MA Fastmove Limited v Global Billpay Private Limited & Ors
[2024] EWHC 2922 (Comm)
Nederlandse Financierings-Maatschappij Voor Ontwikkelingslanden NV v Societe Bengaz SA & Anor
22 April 2024
[2024] EWHC 901 (Comm)
High Court
A bank (FMO) lent money to a company (Bengaz) that invested in a pipeline company (WAGPCO). Bengaz didn't repay the loan. The bank had a contract saying it got money from the pipeline company, but Bengaz took the money instead. The judge said Bengaz must repay the loan and give the bank the pipeline money, rejecting the pipeline company's request for the bank to cover its costs.
Key Facts
- •FMO, a Dutch development bank, lent Bengaz, a Beninese company, US$24,459,710 to finance its investment in WAGPCO, a Bermudan company operating the West African Gas Pipeline.
- •Bengaz defaulted on the loan, owing approximately US$56 million.
- •Security agreements granted FMO rights over Bengaz's shares and income from WAGPCO, including a Proceeds Account for WAGPCO payments.
- •Bengaz received payments from WAGPCO into other accounts, violating the agreements ('Missing Payments').
- •WAGPCO segregated further payments due to Bengaz ('Segregated Funds').
- •FMO sought summary judgment against Bengaz, and declarations and injunctive relief against both defendants.
Legal Principles
Principles for granting permission to apply for summary judgment under CPR 24.4(1)
DVB Bank SE v Vega Marine Ltd [2020] EWHC 1494 (Comm)
Principles for granting summary judgment under CPR 24.3
The LCD Appeals (Iiyama (UK) Ltd and others v Samsung Electronics Co Ltd and others) [2018] EWCA Civ 220
Power to grant declarations under section 19 of the Senior Courts Act 1981 and CPR 40.20
Financial Services Authority v Rourke [2002] CP Rep 14
Criteria for specific performance: adequacy of damages
Cavendish Square Holding BV v Makdessi [2015] UKSC 67; Evans Marshall & Co Limited v Bertola SA [1973] 1 WLR 349
Indemnity for innocent third parties complying with court orders
Clipper Maritime Co Ltd of Monrovia v Mineralimportexport [1981] 1 WLR 126; Cartier v British Telecommunications [2018] UKSC 28
Outcomes
Granted FMO permission to apply for summary judgment against Bengaz.
Valid service of proceedings and court jurisdiction established.
Granted FMO summary judgment for US$55,960,802.58 against Bengaz.
Bengaz failed to file a defence or evidence, and FMO's claim was well-founded.
Granted declaratory relief to FMO regarding the Proceeds Account, Segregated Funds, FMO's rights as receiver and attorney, and the Missing Payments.
Based on contractual agreements and trust principles.
Granted specific performance against Bengaz and injunctive relief against WAGPCO to ensure payments into the Proceeds Account.
Damages would be an inadequate remedy; clear contractual obligations exist.
Ordered Bengaz to disclose details of Shareholder Payments received since April 2009.
To address non-compliance with previous orders.
Rejected WAGPCO's request for indemnity from FMO.
WAGPCO not an innocent third party; its obligations to FMO are clear under English law.
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