FEDERAL COURT OF AUSTRALIA

PlayUp Limited v Mintas [2022] FCA 892

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the defendant on 3 March 2022 (Interlocutory Application) is dismissed.

2.    The defendant pay the plaintiff’s costs of the Interlocutory Application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J

1    On 1 December 2021 the plaintiff, PlayUp Limited, commenced this proceeding by the filing of an originating application seeking orders against the defendant, Dr Laila Mintas, on an interim and final basis including orders pursuant to s 1324 of the Corporations Act 2001 (Cth) restraining Dr Mintas from denigrating or disparaging PlayUp, any of its associated entities, its officers or officers of its associated entities.

2    On that day, on the ex parte application of PlayUp, the Court made orders pursuant to subs 1324(1)(a) and (4) of the Corporations Act restraining Dr Mintas, her servants and agents from publishing false or disparaging information about, or making false or disparaging statements to certain persons or entities in connection with PlayUp, until further order.

3    On 3 February 2022 PlayUp filed an amended originating application and statement of claim. In its amended originating application PlayUp seeks additional relief including declarations of contravention of ss 181, 182 and 183 of the Corporations Act and compensation pursuant to s 1317H of the Corporations Act in relation to those alleged contraventions.

4    In the meantime, on 30 November 2021 PlayUp Inc (PlayUp US), a wholly owned subsidiary of PlayUp, commenced case no. 2:21-cv-02129-GMN-NJK in the United States District Court, District of Nevada (Nevada Court) against Dr Mintas as defendant (US Proceeding).

5    On 3 March 2022 Dr Mintas filed an interlocutory application in this proceeding seeking orders that the proceeding be summarily dismissed “and/or [that] there is a parallel proceeding in the District Court of Nevada such that this Court is not the proper forum for the proceeding”. It is that application which is before the Court for determination.

BACKGROUND

6    In support of her interlocutory application Dr Mintas relied on two affidavits dated 1 March 2022 and 28 April 2022 and a bundle of documents from the US Proceeding. Dr Mintas qualified as a lawyer in Germany and practised as a commercial lawyer for three years before taking on other roles. She is self represented in this proceeding and, although a lawyer, is not familiar with Australian law and the rules which govern practice in this jurisdiction. Against that background, I make the following observations about Dr Mintas’ affidavits.

7    First, PlayUp made substantial objections to the affidavits. However, rather than addressing each of the objections, they were admitted subject to PlayUp addressing me on the weight I would give to their contents. In that regard, I accept PlayUp’s submission that I would not give much weight to the contents of the affidavits save to the extent that they establish that there are a number of disputes about the facts which underpin the claims made by PlayUp in its statement of claim.

8    Secondly, they contain material which is better described as submissions rather than evidence. To the extent that is so, and in the absence of Dr Mintas having filed any written submissions, I have taken those parts of her affidavits to constitute her submissions.

9    PlayUp relied on:

(1)    an affidavit affirmed by Daniel Matthew Simic, one of its directors and the founder of the PlayUp Group (see [12] below), affirmed on 30 November 2021;

(2)    an affidavit affirmed by Ross Kenneth Benson, director of InvestorLink Group Limited, a shareholder in PlayUp, on 1 December 2021;

(3)    an affidavit sworn by Michael Dominic Costa, its chief technology officer, on 14 April 2022;

(4)    an affidavit sworn by Michael Steven Popok, executive managing partner of Zumpano, Patricios & Popok PLLC, legal counsel for PlayUp US in the US Proceeding, on 13 April 2022; and

(5)    an affidavit sworn by Ashley Maurice Kerr, its general counsel, on 9 May 2022.

10    I set out below a summary of the facts relied on by the parties. In doing so I do not set out all of the evidence before me. However, a review of the evidence demonstrates that there are a number of factual disputes between PlayUp and Dr Mintas in relation to the allegations at the heart of this proceeding.

The parties

11    PlayUp is an unlisted public company incorporated in Australia with subsidiaries in multiple countries around the world including India and the United States. Its head office is in Sydney.

12    PlayUp operates an online wagering and entertainment business by itself and through its subsidiaries (together the PlayUp Group), one of which is PlayUp US. The PlayUp Group holds betting licences in multiple jurisdictions, with its activities occurring principally in Australia, New Zealand, India and the United States of America (US or USA).

13    Mr Simic is the global chief executive officer of PlayUp and a member of PlayUp’s board. The other current members of PlayUp’s board are Richard Paul Sapsford, who is the chair, and Dennis Drazin. From November 2018 to 16 March 2022, Mr Costa was also a director of PlayUp.

14    Dr Mintas is the former chief executive officer of PlayUp US which was incorporated in 2019 under the laws of Delaware, USA. PlayUp US was established to allow PlayUp to enter the US market. Through its subsidiaries, PlayUp US has obtained and operates two online sports wagering licences (in Colorado and New Jersey) and has obtained online market access licence agreements for online sports wagering and iGaming in other states in the USA which are in the process of being activated.

15    Play Foundation Limited operates the PlayChip Foundation, a not for profit organisation which established a crypto currency coin called the PlayChip. The PlayChip is used for online gaming applications. PlayChip Foundation holds 1,538,641 shares in PlayUp as a result of conversion by holders of PlayChips to shares in PlayUp on 30 September 2020 after an initial coin offering for the PlayChip was abandoned. PlayChip Foundation has not traded for several years.

Dr Mintas’ employment contract

16    Dr Mintas was employed as chief executive officer of PlayUp US pursuant to a contract of employment between her and PlayUp US dated 30 November 2019, as varied by a subsequent contract of employment on or about 30 September 2020 (together, Employment Agreement). The terms of the two employment contracts, which together are referred to as the Employment Agreement, have identical (or substantially identical terms) save in relation to the definition of the Employment Period and the compensation and benefits payable to Dr Mintas. In the Employment Agreement Dr Mintas is referred to as “Executive”.

17    In the first agreement the Employment Period was the period beginning on the “Effective Date” which, for the purposes of that agreement, was the date which was one day after the shareholders in PlayUp approved of the share grants described in section 4(f) of that agreement, and ending two years after that date, unless ended earlier in accordance with section 5 of the agreement. In the second agreement the Employment Period commenced on 30 September 2020 and ended on 30 November 2021. The Employment Agreement was thus for a fixed term ending on 30 November 2021.

18    Subject to those matters, the Employment Agreement relevantly included the following terms:

(1)    under the heading “2. Position, Duties and Certain Definitions” (as written):

(a)    During the Employment Period, Executive shall serve as the Chief Executive Officer of the Company and shall report to, the Company’s Board of Directors and the Chief Execrative Officer of PlayUp Ltd, an Australian limited corporation.

…

(e)    Executive will serve, at no extra compensation, as a member of the Board of Directors of PlayUp Ltd. Executive’s travel and other out of pocket expenses related to her work as a board member shall be reimbursed in accordance with the policies of the PlayUp Ltd Board.

