisfied for the reasons I have given that this injunction should be continued, I am going to make some additional orders. I am going to order that Global Asset should produce within 28 days the sum of £100,000 which must be held in a solicitors’ account for the purposes of these proceedings. Now I am not sure at the moment and we will discuss it later, whether Ms Hyde is still a practising solicitor, because this will have to be a firm of solicitors with a proper client account. If her current firm does not satisfy those requirements, then GAP will have to find external solicitors to do it.

31. The second thing is that I am going to order that Mr Wright provides a further affidavit of assets which should do two things. First of all it must give details of the £250,000 personal assets which he says he has. Secondly, there must be documentary evidence in whatever is the appropriate form, of the Backters token, which will clearly exist so as to enable the court to be satisfied that they are proper assets which can be the subject of the cross-undertakings. £100,000 might seem a low amount in relation to a freezing injunction of over £9 million, but the reason for that is that at the moment I have got absolutely no evidence of any real business activity being conducted on the part of any of these respondents and I have no information from Ms Raedermacher. So the extent to which there can be any real prejudice by this injunction seems to me to be very doubtful. However, lest there should be some prejudice, that is why I am ordering the sum of £100,000. _________________________ Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com