Her Majesty’s Revenue & Customs v Hashu Dhalomal Shahdadpuri and another

Andrew Ang J:

[1] The plaintiff obtained a worldwide Mareva injunction against the defendants in England. Thereafter, the plaintiff commenced simultaneous proceedings in Singapore and Hong Kong against the defendants. The plaintiff claimed that the defendants were involved in an unlawful conspiracy to defraud the plaintiff through what is known as missing trader intra-community fraud (“MTIC fraud”). The plaintiff (alternatively referred to as “HMRC”) is, amongst other things, responsible for collecting, accounting for, and otherwise managing, the revenue of customs and excise; and the collection and management of value added tax (“VAT”) in the United Kingdom (“UK”). The defendants are Singapore residents and are the alleged officers and agents of an Indonesian incorporated company known as “PT Naina Exim Indo” (“PT Naina”).

[2] The modus operandi of MTIC fraud is as follows:

(a) a trader registered in the UK for VAT imports goods into the UK from a supplier in a member state of the European Union (“EU supplier”). Under Art 28c(A)(a) of Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the member states relating to turnover taxes and s 30 of the Value Added Tax Act 1994 (c 23) (UK), the importer is not required to pay VAT as such imports are zero-rated;

(b) the UK registered importer (“UK importer”) sells the goods to another party registered for VAT in the UK, known as a “Buffer”. The UK importer charges VAT on the consideration for these sales but the UK importer directs the Buffer to pay the purchase price of the goods together with VAT to a third party (“third party recipient”) outside of the UK’s jurisdiction;

(c) the UK importer then fails to account to the plaintiff for VAT properly payable (“output VAT”);

(d) the Buffer sells the goods directly or via a chain of traders to an exporter (“Exporter”) who pays VAT (“input VAT”) thereon and then exports the goods out of the UK; and

(e) the Exporter claims reimbursement of the input VAT which he paid on the exported goods from the plaintiff.

[3] The plaintiff claimed to have suffered loss in the sum of £40,391,100.01, taking into account the amount of input tax paid by the plaintiff on the reimbursement claims made by the Exporter and the output tax that the UK importer failed to account for. For a substantial number of these transaction chains, the plaintiff admitted that it was not able to identify the full transaction chain connecting the Broker to the UK importer.

[4] The relevant third party recipient in the present case is a company incorporated in Denmark, known as “Sunico A/S” (“Sunico”). The plaintiff alleged that several EU suppliers sold to the UK importer goods which they had purchased from Sunico. The UK importer in turn sold the goods to Buffers situated in the UK. Although accountable for output VAT charged for these sales, the UK importer directed the Buffers to make payment for the goods, together with VAT to Sunico. The UK importer then defaulted in making payment of output VAT properly payable to the plaintiff.

[5] A company incorporated in Indonesia, PT Naina, introduced some of the EU suppliers to Sunico and was paid commission in consideration. The defendants negotiated the commission agreement between Sunico and PT Naina, under which Sunico agreed to pay PT Naina a percentage of Sunico’s profits as commission. The plaintiff alleged that the commission payments to PT Naina between October 2002 and July 2006 totalled US$14,764,612. The plaintiff claimed that the commission payments were a “mechanism for the division of the proceeds of MTIC fraud amongst co-conspirators” and that the defendants are jointly and severally liable to the plaintiff in damages for the tort of conspiracy. Seen in its totality, the plaintiff’s claim is that the fraudulent conspiracy was to “unlawfully divert monies properly payable to the Plaintiff principally to Sunico and thereafter distributed to its co-conspirators”. The plaintiff obtained a Mareva injunction in Singapore against the defendants (“the Mareva injunction”). The defendants applied to strike out the plaintiff’s claim under O 18 r 19 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) and the inherent jurisdiction of the court. The defendants also applied to discharge the Mareva injunction.

[6] The defendants contended that the plaintiff’s claim for conspiracy was in effect an enforcement of UK revenue law in Singapore and ought therefore to be struck out under one or more of the grounds in O 18 r 19 or under the inherent jurisdiction of the court. The plaintiff argued that its claim was not an enforcement of UK revenue law, whether directly or indirectly but one based on the tort of conspiracy. As such, the issue between the parties was whether the plaintiff’s claim was directly or indirectly an enforcement of UK revenue law in Singapore.