(2)    under the heading “6. Confidentiality: Non-Competition, Non-Solicitation; Non-Disparagement”:

(e)    Executive shall not, in any communications with the press or other media or in any communications with any business relation of the Company or any of its Subsidiaries, criticize, ridicule or make any statement which disparages, or is derogatory of, the Company or any of its Subsidiaries or any of their respective directors, managers, or officers. Executive shall not engage in any form of conduct or make any statements or representations that disparage, portray in a negative light, or otherwise impair the reputation or commercial interests of the Company or its past, present and future Subsidiaries, divisions, Affiliates, successors, officers, directors, managers, attorneys, agents or Executives.

(3)    under the heading “16. Choice of Law; Jurisdiction”:

All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada. Any lawsuit relating to this Agreement and/or Executive's employment shall be brought exclusively in the state or federal courts of Nevada, and the parties' consent to the laying of venue in, and the exercise of personal jurisdiction by, such courts.

19    Dr Mintas entered into negotiations with PlayUp US about the renewal of the Employment Agreement, some of which are described below. As those negotiations were unsuccessful, the Employment Agreement expired on 30 November 2021.

Negotiations with FTX

20    On 27 August 2021 PlayUp entered into an agreement with Alameda Ventures Ltd, a subsidiary of FTX Trading Limited, by which it offered Alameda the opportunity to participate in an unsecured convertible note offering on the terms set out therein and to enter into discussions for the potential partial or full acquisition of the shares in PlayUp.

21    According to Mr Costa the negotiation of the proposed sale of PlayUp’s shares was subject to a due diligence process over a period of approximately 10 weeks. Although Mr Costa was not directly involved in that process he received updates on its progress.

22    By early November 2021 Mr Costa was involved in plans to finalise the sale to FTX including by travelling to the Bahamas, where FTX was based, to meet with its key personnel.

The plans to meet with FTX

23    On or about 7 November 2021 Mr Costa became aware that Dr Mintas had informed Mr Simic, via a WhatsApp message, that she would not attend a meeting with FTX about the sale unless she had entered into an “extended contract” with PlayUp.

24    On 9 November 2021 Mr Simic sent an email to Dr Mintas with subject “FTX deal” (9 November Email) which provided:

Sell Price: $450m

FTX Buy PlayChip off certain People: $105m

70/30 Cash/FTX Scrip from the at the New Valuation: $450m

FTX: Sign On Stock at PlayUp Key Staff at new valuation (Daniel/Laila/Mic/Key Staff): $65m

FTX Approval to Pay staff a “Success Bonus” (From PlayUp Current Cash):

FTX Agree to Ongoing Wages:

FTZ Agree to Bonus Level 1:

FTX Agree to Bonus Level 2:

25    Mr Costa said that he became aware of the 9 November Email on 9 or 10 November 2021 upon Mr Simic showing it to him. Mr Costa understood that email had been prepared for the purpose of internal discussion between Mr Simic, Dr Mintas and himself and not for the purpose of providing a list of conditions to which FTX was required to agree in order to complete the sale transaction. Mr Costa recalls that he, Mr Simic and Dr Mintas were intending to meet to discuss the points raised in the 9 November Email but that meeting did not proceed because Dr Mintas started to make threats. The matters raised in the 9 November Email were not for discussion at the meetings which took place with representatives of FTX on 11 and 15 November 2021 described below. Dr Mintas said that she did not threaten PlayUp or PlayUp US.

26    On 10 November 2021 Mr Simic sent an email to, among others, Dr Mintas in which he stated (as written):

Laila,

You were invited to the Bahamas to meet with Sam (FTX) on same email as Mic and myself.

I was hoping we were going to talk about it yesterday before it got heated.

Hoping you can still be there fo the meeting.

Note: I have always wanted you to go to the meeting.

Daniel.

27    On 11 November 2021 Dr Mintas responded to Mr Simic’s email stating:

Hi Dan,

As discussed, I am happy to be there if I have a contract beyond the 30th of Nov with PlayUp. Otherwise, it doesn’t make sense for me to be there.

Kind regards,

Laila

28    On 11 November 2021 there was a meeting which took place by Zoom between representatives of PlayUp and representatives of FTX. Messrs Costa, Simic and Benson attended on behalf of PlayUp and David Ma and Avi Dabir attended on behalf of FTX. According to Mr Costa, the purpose of the meeting was to confirm arrangements for the proposed in person meeting scheduled to take place on 15 November 2021 in the Bahamas. He recalls that in the course of the meeting Mr Benson informed the representatives of FTX that Dr Mintas’ employment contract was coming to an end and that there were some significant challenges with the terms of renewal being sought by her. Mr Costa also recalls that Mr Benson said words to the following effect:

Laila is seeking an annual salary of $1 million and an increase in equity in PlayUp to 15%. Negotiations are continuing but they are not going well and there is a real prospect that Laila may not be with PlayUp by the time the FTX sale closes. Alternatively, if she is able to obtain her terms, the equity share increase that she is seeking will affect the ultimate sale price for FTX. We want to be upfront with you about that.

Mr Costa recalls that in response one of the FTX representatives, he believes Mr Dabir, said words to the following effect:

There will be no pushback on the valuation or price by FTX. Given the situation with Laila, it makes sense for the two of you to be the ones who come to the Bahamas and meet Sam. Subject to that meeting it is a done deal.

Mr Costa understood the reference to the “two of you” to be a reference to Mr Simic and himself and explained that the reference to “Sam” was a reference to Sam Bankman-Fried, chief executive officer of FTX.

29    On or about 11 November 2021 Mr Costa became aware that Dr Mintas was planning to travel to the Bahamas. This was at a time when Dr Mintas’ requests in relation to the renewal of the Employment Agreement had not been resolved such that Mr Costa had not expected her to attend. In an email from Dr Mintas to Kendra Samuels of FTX, who it seems was making the travel arrangements for the PlayUp attendees to travel to the Bahamas, copied to, among others, Mr Costa, Dr Mintas informed Ms Samuels of her preferred travel arrangements.

30    On 13 November 2021 Dr Mintas sent an email to the “Board Members” of PlayUp and Mr Simic in which, among other things, she provided what she described as “an update” and stated that:

That’s the reason why I told Daniel already 6 weeks ago that I need a new contract and we agreed at that time on the conditions. I asked him to prepare the board approval process. Until today I still haven’t received any contract draft. Because we are running out of time, I was bothering Daniel since then on my contract every week and he told me that he was working on it. Because we are meeting FTX next week, four days ago I put again pressure on Daniel to send me the contract and – instead – Daniel was just trying to re-negotiate the conditions that we agreed on 6 weeks ago, from scratch. This led obviously to a big conflict between us. After this fight and 6 weeks waiting, finally he engaged the lawyers to set up a draft but I still don’t know what this will include and if my suggestion to solve the problem is accepted.

31    By email sent on 13 November 2021 to Dr Mintas, among others, Mr Costa stated (as written):

Thanks for the detailed update.

