Malcolm Lionel Robert Royle v Together Commercial Finance Limited
[2024] EWHC 2915 (Ch)
Astute Capital Plc & Anor v Countrylarge 444 Limited & Ors
19 July 2023
[2023] EWHC 1851 (Ch)
High Court
Two companies lent money, but the borrower didn't pay. The lenders sued, and the judge decided there's enough evidence for a full trial. The judge also stopped the borrower from selling off the assets before the trial. A side issue about paperwork mistakes was also sorted out.
Key Facts
- •Astute Capital PLC and Astute Capital Advisors Ltd (Claimants) lent money to CountryLarge 444 Ltd (Finlaw) and others.
- •Finlaw owes £1,924,554.55 plus interest, according to Claimants.
- •Claimants allege Finlaw and Astute Real Estate Ltd (ARE) hold proceeds from property sales on trust for ACA.
- •Alternative claim against Ms Cox and Ms Lawson for personal guarantees.
- •Claim against Mr Smith for breach of duty.
- •ARE initially provided an undertaking to hold £750,000.
- •Finlaw defendants counterclaimed, arguing loans and guarantees were invalid.
- •Claimants failed to file a Reply and Defence to Counterclaim on time.
- •Finlaw applied for reverse summary judgment and striking out of Claimants' claim.
- •Finlaw applied to strike out separate proceedings (case no. 001438).
Legal Principles
Relief from sanctions
CPR Part 3.9
Three-stage test for relief from sanctions (seriousness, reason for default, all circumstances)
Denton v. T.H.White [2014] 1 W.L.R. 3926
Summary judgment
CPR Part 24.2
Test for 'real prospect' of success in summary judgment applications
Mellor v. Partridge [2013] EWCA Civ. 477
Abuse of process
Chanel Ltd v. F.W. Woolworth & Co Ltd [1981] 1 W.L.R. 485; Woodhouse v. Consignia plc [2002] 1 W.L.R. 2558
Constructive trust; Proprietary estoppel; Section 2(5) of the Law of Property (Miscellaneous) Provisions Act 1989
Kinane v Mackie-Conteh [2005] EWCA Civ 45
Waiver of conditions precedent
Hendry v. Chartsearch [1998] CLC 1382
Equity treats as done that which should be done
Outcomes
Granted Claimants relief from sanctions for late filing.
The breach was not serious or significant; Claimants relied on Finlaw's initial agreement to an extension; Finlaw suffered no prejudice.
Dismissed Finlaw's summary judgment application.
Claimants have a real prospect of success based on the May 2021 Amendment Agreements, even without a formally executed charge; there are genuine issues of fact to be determined at trial.
Granted injunctive relief against Finlaw (with further submissions ordered); Granted injunctive relief against ARE (limited to information provision).
Balance of convenience favours the Claimants given the risk of irremediable prejudice if the proceeds of the property sales are dissipated. The September 2022 application was adjourned and it was open to the Claimants to reinstate or make a fresh application.
Dismissed Finlaw's application to strike out claim 001438 and to set aside ARE's undertakings.
The different case numbers were a clerical error; Finlaw lacked standing to challenge ARE's undertaking; there was no material non-disclosure.