[7] There is no dispute that the revenue rule applies if the plaintiff’s claim is an enforcement of UK revenue law. The dispute, principally, is as to the characterisation of the plaintiff’s claim. As such, a short discussion on the revenue rule will suffice. Dicey, Morris and Collins on The Conflict of Laws, vol 1 (Sweet & Maxwell, 14th Ed, 2006) (“Dicey”) at para 5-029 quoted Tomlin J’s observation in In re Visser [1928] 1 Ch 877 at 884 that:

Lord Keith of Avonholm gave the following widely quoted explanation for the revenue rule in Government of India v Taylor [1955] AC 491 (“The Government of India”) (at 511):

Lord Somervell of Harrow enunciates the rationale very clearly at 514:

Lord Keith’s explanation of the rationale of the revenue rule was endorsed more recently in the English Court of Appeal decision of Mbasogo and another v Logo Ltd and others [2007] QB 846 at [40], where it was observed at [41] and [50]:

[8] In Relfo Ltd (in liquidation) v Bhimji Velji Jadva Varsani [2008] 4 SLR(R) 657 (“Relfo”), a decision upheld by the Court of Appeal, Judith Prakash J observed at [55]:

It is necessary therefore properly to characterise the plaintiff’s claim. However, before doing so, it is also necessary to consider which system of law is applicable for this purpose.

[9] The characterisation of the plaintiff’s claim is a question for the lex fori. Several distinguished commentaries have opined that it is irrelevant that a foreign law has regarded a claim as one based on the foreign revenue law. As observed by Dicey ([7] supra) at para 5-020:

It has been observed in Cheshire, North & Fawcett, Private International Law, (Oxford University Press, 14th Ed, 2008) at pp 122–123 that:

[10] In the case of Metal Industries (Salvage) Limited v Owners of the S.T. “Harle” [1962] SLT 114, the French Government’s claim for arrears of compulsory contributions to the health insurance and family benefits scheme was dismissed by the Scottish Court as it was an attempt to enforce the revenue laws of a foreign state. Lord Cameron held that the characterisation of the claim was to be made in accordance to the lex fori (at 116):

[11] The English Court of Appeal held in United States of America v Inkley [1989] QB 255 that (at 265):

The Privy Council in Huntington v Attrill [1893] AC 150, in determining whether the substance of the claim before it involved the execution of the penal law of another jurisdiction, held at 155:

[12] It is clear therefore that the characterisation of the plaintiff’s claim is a matter for the lex fori, ie, this court. Nevertheless, the court may, where appropriate, have regard to the characterisation of the claim made in accordance with the foreign law. In so doing, the court should be mindful of the purpose for which the foreign law was applied to the characterisation process; it may be that the characterisation of the claim was made in the context of the interpretation of domestic legislation unique to the foreign forum. In those circumstances, the foreign characterisation of the claim may be of little assistance or relevance to the matter before the lex fori. Bearing these principles in mind, it is appropriate to consider the plaintiff’s argument that the facts of the present case are the same as those in the House of Lords’ decision of Revenue Commissioners v Total Network SL [2008] 1 AC 1174 (“Total Network”) and that this court should reach the same conclusion as to characterisation as that made by the House of Lords.

[13] In Total Network, the “carousel frauds” were similar to the alleged MTIC fraud in the present case. Total Network, a company incorporated in Spain, sold goods to a UK importer, Redlaw Ltd (“Redlaw”). Redlaw paid no input VAT as the imports were zero-rated, Spain being part of the European Union. In turn, Redlaw sold goods to another UK company but failed to account for VAT (“the output tax”) to HMRC. The goods were sold down a chain of traders in the UK to an Exporter (Alldech) which sold and exported the goods back to Total Network, thus completing one full circle. Alldech obtained reimbursement of VAT (“input VAT”) from HMRC. HMRC brought a claim against Total Network for unlawful means conspiracy in sums equivalent to the amounts of VAT which they claimed to have lost as a result of the carousel frauds.