It’s unclear to me and perhaps the other board members on your specific conditions for your new contract. I don’t think Daniel can actually approve your new contract on his own.

I was however in the office last week and overheard your heated conversation with Ashley and Daniel. My understanding was Ashley explained under the corporation’s act the remuneration (including equity) you have asked for will not be possible without directors and shareholders approval and also noting it would cause a dilution effect to current shareholders. I am aware an offer to extend your current contract was proposed by Ashley to you, but didn’t meet your expectations.

With regards to meeting with FTX in the Bahamas next week, I have been copied on emails from you stating it’s no point you attending these meetings without your contract sorted. There was an online meetings scheduled with FTX for the 3 of us that you did not attend which went ahead with Daniel and I.

In this meeting it was discussed you would not attend the meetings at the Bahamas due to not having a contract from 1st December. FTX are very aware and accept the current and future state of the license/access agreements as per the spreadsheet that was prepared by you. It was made very clear to us the valuation of $450m would get no push back and they requested Daniel and myself get to the Bahamas ASAP to meet with Sam and discuss the deal.

With utmost respect for you, in my opinion it would be inappropriate for you to invite yourself or attend this Bahamas meeting with the planned path set forward to progress the transaction.

I sincerely want this transaction to work out for all of us and believe we are taking the right steps to achieve this.

I await to review the solution to your contract issue you are referring to and hopefully it can be resolved promptly.

32    On 15 November 2021 Dr Mintas responded to Mr Costa’s email set out in the preceding paragraph. In that email she stated (as written):

If you sent an email to all Board Members you need to stay with the truth.

Nobody expected Daniel to approve the contract by himself. As I said in my email below, I was the one asking for board approval because Daniel said he will find some “creative solution“ as you know, he always tries to go around things and I insisted on a clean and transparent solution.

Regarding the dilution that you mentioned, of course, dilution always happens if stock get issued. However, it is the always this process if Management gets an extended contract, that equity is used as part of the extension, especially if the Management has created a high valuation of the company. When I started with PlayUp, the valuation was $50 mio USD; now we have an offer of at least $450 mio USD on the table, and I even believe the valuation is much higher. As you know, companies like TheScore or Golden Nugget have a similar set up and are worth 2bn – while having less market access. The current valuation is created by the US business ONLY. FTX even asked me if they need to acquire the AU business as well.

That was reason why I told Daniel initially to not fly to the Bahamas before we have agreed on a higher valuation but you two went ahead. The truth is I asked Daniel for me to fly upfront to the Bahamas to try to negotiate a higher valuation on behalf of PlayUp because you guys got stuck at $450 mio and if I was successful, Daniel and Mic should have come in to close the deal. Instead, Daniel asked me if I wanted to kick him out of the deal and I explained to him that that’s not the case and I want more value for PlayUp.Dan tried for himself and maybe for you Mic to get some side deals done and the board and more importantly, the shareholders, have NO transparency on what’s going on since 3 month up to now. For me it’s even more suspicious that you don’t want me to be there, especially as I have been invited by FTX and Sam.

I wonder where you take your courage from to tell me that it would be “inappropriate” for me to join the meeting and “invite myself” as I have been invited by FTX. To make a deal for a business that I created in the US by myself without any support of you. Daniel couldn’t increase the value of the company in 7 years and lied to me and many other people many times when it came to stock, numbers of shares etc, told me that AU has an inhouse, proprietary wagering tech platform read when I joined (which you just finalized weeks ago, ask me being here for almost 2 years!). In contrary to you Mic, I created huge value within 12 months and you cost the company 100s of million by having not gotten the platform into the US yet. You have been with the company for 7 years and it took you this long to get the AU platform done. Maybe you need another 7 years to build an US platform? And you have the outrageousness to write me such an email and try to cut me out of the deal.

You and Daniel act negligently and not in the interest of the shareholders by telling me not to attend the meetings. Are you aware and did you tell FTX that those deals below won’t close if I am not involved anymore?

You are risking the entire deal here. @Richard Sapsford – you are copied. Please confirm that you read those emails. You guys will get sued by the shareholder (me included) if that goes wrong.

33    By email also dated 15 November 2021 Mr Sapsford responded to Dr Mintas’ email stating, among other things, that:

Thank you for the update regarding the market access agreements. Are you suggesting the current time, effort and resources the company has devoted to these market access agreements would be derailed if the company does not agree to the remuneration and equity stake increase you have proposed?

During the course of the past weeks I have had several discussions regarding the proposed structure of your revised contract. First and foremost, any final decision regarding the key terms of your contract would be subject to the requisite Board approvals and Shareholder process, in full accordance to the Australian Corporations Act. As a Playup board member yourself, you should be well aware Daniel does not have the sole power, capacity nor any authority to agree to any contract with the requested remuneration you seek.

In this regard, I note that you are suggesting an increase of 100% to your current remuneration combined with a substantial additional "carried" equity stake in the business. I also understand that without these key components in place, you will utilise your 6 weeks holiday leave effective immediately and potentially not return to Playup given the 6 weeks holiday leave extend past your contract expiration.

…

Representatives of FTX and PlayUp meet in the Bahamas

34    On 15 November 2021 the meeting between representatives of PlayUp and representatives of FTX took place in the Bahamas. Messrs Simic and Costa attended on behalf of PlayUp and Messrs Bankman-Fried, Ma and Ramnik Arora attended on behalf of FTX.

35    Mr Costa recalls that at the meeting Mr Arora did most of the talking and that the focus was principally on the numbers and the valuation of the PlayUp business. He recalls that only Mr Ma asked a question about Dr Mintas, querying whether “the situation with Laila [had] been resolved”. Mr Costa recalls that Mr Simic responded to Mr Ma’s query telling him that there remained a real prospect that Dr Mintas would not remain with the PlayUp Group by the time the sale to FTX was finalised and that they would be exploring other options. Mr Costa said that no follow up questions or concerns were raised and that he left the meeting with an expectation that the sale would proceed.

Subsequent events

36    On 24 November 2021 the board of PlayUp met. Messrs Simic, Costa, Sapsford, Drazin and Kerr and Dr Mintas attended the meeting. Mr Costa recalls that at the meeting Dr Mintas informed the attendees that:

(1)    she had made contact with Mr Bankman-Fried and other FTX employees;

(2)    after Messrs Simic and Costa had met with FTX on 15 November 2021 she separately met with Mr Bankman-Fried and two other representatives of FTX in the Bahamas and they then met on multiple further occasions;

(3)    on 23 November 2021 Dr Mintas spoke with Mr Ma of FTX about the potential transaction; and

(4)    FTX had advised Dr Mintas that it discussed with Messrs Simic and Costa the potential acquisition of the PlayChip Foundation and the eight key employees who were critical to a potential transaction. Dr Mintas said that FTX had been confused that the eight key employees put forward did not include those from the US business and they did not intend to proceed further with a transaction as they had concerns about the proposed terms.

