16 MAY 2016 Joint Venture Agreement (“JVA”) entered into.
1 JULY 2016 Metrobank Advanced £10m to Defendant
Written deed by C
1 JULY 2018 First Instalment of £2m (plus interest) paid by Defendant
1 JULY 2019 Second Instalment of £2m (plus interest) paid by Defendant
APRIL 2020 Claimant wanted to terminate JVA
26 JUNE 2020 Defendant informed Bank no further payments
AUG 2020 Bank demanded payment in full
6 AUG 2020 Claimant paid sum of £6,322,440 to Metrobank
7 AUG 2020 Chief Exec Officer of C contacted Chairman of D demanding
payment by way of indemnity
11 DEC 2020 Claim Form and Particulars of Claim served
11 JAN 2021 Defence served
, Applicant’s Submission (10 mins)
Good morning Master, I am Millie Haywood of Collaws LLP. I act for the Claimant,
Nesbo Gas Plc. My friend Megan Hughes from Swallows & Co. My friend represents
the Defendant, Ezra Gases (Calcutta) Limited.
Master, this is the Claimant’s application under CPR Part 24.2 for summary
judgement on the grounds that the Defendant has no real prospect of successfully
defending the claim at trial and there is no other compelling reason why the case
should be disposed of at trial.
Master, do you have a copy of the bundle?
Thank you Master.
Master, the claim relates to a breach of contract. The Claimant is seeking payment of
the Guarantee Sum under the Joint Venture Agreement entered into between the
parties on the 16th May 2016.
Master, would you like me to summarise the facts?
Thank you Master.
Master, I have two submissions to make today. Firstly, that it was the intentions of
the parties to enforce the Indemnity Clause in the Joint Venture Agreement in the
event that the Claimant defaulted on its repayments to the Bank and the Claimant
had to pay. And secondly, that the Claimant did not breach the terms of the JVA
when it announced its intention to end the JVA and therefore, the JVA was valid
thus, entitling the Claimant to the Guarantee Sum.
Issue 1:
Was it an express and enforceable term of the Agreement that the Defendant would
indemnify the Claimant in the event that the Defendant defaulted on its loan
repayments?
Significant Fact:
The JVA makes it clear that the Claimant was entitled to a Guarantee Sum in the
event the Claimant had to make payment to the Bank in the event that the Defendant
failed to make its loan repayment.
Significant Evidence:
Clause 19(b) JVA:
Turning to the first issue Master, may I please refer you to Clause 19 of the Joint
Venture Agreement, page 6 of your bundle. Master, Clause 19(a) states the party’s
intentions for the Claimant to be the Defendant’s guarantor in respect of any loan
provided to the Defendant. Continuing with that same document may I please refer
you to Clause 19(b). This states that in the event that the Defendant defaults on its
loan repayment and the Claimant pays, the Defendant will pay the Claimant the
Guarantee Sum.
1 JULY 2016 Metrobank Advanced £10m to Defendant
Written deed by C
1 JULY 2018 First Instalment of £2m (plus interest) paid by Defendant
1 JULY 2019 Second Instalment of £2m (plus interest) paid by Defendant
APRIL 2020 Claimant wanted to terminate JVA
26 JUNE 2020 Defendant informed Bank no further payments
AUG 2020 Bank demanded payment in full
6 AUG 2020 Claimant paid sum of £6,322,440 to Metrobank
7 AUG 2020 Chief Exec Officer of C contacted Chairman of D demanding
payment by way of indemnity
11 DEC 2020 Claim Form and Particulars of Claim served
11 JAN 2021 Defence served
, Applicant’s Submission (10 mins)
Good morning Master, I am Millie Haywood of Collaws LLP. I act for the Claimant,
Nesbo Gas Plc. My friend Megan Hughes from Swallows & Co. My friend represents
the Defendant, Ezra Gases (Calcutta) Limited.
Master, this is the Claimant’s application under CPR Part 24.2 for summary
judgement on the grounds that the Defendant has no real prospect of successfully
defending the claim at trial and there is no other compelling reason why the case
should be disposed of at trial.
Master, do you have a copy of the bundle?
Thank you Master.
Master, the claim relates to a breach of contract. The Claimant is seeking payment of
the Guarantee Sum under the Joint Venture Agreement entered into between the
parties on the 16th May 2016.
Master, would you like me to summarise the facts?
Thank you Master.
Master, I have two submissions to make today. Firstly, that it was the intentions of
the parties to enforce the Indemnity Clause in the Joint Venture Agreement in the
event that the Claimant defaulted on its repayments to the Bank and the Claimant
had to pay. And secondly, that the Claimant did not breach the terms of the JVA
when it announced its intention to end the JVA and therefore, the JVA was valid
thus, entitling the Claimant to the Guarantee Sum.
Issue 1:
Was it an express and enforceable term of the Agreement that the Defendant would
indemnify the Claimant in the event that the Defendant defaulted on its loan
repayments?
Significant Fact:
The JVA makes it clear that the Claimant was entitled to a Guarantee Sum in the
event the Claimant had to make payment to the Bank in the event that the Defendant
failed to make its loan repayment.
Significant Evidence:
Clause 19(b) JVA:
Turning to the first issue Master, may I please refer you to Clause 19 of the Joint
Venture Agreement, page 6 of your bundle. Master, Clause 19(a) states the party’s
intentions for the Claimant to be the Defendant’s guarantor in respect of any loan
provided to the Defendant. Continuing with that same document may I please refer
you to Clause 19(b). This states that in the event that the Defendant defaults on its
loan repayment and the Claimant pays, the Defendant will pay the Claimant the
Guarantee Sum.