[14] The plaintiff submitted that the House of Lords in Total Network decided that a carousel fraud claim (a specific type of MTIC fraud) is not a claim for tax. However, in my view, the assistance offered by Total Network, if any, is limited. There is no doubt that the House of Lords in Total Network faced the task of characterising the substance of the plaintiff’s claim. However, the question faced by the House of Lords was of a much more precise nature. Their Lordships had to characterise the substance of the plaintiff’s claim for the specific purpose of determining whether it contravened the fundamental constitutional principle enshrined in Art 4 of the Bill of Rights (1689) (c 2) (UK) in England. The discussion of the issue in Total Network was first laid out by Lord Hope of Craighead. The issue was whether the plaintiff’s claim, presented in the form of a claim for damages, was contrary to Art 4 of the Bill of Rights (per Lord Hope at [21]):

Lord Scott of Foscote defined the issue similarly where it was observed that (at [58]):

In the same vein, Lord Mance observed (at [111]):

[15] Indeed, Lord Mance emphasised that the appeal was brought only on the question whether the plaintiff’s claim was precluded by the Bill of Rights. This was the case even during oral argument before the House of Lords. Holding that the claim did not fall within Art 4 of the Bill of Rights, Lord Mance stated at [126]–[127]:

Lord Neuberger of Abbotsbury observed (at [168]):

[16] It is clear that the issue in Total Network ([13] supra) was whether the plaintiff’s claim was a levying of money for or to the use of the Crown without grant of Parliament. If it was, the claim would be struck out. It did not matter that the words “levying” or “recovery” of taxes were at times used interchangeably by the Law Lords; that did not detract from the fact that the characterisation made by the House of Lords was for a specific purpose, which was to determine whether the claim fell within the meaning of Art 4 of the Bill of Rights (1689).

[17] In my view, the fact that the English court found that a claim presented as one for damages upon the tort of conspiracy in the factual context of an alleged MTIC fraud, was not a levying of money for or to the use of the Crown within the meaning of Art 4 of the Bill of Rights (1689) does not preclude a Singapore court from determining, after a process of characterisation of the substance of the claim for the purposes of the revenue rule, that such a claim is in effect an indirect (if not direct) enforcement of UK revenue law to recover VAT. The revenue rule encompassses a much broader test with especial regard to indirect attempts to recover tax than the determination of whether such a similar claim fell within the scope of Art 4 of the Bill of Rights.

[18] In the characterisation of the plaintiff’s claim to determine if it is in substance, either directly or indirectly, a claim to enforce a foreign revenue law or an attempt to recover tax for another sovereign, the court has to take into account all relevant facts. It is important to consider the facts set out in the pleaded case, as well as the measure of loss claimed by the plaintiff. As will be seen below, the identity of the plaintiff may also go some way towards suggesting the nature of the plaintiff’s claim.

[19] The plaintiff submitted that its claim for losses was measured by the input tax reimbursed to the Exporter less what the plaintiff collected in output tax properly payable to it. Para 4(m) of the statement of claim stated as follows:

As submitted by the plaintiff, its claim may be represented by the equation:

[20] In similar vein, the first defendant submitted that ordinarily the total output tax should be equal to the total input tax credited to the respective taxpayers. This was presented graphically as follows:

But Total Output Tax is the sum of Output Tax collected and Output Tax which ought to have been collected but was not:

Following the plaintiff’s submissions,

Substituting:

Therefore:

[21] Lord Scott (in Total Network) found that the plaintiff’s claim was a claim for damages for loss caused by the fraudulent conspiracy; it was not a claim for tax. However, His Lordship made this finding because the sum claimed by the plaintiff in Total Network was the amount of input tax that Alldech (the Exporter) had claimed by way of reimbursement from HMRC. The plaintiff’s claim was not against Redlaw (the UK importer) for the amount of unaccounted output tax properly payable to the HMRC (per Lord Scott at [59]):