37    The minutes of the board meeting which took place on 24 November 2021 record, among other things:

3    Matters for Discussion

3.1    Renewal of LM Appointment

LM noted the history to the current discussions regarding her potential appointment, including:

1.    When she originally joined the Company, her terms included a collective equity offering of 11% and a delayed annual salary of US$500,000 (subject to various metrics, including achieving 2 market access arrangements);

2.    The 11% in equity in the Company has subsequently been reduced to approximately 6.8% following additional capital raising activity of the Company; and

3.    LM had separately invested money personally into the Company during the capital raising activity.

LM stated that her existing equity holding should be increased to 15% of the current equity on issue in the Company, together with a revised annual salary of US$1m.

LM noted that:

1.    her work has led to the current potential transaction with a US$450 valuation for the Company and that she had exceeded her contractual targets of 2 market access arrangements;

2.    the US$1m salary is likely discounted compared to market analysis and had separately received an offer for other employment based on this rate and was previously receiving US$2m while employed by Sportradar;

3.    DS had previously discussed these requests with LM and was supportive of the proposal, subject to the relevant board processes and legal steps;

4.    LM wanted to ensure the process was transparent;

5.    a few weeks prior to this Board meeting, LM had understood that the terms of her a re-engagement to be agreed in principle and was only advised the terms were “ridiculous” prior to the Company having a further meeting with FTX for the potential transaction; and

6.    DS said the requests were “too much” and that he (as Global CEO) would not be entitled to ask for the equivalent remuneration.

3.2    Conversations regarding Potential Transaction

LM noted that:

1.    emails were sent from RS advising that she was not to meet with FTX regarding a potential transaction;

2.    after DS and MC met with FTX, she separately arranged a private meeting with the 3 individuals from FTX (CEOO, CMO, CEO) in her personal capacity on multiple occasions;

3.    during the conversations with FTX, they advised that during the conversations with DS and MC they had discussed:

a.    the potential acquisition of the PlayChip Foundation; and

b.    the 8 key employees critical to a potential transaction.

4.    FTX was confused that the 8 key employees put forward did not include those from the US business and that they did not intend to proceed further with a transaction as they had concerns around the terms being proposed;

5.    she did not want DS negotiating with FTX on her behalf regarding terms of her potential engagement;

6.    she did not believe DS had met with the CEO of FTX and the CEO was reluctant to proceed with DS in his current position;

7.    on 23 November 2021, she spoke with senior executive of FTX (David Ma) and they wanted to continue discussions with LM to assist in obtaining market access in the US, but do not feel comfortable proceeding with the Company if there are any proposals that they are not comfortable with, such as large bonus requests for key staff;

8.    DS had advised FTX that if the arrangements with LM and the Company did not continue, there was a new female or male US CEO lined up;

9.    she had tried to encourage FTX not to cease conversations with the Company regarding a potential transaction, but if they did, FTX had requested she go across to start their US sports betting business; and

10.    she would rather stay with the Company than go across to FTX.

3.3    Role of Global CEO

LM noted that:

1.    FTX advised they wanted LM to be involved in the Company from day 1 of any potential transaction and will otherwise not proceed with the proposal with DS in his current position;

2.    DS had done a good job to get the Company in its current position, but is no longer the appropriate individual to lead the Company;

3.    she had spoken with Matt Davey who was supportive of the push for LM to replace DS as Global CEO;

DS asked LM whether she believed that if a new contract was offered on the terms being requested that FTX would be willing to proceed with a transaction. LM stated that this contract would need to include her as Global CEO.

MC asked if the proposal for LM to take the role of Global CEO was tied to FTX proposal. LM stated that this wasn’t and needs to occur either way as the value for the company is to have a US based Global CEO and the person who generated the current company valuation should hold the title of Global CEO.

At 1.19 pm the Chair asked LM to leave the meeting as discussions were occurring relating to her employment terms and conditions.

3.4    Re-discussion - Renewal of LM Appointment

The Directors noted that in order to renew her agreement with the Company, LM was requesting:

1.    a net position of 15% equity in the Company;

2.     a base salary of US$1m; and

3.    to be appointed as Global CEO of the Company.

38    On 24 November 2021 very shortly after the board meeting, Mr Costa, among others, received an email from Mr Arora of FTX (24 November Email) in which PlayUp was informed that FTX had decided against a full acquisition. Mr Arora’s email included the following:

… There are a few concerns from our side:

1.    A large part of the value of the business is coming from the US licensure and market access agreements. Any potential acquirer would want to make sure these agreements are full proof. The current US team has been incredibly important to getting the market access agreements. To our surprise, key personnel from the US business are not a part of the future plans of the business.

2.    There seems to be mistrust and lack of communication between the US and Global business.

3.    The Global leadership has conflicts of interest and other business activities, for example, PlayChip. This could be competitive with PlayUp and may have legal ramifications.

4.    There is discontent within the team and the board on the valuations. We don’t want employees to feel that they’ve had to forgo better options and therefore aren’t motivated to work under FTX.

Based on these concerns which were discussed in your visit we’ve decided against pursuing a full acquisition at this time.

39    Mr Costa said that he was surprised and disappointed by Mr Arora’s email and concerned about his reference to their discussion because none of the matters raised in that email were in fact discussed at the meeting with FTX representatives on 15 November 2021 or the earlier Zoom meeting on 11 November 2021. Mr Costa also observed that FTX’s concerns were consistent with the matters that Dr Mintas had raised at the board meeting and, in the case of the third matter raised, consistent with assertions Dr Mintas had raised about PlayChip. So far as Mr Costa was concerned, those assertions were based on a complete misapprehension.

40    Following the board meeting on 24 November 2021 and after receiving the 24 November Email Mr Costa was, and remains, concerned that the matters raised by FTX were in fact raised as concerns by Dr Mintas in her separate meetings and discussions with FTX.

41    Since 24 November 2021 Mr Costa has become aware that Dr Mintas has engaged in private text messages on WhatsApp with FTX representatives. According to Mr Costa, Dr Mintas provided screenshots of some of those messages to Mr Sapsford who, in turn, shared them with him. By those messages Mr Costa understood that Dr Mintas had communicated with FTX and that she did not want other representatives of PlayUp to contact FTX.

THE PROCEEDINGS

The US Proceeding

42    As outlined at [4] above, on 30 November 2021 PlayUp US commenced the US Proceeding by the filing of a summons and Complaint. Dr Mintas is represented by counsel in the US Proceeding. Mr Popok, who has been specially admitted to the Nevada Bar and the Federal District for Nevada for that purpose, is the lead counsel for PlayUp US in the US Proceeding.

43    The Complaint arises out of the Employment Agreement. PlayUp US has filed a motion for leave to amend the Complaint which as at 13 April 2022, the date that Mr Popok swore his affidavit, was before the Nevada Court but, as I understand it, had not been determined.

