Thomas Benski & Marisa Clifford v Pulse Films Limited & Others

Facts

The applicants, Mr Thomas Benski and Ms Marisa Clifford, were the founders, directors and shareholders of Pulse Films Limited, an independent media and production company in which the Vice Group had acquired a majority stake in March 2016 under a shareholders' agreement conferring a put option over their remaining 22% holding. The applicants exercised the put option in April 2021, and on 8 December 2021 a sale and purchase agreement and a secured loan note were executed, the consideration being US$10 million in cash and loan notes of US$43,240,000, subordinated to a senior credit agreement in favour of lenders owed some US$450-475 million. After an initial payment and three instalments, the Vice Group failed from September 2022 onwards to pay instalments totalling US$20,430,000. The applicants served a forced sale notice in October 2022 but, on their case, were induced by repeated assurances from the respondents about the group's value, solvency and an imminent sale to the Antenna Group not to exercise the forced sale right or call on the guarantee given by Vice Holding Inc. The Vice Group entities filed for Chapter 11 bankruptcy in May 2023 and passed to the senior lenders on a credit bid of US$350 million. Alleging fraudulent misrepresentation and unlawful means conspiracy, the applicants applied against Pulse and three individual officers for pre-action disclosure of three categories of documents.