[22] In the present case, there is no allegation that the claims by the Exporter for reimbursement were illegitimate and not genuine. Indeed, the plaintiff’s counsel conceded that, as pleaded, the alleged conspiracy did not involve the Exporter. I must add that the decision to omit the Exporter from the statement of claim was a conscious decision made, even after the plaintiff had amended its claim, and the same position was maintained by counsel even at the very last hearing before me. It is undisputed that based on the plaintiff’s claim, the only party that could have wrongfully obtained reimbursements of input tax from HMRC in the whole factual matrix of MTIC fraud would have been the Exporter. If the claim was indeed against the Exporter, or had at least implicated the Exporter, it might have been arguable that HMRC was in essence making a civil claim for recovery of input tax which it had previously collected but had been deceived into reimbursing to the Exporter. Unlike a claim for recovery of unpaid output VAT, such a civil claim might arguably be distinguishable from a sovereign claim for recovery of a revenue debt. In the present case however, by omitting the Exporter from the alleged conspiracy (“the material omission”), the plaintiff’s claim is not in respect of the reimbursements paid out by HMRC. It was common ground before me that in the absence of conspiracy involving the Exporter as co-conspirator, the UK importer’s failure or default in payment of VAT does not affect the eligibility of the Exporter to make a bona fide reimbursement claim from HMRC. Equally, the failure (intentional or otherwise) on the part of the Exporter to make a claim for reimbursement does not absolve the UK importer from liability to pay any outstanding output VAT. It follows from the material omission that the losses were suffered by HMRC because of the UK importer’s failure to pay output tax, regardless of whether the reimbursements of input tax were wrongly paid out. The present claim is therefore essentially for the recovery of output tax properly payable (but not paid) by the UK importer to HMRC. As such, the present claim is different in a significant respect from the claim in Total Network where, as highlighted by Lord Scott (see above), the claim was against Alldech (the Exporter) for recovery of reimbursements wrongly paid out by HMRC. Where, as in Total Network, the Exporter was complicit in the carousel fraud, it did not matter whether HMRC’s claim was for recovery of the reimbursements which HMRC had been induced to pay out or for payment of the output tax.

[23] Turning now to the specific facts alleged in the statement of claim, the plaintiff averred that:

[24] Without doubt, in such circumstance HMRC suffered a loss in that while it did not receive output tax from the UK importer, it paid out to the Exporter, by way of reimbursement, input tax previously paid by the latter. However, the pleading stopped short of alleging that the Exporter was a co-conspirator. In the absence of such an averment, the Exporter’s claim for reimbursement could well be legitimate. As earlier observed, the UK importer’s failure to pay output VAT does not affect the eligibility of the Exporter to make a bona fide claim for reimbursement of input VAT from HMRC. Therefore, the plaintiff’s claim remains essentially one for recovery of output VAT which the UK importer defaulted in paying and instead caused to be diverted to Sunico. The plaintiff pleaded that:

In addition, it was pleaded that:

[25] It is clear that the plaintiff was seeking to recover the uncollected output tax properly payable by the UK importer to the plaintiff that had been diverted from the UK importer to Sunico. First, the UK importer directed the Buffer to pay the purchase price of the goods together with VAT to Sunico. Part of the output tax was then diverted to PT Naina with the alleged help of the defendants under the guise of a commission agreement. Based on the pleadings, the essence of the claim was for output tax properly payable to the plaintiff but diverted to Sunico. Unlike the factual matrix in Total Network, there was no allegationthat the input tax reimbursed by the plaintiff to the Exporter was channelled to Sunico/PT Naina.

[26] As alluded to earlier, Total Network ([12] to [17] supra) is not a decision on the characterisation of a claim for the purposes of the revenue rule. Obviously, the House of Lords was not required to characterise the claim for the purpose of determining whether it was in substance an attempt to enforce foreign revenue law. In this respect, I find more of assistance the decision of Peter Buchanan Ld and Macharg v McVey [1955] AC 516 (“Peter Buchanan”) and the local decision of Relfo ([8] supra). In Relfo, a decision upheld by the Court of Appeal, a company became liable to pay a substantial amount of income tax to the United Kingdom Inland Revenue (“UKIR”) as a result of a highly profitable property transaction. The directors of the company diverted to different entities moneys which would otherwise have been available to pay the tax. When the company became insolvent, a liquidator was appointed to recover the moneys. The liquidator caused an action to be brought by the company against the defendant for knowing receipt of moneys wrongfully disposed of by the directors of the company. The defendant argued that the liquidator’s claim on behalf of the company was brought for the purpose of enforcing a foreign revenue debt in Singapore. The plaintiff disagreed, arguing that it was not a claim brought by the UKIR and that the UKIR did not fund the plaintiff’s claim nor direct the liquidation proceedings. The court rejected this argument and found that the claim was one to enforce a foreign revenue debt in Singapore (at [70]):

In the result, although the court was satisfied that on the facts a prima facie case of knowing receipt had been made out against the defendant, it disallowed the claim as having been brought for the purpose of indirectly enforcing a foreign revenue debt.