44    In the meantime, in the Complaint the following claims are brought by PlayUp US against Dr Mintas:

(1)    a claim for breach of the Employment Agreement. In particular, PlayUp US alleges that Dr Mintas materially breached the confidentiality, non-competition and non-disparagement clause in that agreement by:

(a)    contacting Mr Bankman-Fried and advising him there was a conflict within management of PlayUp US, thereby causing the failure of the sale to FTX;

(b)    making threats to immediately approach gaming regulators and make statements, which are false, about PlayUp US and PlayUp with the hope that those statements would damage their reputation;

(c)    making threats to immediately approach the gaming regulators with the hope that certain licences or applications for licences in favour of PlayUp US would be terminated;

(d)    making threats to immediately approach various commercial, trading and business partners or associates of PlayUp US and PlayUp and to destroy those relationships by making false publications about those companies and/or Mr Simic;

(e)    making threats to immediately approach customers of PlayUp US and PlayUp and damage their relationships with those companies; and

(f)    making threats to take injurious steps to PlayUp US and PlayUp that would cause them to be placed into liquidation or bankruptcy;

(2)    a claim for breach of the implied covenant of good faith and fair dealing in the Employment Agreement. PlayUp US alleges that Dr Mintas breached her duty to it to engage in good faith and fair dealing by performing the Employment Agreement in a manner that was unfaithful to its purpose and denying its justified expectations under the Employment Agreement;

(3)    a claim for breach of fiduciary duty. PlayUp US alleges that Dr Mintas owed fiduciary duties to PlayUp US including by preserving the confidentiality of its trade secrets and other confidential information and restraining from making any disparaging communications about PlayUp US, its subsidiaries or employees and that she breached those duties by undertaking the conduct referred to at [44(1)(a)-(f)] above; and

(4)    a claim for violation of Nevada Uniform Trade Secrets Law. PlayUp US alleges that Dr Mintas may steal, take, copy, use or misappropriate its confidential information including valuable trade secrets in violation of the Nevada Uniform Trade Secrets Act and for the purpose of damaging PlayUp US for its refusal to acquiesce to her demands.

45    Putting costs to one side, PlayUp US seeks the following relief:

(1)    specific enforcement of a restrictive covenant in the Employment Agreement;

(2)    a temporary restraining order and injunctive relief enjoining Dr Mintas from:

(a)    engaging in making disparaging or derogatory statements about PlayUp US or its subsidiaries;

(b)    directly or indirectly taking commercial or proprietary advantage of, profit from, use or disclosure of PlayUp US’ confidential information as defined in the Employment Agreement; and

(c)    competing with PlayUp US for a period of six months from the date of termination of the Employment Agreement; and

(3)    a preliminary and permanent injunction consistent with the terms of the temporary restraining order referred to in the preceding subparagraph.

46    Mr Popok says that the damages that PlayUp US seeks in the US Proceeding will be limited to those damages it has suffered and punitive damages as permitted under Nevada Law.

47    On 30 November 2021 PlayUp US also filed an emergency motion for an ex parte temporary restraining order and preliminary injunction in the US Proceeding in order to preserve the status quo pending a trial on the merits, namely that Dr Mintas be ordered to comply with the restrictive covenants in the Employment Agreement including the non-disparagement clause.

48    On 3 December 2021 the Nevada Court granted the ex parte motion for a temporary restraining order requiring that Dr Mintas be temporarily restrained from engaging in any form of conduct or making statements or representations that disparage, portray in a negative light, or otherwise impair the reputation or commercial interest of PlayUp US and from breaching the non disparagement provision contained in cl 6(e) of the Employment Agreement.

49    From 1 December 2021 to 3 January 2022 the parties briefed the issue of whether PlayUp US was also entitled to a preliminary injunction prior to an evidentiary hearing before the Nevada Court on the issue.

50    On 5 January 2022 the Nevada Court denied the motion for preliminary injunction on the basis that PlayUp US had not met the requirements for obtaining such an order. That order also vacated the temporary restraining order which had been made on 3 December 2021.

51    On 7 January 2021 Dr Mintas filed an answer and counterclaim against PlayUp US and Mr Simic in the US Proceeding and on 28 January 2022 she filed a first amended counterclaim (FAC) in which, among other things, she attempts to add PlayUp as a defendant to the US Proceeding.

52    In the FAC Dr Mintas makes 10 claims. In summary Dr Mintas alleges that:

(1)    PlayUp US engaged in wilful acts not proper in the regular course of the US Proceeding including “filing affidavits that are demonstrably false based on documentary evidence, failing to provide the Court with [Mr] Simic’s email detailing the additional deal terms he sought from FTX, failing to provide the Court with the FTX email detailing why it was passing on the deal, wrongfully seeking (and receiving) a temporary restraining order, wrongfully seeking a preliminary injunction, and wrongfully appealing the denial of the preliminary injunction further causing her to incur attorneys’ fees and costs”;

(2)    PlayUp US and Mr Simic made numerous false and defamatory statements about her to others and that, at a minimum, they acted negligently in publishing the alleged false and defamatory statements;

(3)    PlayUp US and Mr Simic made false and inflammatory accusations against her and that they had knowledge of, or acted in reckless disregard to, the falsity of the publicised material and the false light in which Dr Mintas would be placed;

(4)    PlayUp US and Mr Simic engaged in extreme and outrageous conduct including by disparaging her to others in the industry and that, based on the egregiousness of their conduct, they must have intended, or at a minimum had reckless disregard for, causing Dr Mintas emotional distress and that she did suffer extreme or severe emotional distress;

(5)    PlayUp US failed to execute a new employment agreement with her after the Employment Agreement expired despite repeated assurances that it would do so. Dr Mintas further alleges that she relied upon these representations by not seeking other employment to her detriment;

(6)    PlayUp US acted fraudulently by intentionally misrepresenting to her that it would enter into a new employment contract all the while knowing that it would not do so;

(7)    a question remains as to whether this Court has jurisdiction over her and whether PlayUp can enforce the terms of her Employment Agreement in Australia when the agreement contains a Nevada forum selection clause. Dr Mintas alleges that she is entitled to a declaration that the ex parte order made by this Court has no force and effect against her;

(8)    PlayUp US and PlayUp have breached the Employment Agreement by, in the case of PlayUp US, failing to pay salary and wages and, in the case of PlayUp, failing to grant shares to her;

(9)    PlayUp US and PlayUp failed to act in good faith and failed to deal fairly with her under the Employment Agreement including by failing to pay her salary and wages and failing to issue shares in PlayUp; and

(10)    PlayUp US and PlayUp have unjustly retained the benefit of Dr Mintas’ services as chief executive officer of PlayUp US and as a board member of PlayUp without payment of adequate compensation.

53    Again putting costs to one side, Dr Mintas seeks the following relief in the FAC:

(1)    judgment against PlayUp US, PlayUp and Mr Simic;

(2)    unspecified compensatory, special and punitive damages;

(3)    maximum pre-judgment interest permitted by law; and

(4)    declaratory relief.

54    On 12 January 2022 PlayUp US filed an expedited appeal of the Nevada Federal Court’s denial of a preliminary injunction to the Ninth Circuit (Injunction Appeal).

55    On 7 March 2022 PlayUp US filed a motion to dismiss the FAC and on 25 March 2022 Dr Mintas filed a response to that motion. Thereafter the following steps were taken:

(1)    on 28 March 2022 PlayUp US and Dr Mintas each filed a motion for leave to amend their respective pleadings to meet a court imposed deadline for such practice. Dr Mintas’ motion was for leave to amend with a proposed second amended counterclaim (SAC) and PlayUp US’ motion was for leave to amend the Complaint with a proposed first amended complaint;

(2)    PlayUp US filed an emergency motion to adjourn motion practice on both parties’ pleadings until the Nevada Court can consider whether to grant either or both of the motions for leave to amend;

(3)    on 6 April 2022 the Nevada Court granted PlayUp US’ emergency motion referred to in the preceding subparagraph; and

(4)    on 11 April 2022 each of PlayUp US and Dr Mintas filed their respective oppositions to each other’s motions for leave to amend.

56    Mr Popok says that, based on his experience and knowledge of federal practice, he expects the following timetable to be implemented for the motions for leave to amend filed by PlayUp US and Dr Mintas:

(1)    PlayUp US’ and Dr Mintas’ replies to each other’s motions for leave to amend are to be filed on 18 April 2022 at which time the proceeding will be fully briefed and awaiting the Nevada Court’s decision. The Court may require oral argument or may rule on the papers;

(2)    if the Nevada Court grants Dr Mintas’ motion for leave to amend then there will be a new round of motions to dismiss practice against the new SAC filed by PlayUp US, PlayUp and Mr Simic which will take place in May 2022, with an expected ruling in June 2022;

(3)    if the Nevada Court denies Dr Mintas’ motion, then the briefing schedule on the FAC will resume with the filing of PlayUp and Mr Simic’s reply brief in support of their previously filed motions to dismiss and with PlayUp’s motion practice seeking dismissal of the FAC. That motion practice will take place in about May or June 2022 with a ruling thereafter;

(4)    if the motions to dismiss are granted Dr Mintas’ counter case against PlayUp US will be reduced to a single count breach of contract case and the case against Mr Simic and PlayUp will be dismissed;

(5)    if the motions to dismiss are denied in whole or in part then whatever surviving claims or parties remain will continue on the trial track already established, with discovery closing at the end of August 2022 and a trial date to be set thereafter in late 2022 or early 2023; and

(6)    the Nevada Court’s rulings on the motions to dismiss and the motions for leave to amend may not be the subject of any interlocutory appeal and the case will proceed to a jury trial. If it is alleged that the Nevada Court has made any errors of law and fact along the way, including concerning the motion practice, that can only be addressed by either or both parties on appeal to the Federal Ninth Circuit.

57    PlayUp had intended to file a motion to dismiss the US Proceeding for lack of subject matter and personal jurisdiction. However, in light of Dr Mintas’ motion filed on 28 March 2022 seeking leave to amend and file the SAC, the Nevada Federal Court adjourned the time for PlayUp to file its motion until after it rules on the pending motions for leave to amend filed by Dr Mintas and PlayUp US.

58    Notwithstanding the outcome of Dr Mintas’ motion for leave to amend PlayUp, as an Australian entity and not a party to the Employment Agreement, will file a motion to dismiss the US Proceeding as against it based on, among other things, lack of personal jurisdiction, lack of subject matter jurisdiction, comity and forum non-conveniens grounds. Once filed, Mr Popok anticipates that the associated motion practice will take place in late May or early June 2022 with a ruling thereafter. Mr Popok sets out a possible timetable for the hearing and determination of such a motion which would see it determined, at the latest, in about August or September 2022. Mr Popok also expresses his views on the likely outcome of that motion. It is not necessary to set those views out here.

59    Between 8 February 2022 and 29 March 2022 the parties to the Injunction Appeal filed their material and, as at 13 April 2022, were awaiting a hearing date for the appeal. However, it is possible that the Ninth Circuit may determine the appeal on the papers and dispense with oral argument. Mr Popok says that if oral argument is requested by the Ninth Circuit the hearing will likely take place in June or July 2022. Mr Popok anticipates that the Ninth Circuit’s ruling is likely to be made in September or October 2022.

The proceeding in this Court

60    As set out at [1]-[3] above, in this proceeding PlayUp alleges that Dr Mintas has breached the duties she owes to it in her capacity as a director pursuant to ss 181, 182 and 183 of the Corporations Act and seeks relief pursuant to s 1324 and s 1317H of that Act.

61    Sections 181, 182 and 183 respectively require a director to act in good faith in the best interests of a corporation and for a proper purpose; not to improperly use his or her position to obtain an advantage for him or herself or cause detriment to the corporation; and not to improperly use information obtained by him or her in his or her capacity as a director to gain an advantage or to cause detriment to the corporation.

62    In summary, in its statement of claim PlayUp alleges that Dr Mintas engaged in conduct which compromised, interfered with and jeopardised the proposed sale to FTX which caused FTX to withdraw from the sale transaction. Among other things, PlayUp alleges that, by reason of her conduct, Dr Mintas breached her duties owed as a director to it pursuant to ss 181, 182 and 183 of the Corporations Act and that, as a result of those contraventions, it has suffered loss and damage including by reason of FTX’s withdrawal from the sale transaction and by reason of the damage caused to its reputation and the reputation of its global business. No orders have yet been made for Dr Mintas to file a defence.

STATUTORY FRAMEWORK AND RELEVANT LEGAL PRINCIPLES

Summary dismissal

63    Section 31A of the Federal Court of Australia Act 1976 (Cth) empowers the Court to summarily dismiss a proceeding. That section relevantly provides:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

64    Rule 26.01 of the Federal Court Rules 2011 (Cth) provides that a party may apply to the Court for an order that judgment be given against another party because, relevantly, the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding or the proceeding is an abuse of process of the Court: see r 26.01(1)(a), (d) of the Rules.

65    In Fair Work Ombudsman v Austrend International Pty Ltd (2018) 273 IR 439; [2018] FCA 171 at [12]-[20] Gilmour J summarised the principles which apply to an application for summary judgment as follows:

12    It is well accepted the power to dismiss an action summarily is not exercised lightly. In Danthanarayana v Commonwealth of Australia [2016] FCAFC 114, the Full Court said, at [4], that:

…to summarily dismiss a proceeding, and thereby preclude a person from having their case determined on its merits at a final hearing, is a serious step taken only with great care and if it is possible to conclude with confidence that there is no reasonable prospect of success; this is so despite the fact that under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) … the power to summarily dismiss a proceeding is not dependent on the case being “hopeless” or “bound to fail” for it to have no reasonable prospect of success (Spencer v Commonwealth [2010] HCA 28 ; (2010) 241 CLR 118 at [17]–[26]).