[27] In Peter Buchanan ([26] supra), the plaintiff company was a company which had been put into liquidation by the revenue authorities of Scotland in respect of a very large claim for excess profits tax and income tax. The liquidator was essentially a nominee of the revenue. The defendant was the majority shareholder and managing director of the plaintiff company who had set up a series of transactions with the purpose of transferring the funds of the plaintiff company to Ireland and then decamped to Ireland so as to avoid paying taxes. The liquidator caused the plaintiff to sue the defendant to recover the moneys transferred. The summons claimed an account of all moneys due to the company by the defendant as director, trustee and agent and payment of all sums so found due. The Irish court considered the various cases on the enforcement of foreign revenue and penal laws and held that although the transaction was a dishonest transaction designed to defeat the claim of the revenue in Scotland, the claim had to be rejected because the proceedings were in substance an attempt to enforce the Scottish revenue laws in Ireland and the Irish court would not lend its aid for this purpose. As such, the claim was dismissed even though the court was clear that the defendant had been the perpetrator of a dishonest scheme to defraud the revenue authorities. Lord Keith of Avonholm in Government of India ([7] supra) (at 510) made the following observations of the decision in Peter Buchanan:

[28] The court in Peter Buchanan found that the revenue authority knew that it would not have any chance of success if it brought proceedings in its own capacity, and had therefore attempted to recover the revenue debt through bankruptcy proceedings (at [529]–[530]):

[29] As can be seen from Relfo and Peter Buchanan, the intervening liquidation proceedings did not prevent the court from finding that the liquidator’s claim was in substance one to enforce a foreign revenue debt. In my view, the argument for the application of the revenue rule is even stronger in the present case. The present claim was brought by the authority conferred by the UK Parliament with the power and responsibility to recover VAT, under the Value Added Tax Act 1994 (c 23) (UK) and the Commissioners for Revenue and Customs Act 2005 (c 11) (UK). Any moneys recovered by the present claim would restore the HMRC’s tax coffers to the position they would have been in if VAT output tax had been collected. I should add, however, that I am not suggesting that any claim brought by a tax authority ipso facto amounts to a claim to enforce revenue law. The relevance of the plaintiff’s identity must necessarily be determined within the factual context of the claim.

[30] Having considered the above factors in totality, and based on the reasons given, I found that the plaintiff’s claim to be in substance and in effect an attempt to recover the uncollected VAT (output tax) properly payable to the plaintiff. The cause of action pleaded as a claim based on the tort of conspiracy for which a remedy in damages is sought is in substance an attempt to recover UK Value Added Tax extra-territorially. Such a claim is contrary to considerations of public policy. The claim was thus struck out pursuant to O 18 r 19 (with emphasis on O 18 r 19(1)(d)) as well as in the exercise of the inherent jurisdiction of the court. In consequence, the Mareva Injunction was also discharged.

[31] The plaintiff argued in the alternative that, “even if [its claim] were in any way an enforcement of foreign revenue law to pursue substantive relief in Singapore, that [was] not being done”. The plaintiff argued that it “[did] not seek to have the substantive dispute between the parties determined in Singapore”, since it had stayed its own proceedings in Singapore. As such, the plaintiff argued that the Mareva injunction was simply the rendering of assistance to the ongoing proceedings in the UK.

[32] There were no authorities provided to support the plaintiff’s arguments. Furthermore, the plaintiff could not explain how the existence of a Mareva injunction in Singapore could render assistance to the UK proceedings other than the subsequent enforcement and satisfaction of the UK judgment in Singapore, in the event that the plaintiff succeeded in the UK proceedings. The plaintiff’s argument was therefore a mere attempt to delay the application of the revenue rule at the expense of the defendants. I therefore rejected the plaintiff’s alternative argument.

[33] After I allowed the defendant’s application to strike out the plaintiff’s claim, a Recorder in the High Court of Hong Kong dismissed a similar application by the same defendants in Her Majesty’s Revenue & Customs v Hashu Dhalomal Shahdadpuri and another, High Court of Hong Kong, Court of First Instance, Miscellaneous Proceedings No 938 of 2010. In the course of further arguments before me, the plaintiff’s counsel referred me to the Hong Kong decision and argued that it was of persuasive value. I was of the view that the decision offered little assistance.