13    Section 31A lowers the bar for obtaining summary judgment. The inquiry is whether there is a ‘reasonable’ prospect of prosecuting the proceeding or part of the proceeding, not whether a certain and concluded determination could be made that the proceeding or part of the proceeding would necessarily fail. Judgment may be granted even if it cannot be said the case is so clearly untenable that it could not possibly succeed: Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [51]–[60] (per Hayne, Crennan, Kiefel and Bell JJ).

14    Once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary. General or non-particularised denials will be insufficient to defeat the motion: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J, as her Honour then was, at [127].

15    Her Honour then said:

[130]    A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success…So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has “no reasonable prospect of success”. . . On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim.

…

[132]    I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party…I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.

16    In a separate joint judgment in Spencer, French CJ and Gummow J stated at [25] that:

Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.

17    Their Honours added at [26] that ‘[w]here an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant’. This is a reference to his Lordship's decision in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 260-1, in which he stated:

[M]ore complex cases are unlikely to be capable of being resolved [by way of summary judgment] without conducting a mini-trial on the documents without discovery and without oral evidence… that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.

18    In Jefferson Ford, Finkelstein J said at [23] that:

In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party's assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial.

19    In George v Fletcher (Trustee) [2010] FCAFC 53, Ryan and Logan JJ said, at [75], after referring to the judgment of Lindgren J in White Industries Australia Ltd v Cmr of Taxation (2007) 160 FCR 298, at [50]–[54]:

…[Section] 31A is not concerned just with pleadings but with substance, not form. The mere presence of a factual controversy, however trifling, implausible, tenuous or tangentially relevant is not a bar to the exercise of the power conferred by s 31A to grant summary judgment. That would be inconsistent with the way in which the phrase “no reasonable prospect of success” is to be read in light of s 31A(3) (and s 17A(3)).

20    Accordingly, the mere existence of a factual dispute is not necessarily a bar to a grant of summary judgment. Rather the Court is required to evaluate the quality and weight of the evidence. When this leads to a conclusion that the version of the facts asserted by the party resisting the motion is either so improbable, or fanciful, or trifling, or implausible, or tenuous then summary judgment must be granted. So understood there is, in such a case, no real issue of fact: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46]–[47].

Inappropriate forum

66    In Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-248 Deane J identified what his Honour saw as the “modern content of the traditional principles governing the power of a court…to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds”. His Honour said:

That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.

67    At 248 Deane J also observed that the power to stay a proceeding on that basis should only be exercised in a clear case and that the onus lays upon a defendant to satisfy the court in which the proceeding has been instituted that it is so inappropriate a forum for its determination that its continuation would be oppressive and vexatious to it.

68    That statement of principle was approved in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564 (per Mason CJ, Deane, Dawson and Gaudron JJ). In that case their Honours observed that the question of whether the local court was a clearly inappropriate forum focused upon the inappropriateness of that court and not the appropriateness or a comparative appropriateness of the suggested foreign court. In considering that question, relevant factors include the existence of any legitimate juridical advantage in being able to bring the proceeding in the chosen forum and whether the law of the forum is applicable in resolving the rights and liabilities of the parties. That latter factor has been described as a “material consideration” and “a very significant factor in the exercise of the Court’s discretion” but a factor that the Court should not focus on to the exclusion of all others: see Voth at 564-566.

DR MINTAS’ SUBMISSIONS

69    As I have observed above, Dr Mintas’ affidavits include material which amounts to submissions and which I have taken to be such. In particular in her affidavit dated 1 March 2022 Dr Mintas sets out the reasons why she contends that the proceeding ought either be summarily dismissed or, in the alternative, permanently stayed.

70    First, Dr Mintas submitted that she has not violated her duties or any of the positions she held with PlayUp. She submitted that PlayUp has not provided any written evidence for its allegations and has produced false affidavits prepared by people who are paid by it in some capacity and “are in a close, long-term relationship to Mr Simic”.

71    Secondly, Dr Mintas submitted that there is a duplication of processes because PlayUp and PlayUp US respectively applied for ex parte restraining orders from this Court and the Nevada Court. She said that identical claims are made in both proceedings.

72    Thirdly, Dr Mintas submitted that the Employment Agreement is governed by Nevada law and that the Nevada Court has exclusive jurisdiction in relation to it. She submitted that her position as a director of PlayUp was regulated through the Employment Agreement, that she did not receive any compensation for that role, additional to her compensation as an executive and thus the proceeding ought to be dismissed because Nevada law is the only applicable law for matters arising out of her Employment Agreement.

73    Fourthly, Dr Mintas contended that PlayUp “intentionally abused the court process” by moving this Court and the Nevada Court on an ex parte basis for restraining orders but by failing to provide to either Court the two most relevant emails: the 24 November Email, explaining why FTX did not proceed with the proposed transaction to buy PlayUp; and the 9 November Email, in which Mr Simic suggested doing side deals. Dr Mintas contended that the latter would have harmed shareholders and added to FTX rejecting the deal. Dr Mintas submitted that PlayUp did not provide those emails because it knew that the Court would not have issued an ex parte restraining order against her if they had been provided.

74    Fifthly, Dr Mintas noted that the temporary restraining order made against her in the US Proceeding has been removed.

75    In oral submissions Dr Mintas made a number of further submissions.

76    She again raised that the evidence relied on by PlayUp was given by people who were connected to it and submitted that it is therefore not independent. She contended that PlayUp could not produce any objective documentary evidence to support its contention that she had made threats or disparaging remarks but relies on alleged conversations and memories of people who are “on its payroll”. She said that there was simply no evidence that she had breached her duties owed to PlayUp and that she could prove that the evidence PlayUp relies on in that regard is not true.

77    Dr Mintas again submitted that it does not make sense for the US Proceeding and this proceeding to run in parallel as this would result in “two discoveries in two countries that are for the same duties”. She further submitted that “everything that … the court is requesting in Australia has been requested in the US and the other way around.” In summary, Dr Mintas submitted that the claims in the US Proceeding and this proceeding are “identical”, save that the US Proceeding is subject to “Nevada law” and this proceeding is subject to “Corporations law” and that it would be illogical for there to be “two different cases on two different continents with two different consequences”.

CONSIDERATION

78    I will consider each of the claims for relief sought by Dr Mintas in her interlocutory application in turn.

Should the proceeding be summarily dismissed?

79    As set out above, in this proceeding PlayUp seeks relief under the Corporations Act. As I have already observed, PlayUp alleges that Dr Mintas breached her duties owed to it in her capacity as a director under ss 181, 182 and 183 of that Act.

80    In broad terms there are two factual issues which will need to be resolved in order to determine PlayUp’s claim as pleaded: first, whether Dr Mintas engaged in conduct which compromised, interfered with and/or jeopardised the proposed sale transaction with FTX; and secondly, whether FTX withdrew from the transaction because of Dr Mintas’ conduct. In determining each of those issues the Court will, in turn, need to determine, as a matter of fact, what events led to FTX’s withdrawal from the transaction to acquire PlayUp.