[34] The learned Recorder had at first observed, from counsel’s submissions, that some of the Brokers might be wholly innocent and uninvolved in any alleged conspiracy. At [13] in the judgment, he stated:

If the Brokers were innocent, there would be no basis for the plaintiff to seek to recover from them the input tax reimbursed to them. If the learned Recorder did allow that some of the Brokers might have been innocent, it is surprising that further on in the judgment the learned Recorder regarded the refund of input tax to the Brokers to be part of the “whole fraudulent chain”. In this regard, he appeared to have been misled by Mr Ma, counsel for HMRC whose submission was captured in [15] of the judgment as follows:

It is patently clear that if the refund was extracted from HMRC to fund the carousel, the Brokers could not have been innocent.

[35] It would appear that, in the learned Recorder’s mind, the entire chain, including the claim by the Brokers for refund, was fraudulent. This can be seen from [20] and [24] of his judgment:

If the refund claims tax were not genuine and were used to fund the carousel fraud, this would necessarily mean the Brokers were part of the conspiracy. The decision in Hong Kong is, therefore, significantly different from the present case where, as noted earlier there is no allegation that the Exporter is involved in the alleged conspiracy. In contrast, the plaintiff’s statement of claim filed in the Hong Kong proceedings sought recover of the reimbursement of VAT to the Brokers:

[36] At a late stage of the proceedings, I raised the question whether the requirement that it be “plain and obvious” applied to each of the grounds for striking out in O 18 r 19. Counsel for the plaintiff submitted that the statement of claim should only be struck out if it was plain and obvious that it disclosed no reasonable cause of action, pursuant to O 18 r 19(1)(a), or that it was a plain and obvious case of an abuse of process, pursuant to O 18 r 19(1)(d). Counsel for the defendants submitted that the courts are stricter in this requirement with respect to the first limb (under O 18 r 19(1)(a), that the claim discloses no reasonable cause of action) and adopts a slightly more flexible view to striking out claims under the fourth limb (under O 18 r 19(1)(d) that the claim is an abuse of court process).

[37] Upon further reflection, I came to the view that for purposes of the application before me, it was not necessary to reach a definitive conclusion. Suffice it to say that I was satisfied that the plaintiff’s claim was a plain and obvious attempt to recover unpaid output tax for a foreign sovereign. The fact that the parties’ detailed submissions took several sessions did not necessarily mean that there was no plain and obvious case for striking out. As L P Thean JA held in Bank of China v Asiaweek Ltd [1991] 1 SLR(R) 230 (“Bank of China”) at [6]:

[38] The court in Bank of China endorsed with approval the observations made by the English Court of Appeal in Drummond-Jackson v British Medical Association and others [1970] 1 WLR 688, (Lord Pearson at 695–696):

[39] Consider for the moment, if the striking out application was dismissed on the basis that it was not plain and obvious, what would the result be? The same question of characterisation would still have to be decided either at trial or by way of a preliminary hearing (pursuant to O 33 r 2) in the same way as had taken place before me. Counsel would still be submitting the same arguments based on the same facts found in the same set of pleadings. This was not a case where new evidence was required (for none was relied on in the process of characterisation) or that new facts had to be pleaded (for the plaintiff had already amended its pleadings). The sole dispute was as to the characterisation of the claim. Even if the trial judge was to take the plaintiff’s case at its best, where all the facts set out in the statement of claim were accepted as true, the same question of characterisation of the claim would still have to be answered before the judge.

[40] Indeed, in Relfo ([8] supra), although the court found from the evidence gathered during the trial that there was a prima facie case of knowing receipt made out against the defendant, the court had to deal with the inescapable question of characterisation, and the claim was in the end found to be an indirect enforcement of foreign revenue law and therefore dismissed on that basis. In this regard, the observation made by the Court of Appeal in Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin [1997] 3 SLR(R) 649 is particularly apposite (at [18]):

[41] For the reasons above, I affirmed my decision that the plaintiff’s claim be struck out pursuant to O 18 r 19 (with emphasis on O 18 r 19(1)(d)) and in the exercise of the inherent jurisdiction of the court and that the Mareva injunction be discharged. Nevertheless, the defendants undertook to observe the terms of the injunction until the final disposal of the appeal provided that the plaintiff filed the notice of appeal within a stipulated period of time (which, in the event, it has done).