81    To illustrate that is so and the nature of the factual issues that will need to be considered, PlayUp provided me with a document titled “Aide Memoire – factual matters in contest”. The Aide Memoire identified, by reference to the affidavits filed and served by each of PlayUp and Dr Mintas to date, the factual matters that are in contest between the parties and the available evidence which goes to those factual issues. It is apparent from that analysis that there are numerous factual issues to be resolved between the parties including for example: why Dr Mintas was asked not to attend the meeting with FTX in the Bahamas; how Dr Mintas came to attend a separate meeting with representatives of FTX in the Bahamas; whether that latter meeting compromised the proposed transaction with FTX; what factors led FTX to withdraw from the transaction and so on. In relation to each of those issues there is a factual contest based on the evidence filed to date.

82    That that is so is not only evident from the Aide Memoire provided by PlayUp but from a review of Dr Mintas’ affidavits in which she disputes a significant proportion of the factual matters relied on by PlayUp and puts a different complexion on, or makes a different analysis of, those facts. Those factual disputes can only be resolved after a hearing, with the benefit of hearing and considering the oral and documentary evidence.

83    Further, as recorded above, Dr Mintas contended that, insofar as the factual allegations included in the statement of claim are concerned, the witnesses relied on by PlayUp are not witnesses of truth. That is, Dr Mintas intends to put credibility in issue. In order to determine whether the witnesses relied on by PlayUp can be accepted, or whether their evidence should be rejected as untrue, the Court requires the benefit of a hearing.

84    Having regard to those matters, I am not persuaded to exercise the power to dispose this proceeding summarily. It is apparent that there are issues of fact to be determined in the proceeding. In order to resolve those matters it will be necessary to have a hearing, with the benefit of oral evidence, cross-examination and the disclosure and tender, where relevant, of documents. It cannot be said that PlayUp has no reasonable prospect of successfully prosecuting the proceeding. Rather, the material before the Court, including that relied on by Dr Mintas, reveals a number of factual disputes that need to be resolved in order to determine whether PlayUp’s claim will succeed.

Should this proceeding be temporarily or permanently stayed?

85    Similarly, I am not satisfied that it is appropriate to order a permanent stay. Dr Mintas has not established that this Court is a clearly inappropriate forum to determine the dispute. My reasons for reaching that conclusion follow.

86    First, the proceeding brought in this Court and the US Proceeding involve different plaintiffs and different causes of action. As set out at [4] above, the plaintiff in the US Proceeding is PlayUp US and the cause of action is for alleged breach of the Employment Agreement, more fully described at [42]-[59] above. In this Court the plaintiff is PlayUp and the cause of action is for alleged breach of the duties owed by Dr Mintas to PlayUp in her capacity as a director pursuant to ss 181, 182 and 183 of the Corporations Act and for compensation for those alleged breaches.

87    Secondly, as Dr Mintas submitted, the Employment Agreement includes a governing law and jurisdiction clause which provides that Nevada law applies to that agreement. However, contrary to Dr Mintas’ submission her position as a director of PlayUp was not regulated through the Employment Agreement. As PlayUp is not a party to the Employment Agreement, it cannot be bound by it including by the governing law and jurisdiction clause. The powers and duties of the directors of PlayUp are set out in its constitution and are governed by the Corporations Act and the general law in this jurisdiction.

88    Thirdly, the witnesses likely to be called in this proceeding are either based in Australia, that is, the officers and shareholders of PlayUp, or are likely to be based in the Bahamas, e.g. Dr Mintas, who now resides in the Bahamas, and possibly, representatives of FTX. They are not, it seems, based in the USA.

89    Fourthly, contrary to Dr Mintas’ submission, there is no duplication of process either in relation to the restraining order or the substantive relief sought in this proceeding and the US Proceeding.

90    Turning first to the restraining orders. In the US Proceeding, it was PlayUp US that sought such an order, not PlayUp. While the temporary restraining order was set aside by the Nevada Court, that decision is subject to an appeal. Dr Mintas has joined PlayUp to the US Proceeding by the filing of her FAC. However, once Dr Mintas’ application to amend her cross claim is determined, PlayUp intends to file a motion to dismiss the claim against it. Mr Popok’s uncontested evidence is that the Nevada Court will not accept that it has either subject matter jurisdiction or personal jurisdiction over PlayUp. In this proceeding it is PlayUp which has the benefit of an interim injunction.

91    As to the substantive relief sought in each proceeding, there are a number of fundamental differences. In the US Proceeding PlayUp US seeks relief based on alleged breaches by Dr Mintas of the Employment Agreement, as summarised at [45] above. In this proceeding PlayUp seeks relief for alleged breaches of the Corporations Act by Dr Mintas in her capacity as a director. The US Proceeding and this proceeding have each been brought against Dr Mintas acting in different capacities; the former as the CEO of PlayUp US and the latter as a director of PlayUp. In the US Proceeding PlayUp US seeks relief for breach of the Employment Agreement which is governed by Nevada law and in this proceeding PlayUp seeks relief pursuant to the Corporations Act and the general law.

92    Relevantly, Mr Popok’s uncontested evidence, given in the context of providing an opinion as to the likely outcome of PlayUp’s motion to dismiss the FAC, or if leave to amend is granted, the SAC, is that the Nevada Court is likely to defer to this Court on issues of Australian corporate law and decline to interfere with a proceeding before an Australian court. He expects that the Nevada Court will decline to adjudicate on matters of Australian law relating to directors’ duties under an Australian statute and a director’s fiduciary duty owed to an Australian corporate entity.

93    Fifthly, I address Dr Mintas’ submission that PlayUp abused the Nevada Court’s and this Court’s processes by not providing two emails: the 9 November Email and the 24 November Email. Insofar as the proceeding in this Court is concerned:

(1)    the evidence before me is that the 9 November Email (see [24] above) was for internal discussion purposes only and did not set out maters which were discussed with FTX; and

(2)    the 24 November Email is referred to in PlayUp’s statement of claim filed in this proceeding. As submitted by PlayUp the circumstances in which that email was sent and the facts relating to it are matters in issue in this proceeding to be explored at trial.

94    Finally, as established by Mr Popok’s evidence, there is a real possibility that a temporary stay of this proceeding pending resolution of the US Proceeding would cause significant delay in the determination of this proceeding. Relevantly, Mr Popok says that the earliest the US Proceeding is likely to be determined is the end of 2023 but it could be as late as 2025, depending on whether the proceeding itself, or various interlocutory steps taken along the way, are the subject of appeal.

CONCLUSION

95    It follows that Dr Mintas’ interlocutory application filed on 1 March 2022 should be dismissed. As Dr Mintas has been unsuccessful she should pay PlayUp’s costs of that application.

96    I will make orders accordingly.

Associate:

Dated:    3 August 2022